The Dark Truth: Uncovering the Systematic Racial Biases within the United States Criminal

Justice System

Daniel J. LeMay

FP471H: Capstone Essay

Priscilla H. M. Zotti, Ph.D.
09 May 2017
 1

Introduction

Harold Wilson was thirty years old in April, 1988, with a lifetime ahead of him.1 What

his future may have ultimately become, changed when he was arrested on three counts of

murder. Wilson was found guilty of the charges and was sentenced to death for committing the

murders he had been charged with.2 Wilson, a young black man, was eventually exonerated of

the charges for which he was convicted of and became one of many victims of the inherent racial

biases all too frequently found within the United States criminal justice system. After almost ten

years of confinement on death row and the victim of multiple instances of severe mistreatment

while in confinement, evidence surfaced that showed the prosecution purposefully kept poor

African Americans from being members of the jury overseeing the Wilson case.3 Even with this

miscarriage of justice, it was not until 2005 and after spending sixteen years on death row, that

this now no-longer young black man was exonerated of the crime; a crime for which he had

consistently professed his innocence.4 When DNA evidence cleared Wilson of the crime, all he

had left to his name was sixty-five cents and a bus ticket home to Birmingham, Alabama.5

Wilsons case is just one of all too many examples of wrongful convictions and an overall

mistreatment of black people throughout the criminal justice system. By observing the example

of Wilsons experience of a miscarriage of justice, it can be argued that the effect that racial

biases within the criminal justice system can have a profound negative effect on an individuals

life.

1
Marvin Free Jr. and Mitch Ruesink, Race and Justice: Wrongful Convictions of African American Men (Boulder:
Lynne Rienner Publishers, Inc., 2012), 40.
2
Ibid.
3
Ibid.
4
Ibid., 41.
5
Ibid.
 2

As citizens of this nation, Americans have a constitutional right to receive fair treatment

of all citizens despite differences in culture, backgrounds, and races. The United States

Declaration of Independence states that all men are created equal...with certain unalienable

rights.6 However the criminal justice system, a system that our country relies on every day,

continues to experience fundamental marginalization. It can be argued that too frequently the

entirety of the United States criminal justice system falls victim of racial disparities and repeated

examples of unfair treatment of minorities, most notably African Americans. The criminal justice

system can have a life-changing impact on people and should be treated with the utmost respect

and discretion. The continuation of racial disparity contradicts the values on which the criminal

justice system and our nation were built. In order to solve this problem, it must first be

acknowledged that racism within the justice system and social inequalities are still largely

prevalent throughout the country. Although the criminal justice system has taken measures to

reduce the many biases within the system, it seems reasonable to suggest that inequalities will

remain an underlying influence on judicial decisions as long as racial biases exist.

This essay is meant to be a think piece backed by research that clearly demonstrates

many examples of the systematic racial bias that has become a common practice within the

United States criminal justice system and offer potential solutions to the problem. Procedurally,

there are other disparities throughout the criminal justice system, some of which will be

presented within this essay. However, the different inequalities found in the criminal justice

system in the United States are far too numerous to examine in depth here.

In order to understand the severity of this issue, it is necessary that this essay discuss as

6
Declaration of Independence (U.S. 1776).
 3

many of the most common practices that negatively impact people because of the racial biases

found in the judicial system. A simple examination does not justify the extent of the severity

behind each of these practices and further study of this is issue is suggested to all of the readers.

Although racial disparities can be seen throughout many procedures of the criminal justice

system, this essay limits its examination of the disparities that may be the most common,

specifically, those that include exploiting weak laws for unreasonable searches, use of excessive

force by law enforcement, lack of sufficient representation during trials, mass incarceration

throughout the nations prisons, and the unequal standards of sentencing. If others find that they

desire further inquiry, the footnotes found in this essay provide references of more dark truths

behind each injustice described herein. Each facet of the criminal justice system affects the lives

of not only the individual but the communities in which they reside. Accordingly, this essay will

also examine the social effects of inequality and how society could potentially resolve this issue.

Literature Review

The examination of racial bias in the United States judicial system begins with a number

of experts; specifically, a large portion of the information found in this review was originally

described by three specific authors. Marvin Free Jr.s African Americans and the Criminal

Justice System provides valuable statistical analysis which helps to initiate a more intensive

investigation behind the numerical disparities of the criminal justice system.7 Michelle

Alexander shows how African American communities have been affected by a system of social

control in her book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness.8

7
Marvin Free Jr. and Mitch Ruesink, Race and Justice: Wrongful Convictions of African American Men. Boulder:
Lynne Rienner Publishers, Inc., 2012.
8
Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New York: The New
Press, 2011.
 4

Finally, David Cole introduces the large role that race and class play within the criminal justice

system in his law review, No Equal Justice: Race and Class in the American Criminal Justice

System.9 These three authors are considered by others as experts in the field of social injustice

and each have positively impacted the effort to combat this issue by providing extensive

knowledge to their readers. As Ralph Waldo Emerson once said, Knowledge comes by eyes

always open and working hands; and there is no knowledge that is not power.10 In order to erase

the social biases that has infiltrated the United States criminal justice system, the American

people must be educated about this problem. With the knowledge that is provided by these

authors and all of the other sources throughout provided within this essay, many people could

potentially gain the desire to mend race-relations and take another step towards equality.

African Americans and the Criminal Justice System is an in depth study of the statistics

pertaining to African Americans within the United States criminal justice system.11 Although the

author, Marvin Free Jr., published his book in 1996, much of the statistical analysis and race

relations which are presented throughout the book are still germane to the current flaws that the

criminal justice system faces today. The authors view of the early black experience in America

and how it shaped the societal treatment of African Americans, seems to be a large factor in how

the criminal justice system has become a form of systematic racism. Frees ability to articulate

the mistreatment and social injustice experienced by blacks in the early 17th century, allows one

to begin to understand the African American mistrust in the current criminal justice system.12

Gaining this perspective is an important step in recognizing a major issue within the United

9
David Cole. No Equal Justice. 1 Conn. Pub. Int. L.J. 19-33 (2001): 24-28.
10
Ralph W. Emerson, Old Age (The Atlantic Monthly, 1862).
11
Marvin Free Jr. and Mitch Ruesink, Race and Justice: Wrongful Convictions of African American Men. Boulder:
Lynne Rienner Publishers, Inc., 2012.
12
Ibid., 28-29.
 5

States and may lead to the mending of race relations within not only the criminal justice system

but throughout all of society.

Free provided a historical account of the black experience in the United States.13

Beginning with the first appearance in the United States as slaves in the early seventeenth

century, the author explained how the treatment of African Americans evolved over time.14 In

addition, Free described how the inequality experienced over three hundred years ago, was still

largely prevalent at the end of the twentieth century.15 Each era of American history has

experienced significant changes in how African Americans are treated in society. However, the

common theme throughout much of the African American experience in United States history

has been their perceived collective subservient position in society, whether literally speaking

such as in the case before the Civil War or metaphorically speaking in regards to the continued

mistreatment of African Americans within the criminal justice system today.

It was not until 1821 that legislation in the United States codified the murder of a slave as

a felony rather than a misdemeanor.16 Free used examples such as this lack of acknowledgement

of equality to demonstrate how African Americans were viewed as property only to be governed

by their masters. Free also used this historical perspective as a means to compare how African

Americans are treated within the criminal justice system in modern life.17 Even after the

Emancipation Proclamation and the Civil War, black Americans rights were far from equal to

their white counterparts.18 Although the Fourteenth and Fifteenth Amendments provided African

13
Ibid., 27-41.
14
Ibid.
15
Ibid., 30-32.
16
Ibid., 29.
17
Ibid., 27-41.
18
Ibid.
 6

Americans with constitutional rights, their mistreatment and subservient place in society was far

from over.

After slavery was abolished, a new form of systematic control replaced it. In the years

immediately following the Civil War over 95% of the prison population in the South was

comprised of African Americans.19 The mass incarceration of African Americans could be

viewed as a system of control. Along with the drastic increase in the black prison population

came harsh treatment in the prisons specifically and poor living conditions within the African

American community. In some cases, the conditions in the prisons were considered worse than

the conditions of those who were enslaved before the Civil War experienced.20

Overall, throughout American history there seems to have been a disregard for the value

of black lives. Free used the story contained in the book Bad Blood: The Tuskegee Syphilis

Experiment A Tragedy of Race and Medicine by James Jones, as another example of how

African Americans have been treated as lesser people than the rest of society. In this book, many

people in a poor African American communities were purposefully infected with syphilis

without their permission.21 Instead of giving these infected people the proper medical treatment,

many died.22 To add to this tragedy, the government gave the surviving family members money

to bury their family members as long as the government could perform an autopsy on their

body.23 Although current race relations are not be as extreme as this particular example, African

Americans are still facing many hardships today. Currently in the United States, there are

movements such as Black Lives Matter that are still fighting to have the value of black lives

19
Ibid., 30.
20
Ibid., 31.
21
Ibid., 34.
22
Ibid.
23
Ibid.
 7

regarded as equal to the white populous. Much of what these groups are promoting deal with the

treatment of African Americans within the criminal justice system.

The socioeconomic status of the African American community is considered by many to

be far inferior compared to the average white person. Free also described the disparities African

Americans might face in areas such as average household income, employment, and education.24

Although there are many factors that may contribute to these disparities, the author explained

how the racial control of our criminal justice system can play a large role.25 Frees book was

published in 1996 thus the statistics included in it may be outdated. However, it can be argued

that by reviewing the same references as the author, it is evident that the disparities discussed in

the book are still prevalent today. Because of the lack of opportunity among the African

American population, it has become too common place for younger people in the black

community to find it more profitable to engage in criminal activity than the limited employment

opportunity within their local community. Sadly, as a result of this condition, crime is much

more common within the black communities than many others. However, this does not give the

criminal justice system an excuse to readily use discriminatory and prejudicial behavior. As a

system that vows to uphold the moral and fair treatment for all people, the criminal justice

system can no longer afford to be a factor in these inequities.

In Michelle Alexanders book, The New Jim Crow: Mass Incarceration in the Age of

Colorblindness, she described the current era as the age of colorblindness.26 Many could argue

that an age of colorblindness in a time of racial tension would be considered as a positive term,

24
Ibid., 206.
25
Ibid.
26
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New
Press, 2011).
 8

but Michelle Alexander argues that this may be the root of the current issue at hand.27

Beginning with the early history of the United States and leading up to this point in

history, racial oppression has been tailored to the needs and legislative constraints of the current

time. Although slavery no longer exists in the United States, a new racial order has replaced its

existence. In the age of colorblindness, it is no longer acceptable to refer to people by their race,

Alexander described how we have created a new label which is called criminals.28 Alexander

went on to describe the criminal justice system in the United States as a well-disguised system

of racialized social control.29 Throughout her book, the author compared the criminal justice

system in the United States to a racial caste system.30 This system is not nearly as obvious as

slavery or the Jim Crow Laws during the 19th and 20th century, however, Alexander submits that

African Americans who have been locked up in prison, have also been locked up away from

society.31 As such, they are commonly looked down on as members of a subservient class.

Alexander noted that in 1972 there were fewer than 350,000 people in prison which was

only .17% of the United States population. Today the number of prisoners exceeds two million

people, constituting .62% of the population.32 A disproportionately large percentage of the two

million prisoners are black.33 Many may find the so called War on Drugs as one of the leading

causes of this massive increase in the number of prisoners. Alexander is adamant that the War on

Drugs was largely brought into existence by social elitists as a way to maintain the system of

racial hierarchy.34 Many opine that during the transition from the Jim Crow era to the era of mass

27
Ibid.
28
Ibid.
29
Ibid., 4.
30
Ibid., 20-58.
31
Ibid., 184-185.
32
Ibid., 93.
33
Ibid., 1-20.
34
Ibid., 13.
 9

incarceration was that integration was the leading cause of crime. Many believed that the civil

rights movements along with the ensuing riots sensationalized crime.35 The author fully

described this point of view with a quote from Vice President Richard Nixon who said the

increasing crime rate can be traced directly to the spread of the corrosive doctrine that every

citizen possesses an inherent right to decide for himself which laws to obey and when to disobey

them.36 This frame of mind carried on into the years leading up to the explosion of prison

population which led the vast majority of American people to believe there were no

discriminatory actions taking place.37 The idea that all citizens have this inherent right is blinding

our society from the issue at hand. Mass incarceration as a system of control completely removes

the prisoners from societys sight and mind. Alexander postulates that mass incarceration has led

to our criminal justice system being based on the prison label, and not the prison time.38

Many in the United States have come to deny that the racial control system of mass

incarceration exists. In fact, a New York Times and CBS poll shows that in 2015 only 44% of

white people believe the criminal justice system is biased against black people whereas 77% of

black people believe it is racially biased.39 At times the picture of racism may be masked by the

history of violent images during the era of slavery or even later in history during the era of the

Jim Crow Laws. What many do not recognize is that the so-called inherent right of deciding to

obey the laws is not necessarily as inherent as previously thought. Alexander examined the harsh

effects that mass incarceration has had on African Americans, most notably within inner-city

35
Ibid., 39.
36
Ibid., 37.
37
Ibid.
38
Ibid., 93-96.
39
More Whites Share View Held by Minorities on Racism. Last modified January 28, 2016.
http://www.cbsnews.com/news/racial-polling-analysis-white-americans-racism-us/.
 10

communities.40 She described how often time, young African Americans within the inner-city

communities begin a life predisposed to crime.41 In some cities it is almost inevitable that a

young black male will serve time in prison at some point during their early life.42 The lasting

effects that this system of control has left on these communities has led to the decline of

legitimate employment opportunities.43 Consequently, this in turn, can promote an incentive to

engage in criminal activities such as selling or taking illegal drugs.

Alexander devoted much of her argument around data gathered from the War on Drugs.44

Throughout the book, the author studied the never ending cycle of discrimination by society

using the War on Drugs as a venue for social control of African Americans.45 Although this

method is not exploiting African Americans for their race such as slavery clearly did, nor

subordinating African Americans for their race as was the case with the Jim Crow Laws, mass

incarceration has similarly marginalized the black community, which sadly, has become just as

dangerous as past inequalities were to African Americans in the past.46 As a society we may

consider the United States as colorblind, but the author examined how the current criminal

justice system has many parallels that identify with the prior methods of social control.47 The

label of criminal may not be as obvious as some of the other demeaning labels African

Americans were given during their earlier history in America, it is evident that no matter what

label black Americans are given, a form of social control still exists. The criminal justice system

may be considered color blind in its policies, but the disparities and division that it has facilitated

40
Ibid., 132.
41
Ibid., 184.
42
Ibid., 6-7.
43
Ibid., 142.
44
Ibid.
45
Ibid.
46
Ibid., 40-58.
47
Ibid., 190-200.
 11

all too often are largely related to race.48 Thus, the American judicial system has created a

subservient class, restricting their rights and causing a negative effect on entire communities.49

This being the case, todays societal inequities could be called the New Jim Crow era, and

society in the United States should consider it as such.

David Coles, No Equal Justice, is meant to outline the double standards that has

caused the disparities within the United States criminal justice system.50 Cole explained that if

more people were to recognize the double standards that exist in the black and non-black

communities in America, it could potentially reduce the costs of crime while at the same time

protecting everyones constitutional rights.51 To aid in his discussion, the author used the

example of the O.J. Simpson double murder case in 1995.52 This case illustrated the racial divide

on issues within the criminal justice system. For black people, O.J. Simpsons acquittal was a

sign of hope, but for white people, the controversy behind the acquittal led them to see an

unsavory role that race and class could play within the criminal justice system.53 This case, Cole

opined, marked a pivotal time in the restoration of a sense of judicial equality in the black

community.54 Cole described how for once, white people recognized how double standards can

affect a case, and it only took a well-known celebrity and national coverage for this issue to

come to light.55

Cole argued that the criminal justice system was established with the exploitation of

48
Ibid.
49
Ibid,. 187-190.
50
David Cole, No Equal Justice (1 Conn. Pub. Int. L.J. 19-33, 2001).
51
Ibid., 24.
52
Ibid., 19-21.
53
Ibid., 20.
54
Ibid.
55
Ibid., 27.
 12

inequality.56 The vast majority of prisoners come from impoverished communities which

explained why many prisoners are uneducated, unemployed, or underclass citizens.57 Throughout

American history, there have been changes made in order to reduce the criminal justice systems

ability to exploit its inequality. The author highlights two Supreme Court cases that made an

effort to help defend the rights of the people who reside in these communities.58 In Gideon v.

Wainwright, the Supreme Court ruled that it was a constitutional right for the state to provide

attorneys to the accused who cannot afford a lawyer themselves.59 The Supreme Court then ruled

in Miranda v. Arizona that detained suspects must be informed of their constitutional right to an

attorney and against self-incrimination.60 Although these cases proved to be a step in the right

direction, they do not completely keep African Americans from being victims of the double

standards that still exist within the American judicial system.

Throughout his review, Cole made comparisons between the treatment of black people

and white people within the criminal justice system.61 He argued that there are two forms of

established criminal justice systems; one for the privileged and one for the underprivileged.62 By

exploiting the inequality and taking advantage of communitys lack of knowledge about the

criminal justice system, Cole suggested that law enforcement has created what he called an

illegitimate compromise between law enforcement and constitutional rights.63 Due to this

unequal compromise, Cole opined that these double standards that African Americans experience

has led to the lack of sufficient representation, illegal searches, unfair trials, and extreme

56
Ibid., 26.
57
Ibid., 22.
58
Ibid., 24-26.
59
Ibid., 24.
60
Ibid, 25.
61
Ibid.
62
Ibid., 26.
63
Ibid, 28.
 13

punishments.64

There is no question that more crime occurs within inner-city communities. In fact, a

study in 2011 described that the leading cause of death for black males between the ages of 15

and 34 was homicide.65 This criminal behavior has led to increased police presence and a

corresponding increased incidents of excessive use of force.66 Cole examined why inner-city

communities experience more crime.67 The author claimed that a criminal justice system that is

based on double standards can fuel resentment and encourage crime.68 Race relations within

these communities are far from socially acceptable. The people who resent the system are much

less willing to cooperate with a criminal justice system in which they view as unequal.

Consequently, the system which vows to uphold equality and fairness has lost much of its moral

force. Cole asserted that it is not possible to mend this resentment and reduce the crime within

these communities by using brute force alone.69 The author referred to historical accounts of

failed tyrannies, and determined that compliance within the criminal justice system must come

from the social acceptance of policies.70 Cole opined that communities are less likely to adhere to

the laws solely because of the impending punishments.71 However, laws become self-enforced if

the communities in which they live have accepted the governing policies as the social norm.

The double standards in the United States criminal justice system can only be recognized

by educating those who are outside of the communities being affected. It should not take a

nationally broadcasted case involving a celebrity in order to reveal this problem. Ironically, O.J.

64
Ibid.
65
Ibid., 24.
66
Ibid., 23.
67
Ibid., 31.
68
Ibid., 27-29.
69
Ibid., 29.
70
Ibid.
71
Ibid.
 14

Simpson used his own financial means to his advantage which is in contrast with the financially

disadvantage most African Americans find themselves when confronted with the criminal justice

systems double standards. Many inner-city communities have been destroyed by crime. For the

sake of these communities it is imperative to restore equality and erase these double standards so

one day they may also be restored.

Discussion

Exploiting Weak Laws

The purpose of law enforcement is evident in the name itself: to enforce the law that

governs their jurisdiction. This is imperative to ensure the safety and well-being of American

citizens. However, in some communities law enforcement agents have exploited the weak nature

of some laws in order to garner more power for themselves. Weak laws are particular laws that

could be purposefully vague, allowing too much discretion as to how they may be enforced in

the hands of law enforcement agents. The purpose of these types of laws is to allow law

enforcement to take the necessary means in order to reduce crime in their area. Although

reducing crime is a reasonable explanation for exploiting weak laws, this method could open the

door for less than justifiable methods of policing that promotes racial biases. As a nation, we

expect law enforcement agents to uphold the law in which they are tasked to enforce. However,

if they continue to exploit weak laws for potential nefarious reasons, especially in areas with a

large minority population, the distrust within those communities will almost certainly continue to

grow. Reducing crime should be the goal of all member of the law enforcement community, but

not at the expense of individual rights. This could cause a larger division in race-relations which

could then lead to increased crime rates.

 15

In 1942 the Uniform Arrest Act granted police officers the power to stop and frisk any

person in public if they were suspected of being involved in criminal behavior and posed a threat

to the general public.72 In 1968 the Supreme Court held that the stop and frisk method was

reasonable in the case Terry v. Ohio.73 In this instance, the police suspected Terry of potentially

robbing a pet store.74 After a brief inquiry, the police officer detained Terry and found that he

was in possession of a firearm.75 Chief Justice Warren stated in the majoritys opinion that a

reasonably prudent man would have been warranted in believing he was armed.76 Contrary to

Terry v. Ohio, later in 1968, the Supreme Court held in Sibron v. New York that in order to

conduct a search in this manner, the officer must reasonably suspect that the person posed a

threat to their safety or the general publics safety.77 In this case, the police officer had no

concrete indications of criminal behavior, but suspected that Sibron was involved in illegal drug

trade.78 The Court noted that all search and seizures should be predicated by constitutional

limitations.79 Although the Supreme Court recognized the importance of citizens maintaining

their Fourth Amendment rights, in years past, the stop and frisk method has expanded to be

multifaceted in nature.80 This resulted in police officers finding other ways to make the searches

reasonable in nature. The only requirement to justify conducting a stop and frisk search is that

police officers must be able to explain how they felt threatened in some way. A large amount of

72
Sam Warner, The Uniform Arrest Act, Virginia Law Review 28, no. 3 (1942): 315-347, accessed March 4,
2017, http://heinonline.org/HOL/Page?handle=hein.journals/oklrv50&div=28&g_sent=1&collection=journals.
73
Terry v. Ohio, 392 U.S. 1 (1968).
74
Ibid.
75
Ibid.
76
Ibid.
77
Sibron v. New York, 392 U.S. 40 (1968).
78
Ibid.
79
Ibid.
80
Omar Saleem, The Age of Unreason: The Impact of Reasonableness, Increased Police Force, and Colorblindness
on Terry Stop and Frisk, Oklahoma Law Review 50, no. 4 (1997): 456, accessed April 18, 2017,
http://heinonline.org/HOL/Page?handle=hein.journals/oklrv50&div=28&g_sent=1&collection=journals.
 16

the power and interpretation as how to use this now unconstitutional procedure had been left up

to police officers, which allowed for the possibility of exploiting weak laws, such as the stop and

frisk.

Despite the questionable nature of stop and frisk, police continued to employ this method

of search until it was deemed unconstitutional in 2013.81 In the years prior to 2013, New York

Citys police department had been a prime example of police officers exploiting their power and

conducted searches that many may have been perceived as unconstitutional. The New York Civil

Liberties Union (NYCLU) conducted an analysis that revealed more than five million innocent

citizens had been stopped and questioned by police from 2002 to 2015.82 Innocent New Yorkers

constituted almost 90% of all those stopped by police.83 In 2011, the highest number of recorded

stops in New York reached 685,724.84 Out of this total number, 88% of those stopped were

innocent of any criminal behavior.85 Interestingly enough, 53% of the total number were black

and 34% were Latino, whereas only 9% of those stopped were white.86 These disproportionate

statistics seem to suggest that when law enforcement exploited their power, and potentially

negatively affected minorities within these communities. Similar numbers of this nature can be

seen throughout the entire NYCLU analysis.87 Although the practice of stop and frisk has since

been deemed to be unconstitutional, it was, at one time in the past, considered to be a standard

operating procedure used by law enforcement officers. As such, the practice demonstrated just

81
Joseph Goldstein, Judge Rejects New Yorks Stop-and-Frisk Policy, The New York Times, last modified August
12, 2013, http://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rights-judge-rules.html.
82
New York Civil Liberties Union, Stop-and-Frisk Data, accessed April 18, 2017, https://www.nyclu.org/en/stop-
and-frisk-data.
83
Ibid.
84
Ibid.
85
Ibid.
86
Ibid.
87
Ibid.
 17

one of several ways in which law enforcement can loosely interpret laws in order to achieve a

desired level of power over their communities.

The Fourth Amendment in the United State Constitution gives the American people the

right against unreasonable search and seizures by the government without probable cause of

criminal activity.88 However, too often, there has been misplaced interpretations of this law that

has allowed law enforcement to essentially take away this right from individual Americans. One

example of the loose interpretation of this constitutional law is the use of traffic stops as means

of conducting a search of a person or their property. Many times the argument used for pulling

over a motorist is purposefully vague and leaves too much interpretation up to law enforcement.

The officers intent for a traffic stop is often times unknowable, thus leaving law enforcement

with the power to use their own discretion when choosing who to stop. D. Arthur Kelsey is a

justice on the Supreme Court of Virginia and in an opinion given early in his career he wrote,

So dense is the modern web of motor vehicle regulations that every motorist is likely to get

caught in it every time he drives to the grocery store.89 This opinion was in reference to a case

which brought into question the legitimacy of a traffic stop. The primary purpose of vehicle laws

and regulations is to keep everyone on the road safe. However, often times it can be argued that

law enforcement officers have used the breadth of traffic laws and regulations as means to stop

any motorist at their own discretion and not necessarily for the laws they are tasked to enforce.

Because the laws enforcing traffic stops can be so broad and prone to self-interpretation,

88
What Does the Fourth Amendment Mean? United States Courts, accessed March 17, 2017,
http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-
resources/what-does-0.
89
Ken Armstrong, How the Supreme Court Made It Legal for Cops to Pull You Over for Just About Anything,
The Marshall Project, last modified August 3, 2015, https://www.themarshallproject.org/2015/08/03/how-the-
supreme-court-made-it-legal-for-cops-to-pull-you-over-for-just-about-anything#.JVX8xqjTU.
 18

it is difficult for law enforcement to achieve a level of expertise on all of the laws they are

expected to enforce. This can allow an even more controversial interpretation of ones Fourth

Amendment rights. A case presented to the Supreme Court of Wisconsin outlined the power that

law enforcement has gained by exploiting weak interpretations of these types of laws. In the case

State of Wisconsin v. Richard Houghton Jr., Houghton was convicted of possessing a controlled

substance with intent to distribute.90 Houghton was stopped by a police officer for two reasons;

the first being, for not having a front license plate, and the second for having an air freshener

hanging from his rearview mirror which was said to obstruct the motorists view.91 Both of these

infractions were found to be not applicable to Wisconsin state law. However, the court ruled that

the intent of the traffic stop was still reasonable. Houghton filed a motion claiming that the

evidence gained in the search should be inadmissible in court but his motion was denied.92 The

defense argued that there was no probable cause for the traffic stop thus the police officer was

lacking the lawful means for conducting a search.93 However the court concluded that a police

officer may in appropriate circumstances and in appropriate manner approach a person for

purposes of investigating possibly criminal behavior even though there is no probable cause to

make an arrest.94

The precedent for Houghtons case was established by an earlier case which reached the

U.S. Supreme Court. Heien v. North Carolina was presented to the Court in 2014 and questioned

the legitimacy of law enforcement searches.95 Heien was pulled over for a broken taillight in the

state of North Carolina, but North Carolina law states that only one taillight is required to be

90
State of Wisconsin v. Richard E. Houghton, 2015 Wis. App. 354 Wis. 2d 623, 848 N.W.2d 904 (2015).
91
Ibid.
92
Ibid.
93
Ibid.
94
Ibid.
95
Heien v. North Carolina, 574 U.S. ___ (2014).
 19

operational.96 The officer who made the traffic stop testified that his decision was made in good

faith as he believed it was a state law.97 Similar to Houghtons case, Heiens vehicle was

subsequently searched and he was found to be in possession of cocaine. With an 8-1 decision, the

U.S. Supreme Court ruled that the Fourth Amendment permits additional searches so long as the

officer who mistook the law made the error in good faith.98 Justice Roberts delivered the

majoritys opinion citing that the Fourth Amendment allows leeway in its enforcement in order

to protect the community.99 Justice Kagan added that this should not be an excuse for officers to

be negligent in their duties and that there must be a stringent test in determining the reasonability

of the mistake.100 Justice Sotomayor was the only dissenting justice and proffered in her opinion

that ignorance of the law by those who enforce the law should not be considered reasonable

under the Fourth Amendment.101

Despite Justice Kagans warning in Heien v. North Carolina, law enforcement has grown

accustomed to exploiting the weak interpretation of the Fourth Amendment established by this

case. It is difficult to determine the intent behind every traffic stop which may have led to

officers disguising their racial discrimination with ignorance of the law.102 It has been suggested

that police forces within inner-city communities are acting in this manner with increased

frequency. Although the Fourth Amendment is meant to limit law enforcements power, this

loose interpretation seems to encourage illegitimate enforcement measures.

Along with utilizing the leeway determined by the Court in its interpretation of the Fourth

96
Ibid.
97
Ibid.
98
Ibid.
99
Ibid.
100
Ibid.
101
Ibid.
102
Robert Ward, Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No Place for a
Reasonable Person, (36 Howard L.J. 239, 1993), 252.
 20

Amendment in Heien v. North Carolina, law enforcement many times employs consensual

searches in a questionable manner. By definition, a consensual search is entirely voluntary.103

The consent must also pass what is called the reasonable person test which the criminal justice

system has implemented in order to dictate whether a reasonable person would believe that

consent was given in any particular instance.104 To many this test seems to be purposefully vague

in order to give law enforcement the benefit of the doubt and allow them to take action with the

purpose of keeping the community safe. This method of a consensual search is another law

which has been largely used on people who do not necessarily know their rights and

unknowingly agree to a search.105

Throughout history, many African Americans have felt threatened by law enforcement. A

poll from 2011-2014 only 27% of black Americans claimed they had a great deal of confidence

in the police force.106 Within inner-city communities today, the same feeling continues. If police

frequently abuse their power within African American communities, this behavior must also be

considered in the totality of circumstances found within the community itself. Many assume that

if a person was innocent then that person would willingly give consent to a search, but that also

assumes that all members of law enforcement are acting in good faith and conducting a proper

search. As evident in the example of stop and frisk, police officers have all too often

unconstitutionally abused and exploited the law, thus abusing their power in order to conduct

searches. Many of those affected by the exploitation reside within primarily African American

communities. The communities that witness forms of racial discrimination on a daily basis are

103
Ibid, 244.
104
Ibid.
105
Ibid, 252.
106
Frank Newport, Black and White Attitudes toward Police, Gallup, last modified August 20, 2014,
http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-police.aspx.
 21

much more likely to act impulsively and agree to a search out of fear. Ironically it works in law

enforcements advantage for people to be ignorant of their rights when police are tasked with

enforcing said law. On the contrary, many times, ignorance of the law works to an individuals

disadvantage when they impulsively agree to a consensual search out of fear. Although many

consensual searches have led to discovering individuals engaged in criminal activity, it does not

give law enforcement an excuse to continually abuse their power and conduct searches in a

discriminatory fashion. It required a judge to determine stop and frisk as unconstitutional in

order to deter police from employing that method of search. While law enforcement continues to

police their communities, it may behoove them to also police their own methods of enforcing the

law.

African Americans make up roughly 13% percent of the United States population

compared to 77% percent of the population being white.107 Despite this stark statistical fact,

black motorists were found to be three times more likely to have their vehicle subject to a search

than white Americans.108 Data collected from 2009-2015 showed that motorists in Connecticut,

Illinois, North Carolina, and Rhode Island allowed the most consensual searches.109 These

statistics allowed researchers ample data to compare and contrast between black and white

motorists. Within these four states, black drivers overall were found less likely to be in

possession of contraband than their white counterparts.110 The New York Times presented

graphs which represent the findings.

107
U.S. Census Bureau, Population by Race: 2010-2015, https://www.census.gov/quickfacts/table/RHI125215/00
(accessed March 29, 2017).
108
Bureau of Justice Statistics, Traffic Stops, https://www.bjs.gov/index.cfm?ty=tp&tid=702 (accessed April 25,
2017).
109
Sharon LaFraniere and Andrew Lehren, The Disproportionate Risks of Driving While Black, The New York
Times, last modified October 24, 2015, https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-
driving-black.html?_r=0
110
Ibid.
 22

Figure 1

Likelihood of Cars Searched by Race111

Figure 2

111
Sharon LaFraniere and Andrew Lehren, The Disproportionate Risks of Driving While Black, The New York
Times, last modified October 24, 2015, https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-
driving-black.html?_r=0
 23

Likelihood Contraband was found in Search by Race112

These two figures compare the likelihood of black and white motorists to be searched

along with the likelihood of black and white motorists that had contraband found during the

search. Figure 1 shows that in all of the researched areas black motorists were more likely to be

searched than white motorists. The largest discrepancy was experienced in Chicago, where black

drivers are 5.2 times more likely to be searched that white drivers. This raises concerns

considering Figure 2 shows that in all but two of the areas reported, black motorists are less

likely than white motorists to have contraband in their possession.

In addition to the statistics from these four states, a national survey was also conducted in

2011 that found only two percent of white people have had their vehicle searched whereas six

percent of black people had been searched.113 This seemingly shows that law enforcement may

very well intentionally targets black motorists when conducting vehicle searches. The apparent

disparity between black and white drivers being stopped can be related to the double standards

that David Cole mentioned in his book No Equal Justice: Race and Class in the American

Criminal Justice System.114

Exploiting weak laws in order to conduct unreasonable searches is yet another tool that

lends itself to the systematic racial bias of the United States criminal justice system. This sort of

discrimination causes social and psychological effects in the communities that experience such

injustices. This inequity can certainly foster distrust and delegitimizes the purpose of law

112
Ibid.
113
Erin Woods, Driving While Black: Racial Profiling and Traffic Stops, Ohio State University Moritz College of
Law, last modified May 2015, http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/driving-while-black-racial-
profiling-and-traffic-stops/.
114
David Cole, No Equal Justice (1 Conn. Pub. Int. L.J. 19-33, 2001).
 24

enforcement. Criminalizing black people without probable cause can easily lead to racial

profiling. Law enforcement agencies must recognize this issue and become aware of the inherent

racial bias behind this exploitation. It is within the power of law enforcement to be educated on

this issue. Ignorance should not be an excuse for those who are expected to uphold the law.

Additionally, ignorance within the communities most affected should also be minimized. The

citizens should become more aware of their individual rights in order for law enforcement to no

longer take advantage of their lack of knowledge. The intent of every search is unknowable, but

the disparities described above seem to provide a good picture of the inherent racial bias within

the criminal justice system.

Use of Excessive Force

Popular belief would suggest that the majority of people who join the ranks of law

enforcement agencies want to make a positive impact in their communities. Although there are

exceptions, it would seem that a job involving potentially dangerous situations would not be

worth the risk if there was not some sort of tangible benefit. However, there have been instances

in the past of law enforcement agents not acting according to this long-held desire to positively

impact ones community. The truth of the matter is that no matter how good ones intentions

may be, a variety of social biases, whether conscious or unconscious, will almost certainly exist.

Many inner-city communities have been ravaged by criminal behavior. In 2016, data

from 61 different metropolitan police agencies showed an 11% increase in homicides from the

year prior.115 Because the majority of the population in these areas is comprised of minorities,

this has created a strong racial bias among the law enforcement officers policing these

115
Josh Sanburn and David Johnson, Violent Crime is on the Rise in U.S. Cities, Time.com, last modified January
30, 2017, http://time.com/4651122/homicides-increase-cities-2016/.
 25

communities. In a setting where crime is prevalent, officers are constantly reminded of the risks

that come with their occupation. Unfortunately, often time it may seem police officers might

begin to think that the entire population is crime infested based on the acts of a few people within

the community. The way police officers in these areas control the risks they and their community

face, can bring about another example of racial bias in the United States criminal justice system.

The racial bias may not be a conscious decision, but when it comes to escalating their use of

force, the potential victims can only hope that there is no form of social bias in the actions one

might experience at the hands of some police officers.

With the wide spread of multimedia, news pertaining to law enforcements use of

excessive force has quickly spread throughout the nation. In 2014 the American people

witnessed the Eric Garner and Michael Brown cases, both of which gained national attention.116

In a bystanders video, Eric Garner was seen in an officers chokehold and repeatedly mumbled

that he could not breathe.117 After losing consciousness, Garner died of a heart attack on the way

to the hospital.118 A few months later, Michael Brown was fatally shot by a police officer in

Ferguson, Missouri.119 In 2015, reports of the Walter Scott and Freddie Gray deaths became

headlines across all forms of media. 120 Walter Scott was shot five times in the back after fleeing

from a traffic stop.121 Freddie Gray died in custody due to a spinal injury reportedly caused by

116
John Wihbey and Leighton Walter Kille, Excessive or Reasonable Force by Police? Research on Law
Enforcement and Racial Conflict, Journalists Resource, last modified July 28, 2016,
https://journalistsresource.org/studies/government/criminal-justice/police-reasonable-force-brutality-race-research-
review-statistics.
117
Deborah Bloom and Jareen Imam, New York Man Dies after Chokehold by Police, CNN.com, last modified
December 8, 2014, http://www.cnn.com/2014/07/20/justice/ny-chokehold-death/.
118
Ibid.
119
John Wihbey and Leighton Walter Kille, Excessive or Reasonable Force by Police? Research on Law
Enforcement and Racial Conflict, Journalists Resource, last modified July 28, 2016,
https://journalistsresource.org/studies/government/criminal-justice/police-reasonable-force-brutality-race-research-
review-statistics.
120
Ibid.
121
Ibid.
 26

one or more police officers excessive use of force.122 These are only four cases of fatalities due

to possible use of excessive force by law enforcement. Whether these four black men were

engaged in criminal activity or not, their deaths seems to be beyond what society would accept as

a reasonable punishment.

Simply citing the four examples above seems to show that African Americans are far

more likely to become victims of use of excessive force by police officers when compared to

white Americans.123 Because of this, the problem of police officers use of excessive force is

largely represented as one that affects African American communities perhaps more so than

other ethnic populations in America. Unfortunately, labeling this as a black problem may have

made it so that the majority of Americans consider the issue it as one that might not be at the

forefront of social issues. However, in recent years, the use of multimedia and activists

associated with social movements such as Black Lives Matter, law enforcements use of

excessive force has become an increasing topic for public discourse.

The use of excessive force is not a new concept to the black community. Riots broke out

after a video of the blatant extreme beating of Rodney King by multiple police officers surfaced

in 1991.124 After the video was released, the Los Angeles police chief later was later quoted

saying, Anyone who has viewed the tape certainly would probably hasten to make a judgment

and I would just caution them in doing that. We dont train our officers to do this type of thing

and we dont tolerate it.125 It is this type of mindset that facilitates excessive use of force. If the

122
Ashley Fantz and Greg Botehlo. What We Know, Dont Know about Freddie Grays Death. CNN.com. Last
modified April 29, 2015. http://www.cnn.com/2015/04/22/us/baltimore-freddie-gray-what-we-know/.
123
Timothy Williams, Study Supports Suspicion That Police Are More Likely to Use Force on Blacks, The New
York Times, last modified July 7, 2016, https://www.nytimes.com/2016/07/08/us/study-supports-suspicion-that-
police-use-of-force-is-more-likely-for-blacks.html.
124
The L.A. Riots: 24 Years Later, Los Angeles Times, last modified April 28, 2016,
http://timelines.latimes.com/los-angeles-riots/.
125
Jaxon Van Derbeken, FBI Probing Police Beating, Daily News, March 6, 1991.
 27

management is not willing to admit fault, then change may never occur.

After Michael Brown was killed by police in Ferguson, Missouri, the city passed several

bills that promised change within their criminal justice system.126 The bills established a review

board that oversees its police force and also limit the amount of court fees issued for low income

residents.127 Examples such as Ferguson show that there can be positive change that come from

protests and civil unrest. However, it should not take a blatant beating or a police killing to

promote this change. Nationally, this problem still persists. From January 2010 through

September 2010, there were 3,814 reports of police misconduct.128 Out of all reports, 25% of

them dealt with the use of excessive force.129 Furthermore, 7% of all excessive force cases

resulted in fatalities.130 Understanding that this is a problem within various communities will

allow the opportunity for change.

The arbitrary assumption and criminalization of African Americans does not excuse law

enforcements use of excessive force. Many may argue that perhaps officers involved in the four

examples noted above may have acted out of fear for their lives. However, the reality is this; the

lives of these four men ended when police officers used deadly force warranted or not. The

small percentage of criminals within the black community could have easily created a racial bias

which may have negatively influenced the actions of the officers involved in these four deaths

and may have instead been avoided. In 2015, 41 police officers were killed in the line of duty. 131

126
Phil Helsel, Ferguson Approves Reforms, Crowd Demands Answers, NBC News, last modified September 9,
2014. http://www.nbcnews.com/storyline/michael-brown-shooting/ferguson-approves-reforms-crowd-demands-
answers-n199681.
127
Ibid.
128
David Packman, 2010 Q3 National Police Misconduct Statistical Report, The Cato Institutes National Police
Misconduct Reporting Project, last modified November 7, 2010, https://www.policemisconduct.net/2010-q3-
national-police-misconduct-statistical-report/.
129
Ibid.
130
Ibid.
131
Federal Bureau of Investigation. Law Enforcement Officers Feloniously Killed: 2006-2015.
 28

Out of the 37 killers, 17 were black, 16 were white, and 4 were other races.132 These statistics do

not show the severity of each encounter but they do show that the danger surrounding law

enforcement is caused by both black and white perpetrators. Consequently, the incorrect notion

that violence against police officers is primarily at the hands of African Americans, when in fact,

such violence does not necessarily seem to be specifically race related.

Law enforcement agents should be thought of as a reason for hope within the

communities riddled by crime, but the young African Americans within the inner-city seem to

have a right to be fearful. In 2014, a report concluded that young black males, from ages 15 to

19, are 21 times more likely to be fatally shot by police officers as their white counterparts.133 It

seems that a fear of law enforcement would be logical when such a disparity exists.

The majority of cases involving fatal shooting of crime suspects were instances when

officers reportedly feared for their lives. From 2005 to 2009, officers reported that in 62% of the

time they used lethal force, they felt their lives were threatened at the time of the shooting.134

From these statistics, it can be suggested that the majority of the fatalities were justified;

however, the remaining 38% of police involved shootings should be concerning. The

Washington Post reported that in the first five months of 2015, there were 285 fatal shootings by

police nationwide.135 In the same report, it was determined that roughly one in every six of those

killed was unarmed.136 It seems reasonable to suggest that a trained law enforcement agent could,

https://ucr.fbi.gov/leoka/2015/tables/table_1_leos_fk_region_geographic_division_and_state_2006-2015.xls
(accessed March 6, 2017).
132
Ibid.
133
Ryan Gabrielson, Ryann Grochowski and Eric Sagara, Deadly Force, in Black and White, Pro Publica, last
modified October 10, 2014. https://www.propublica.org/article/deadly-force-in-black-and-white.
134
Ibid.
135
Kimberly Kindy, Fatal Police Shootings in 2015 Approaching 400 Nationwide, The Washington Post, last
modified May 30, 2015, https://www.washingtonpost.com/national/fatal-police-shootings-in-2015-approaching-400-
nationwide/2015/05/30/d322256a-058e-11e5-a428-c984eb077d4e_story.html?utm_term=.66af876d180e
136
Ibid.
 29

or perhaps should, have employed non-fatal means to subdue the accused criminals.

Although excessive use of force only deals with a very small percentage of police

interactions, it is easily one of the most visible instances of possible racial biases as can be seen

by recent new stories. The use of excessive force by police officers should strike a common

chord in all Americans and should no longer be presented as a problem that only occurs within

African American communities. In order to reduce the number of fatal shootings and overall use

of excessive force, law enforcement should increase their social standings within the

communities most affected. It is difficult to gain a positive approval within inner-city

communities when virtually the only interactions many police officers have with the members of

the community is negative. The negativity many in the African American community have may

only fuel the affected communitys animosity toward law enforcement, which of course could

potentially lead to more violence. In addition to improving their standing in the black

community, law enforcement agents should receive additional training on the use of non-lethal

means of de-escalation of situations instead of escalating the situation to the level of have to

resort to the use deadly force. Most law enforcement officers have good intentions and aim to

make a positive impact within their communities. Many of them put their lives on the line daily.

However, impulsive actions based on an unconscious or conscious racial bias may lead to a fatal

outcome that does not fit the crime.

Lack of Representation

The U.S. Constitution, Amendment VI, guarantees defendants the right to a fair and

speedy trial.137 The accused is also guaranteed a public trial that is comprised of an impartial jury

137
U.S. Constitution Amend. VI.
 30

of ones peers.138 However, when attempting to sufficiently represent minority defendants, the

court system has been found to be increasingly unable to provide African American defendants a

jury of their peers. The criminal justice system includes a jury selection process that some feel

has become itself, a victim of racial biases. African Americans have been considered by some to

be the target of such inappropriate biases which can seemingly deny said defendants of their

constitutional right of an impartial jury and perhaps a jury comprised of peer-like members of the

jury during a trial.

The selection process for a jury is meant to be random in large part to limit the possibility

of prejudicial biases. With a random selection process it seems reasonable to suggest that the list

of potential jurors be representative of the defendants community. Contrary to this desired

outcome of the use of random jury selection, courts have witnessed a number of instances in

which this has not been the case. The metropolitan Chicago area is considered by most to be a

racially diverse community. However, one of Chicagos federal district courts has been noted, on

multiple instances, to have a 50-member jury pool that consisted of members who were made up

of only white people. 139 In a court system that is supposed to be fair and impartial, it is hard to

imagine that a jury which completely lacks common experiences regarding racial discrimination

or prejudices could be considered as one made up of the defendants peers. A jury that lacks

diversity can often time create unwanted biases whether or not they were meant to be created. As

a whole, the criminal justice system is meant to treat every person fairly. The lack of sufficient

representation for African Americans on a jury during a trial could easily be considered to be a

138
Ibid.
139
Ashish Joshi and Christina Kline, Lack of Jury Diversity: A National Problem with Individual Consequences,
American Bar Association, accessed March 18, 2017,
http://www.americanbar.org/groups/litigation/committees/diversity-inclusion/news_analysis/articles_2015/lack-of-
jury-diversity-national-problem-individual-consequences.html.
 31

method of procedural racial discrimination.

In addition to the court system lacking sufficient African American members of a jury

due to a limited number of potential jury members, prosecutors have been shown to eliminate

black jurors at a higher rate than white jurors when the accused is black.140 The process of

striking a potential juror is one of the rights given to both the prosecution and defense before the

trial starts in an effort to make the membership of the jury as fair as possible.141 Commonly

known as a peremptory challenge, either the prosecuting or the defense attorneys can request to

strike any juror based on virtually any reason, as long as they do not discriminate on the basis of

race, ethnicity, or sex.142

In the Supreme Court case, Batson v. Kentucky, the Court decided that allowing for

peremptory challenges was a reasonable attempt to balance the jury.143 In the same case, the

Court also proffered that the defendant had the right to present evidence challenging the validity

of possible jury members exclusion from serving.144 The interpretation of peremptory

challenges by the Supreme Court seemed to be a logical practice to ensure as fair a trial as

possible. However, there continues to be disparities in the number of black jurors excluded

compared to white jurors. This situation has led some to believe that prosecutors have been

abusing the process of using peremptory challenges in a discriminatory manner which is contrary

to what the Supreme Court intended.145

140
Adam Liptak, Exclusion of Blacks from Juries Raises Renewed Scrutiny, The New York Times, last modified
August 16, 2015, https://www.nytimes.com/2015/08/17/us/politics/exclusion-of-blacks-from-juries-raises-renewed-
scrutiny.html.
141
Legal Information Institute, s.v. Peremptory Challenge.
142
Batson v. Kentucky, 476 U.S. 79 (1986).
143
Ibid.
144
Ibid.
145
Gilad Edelman, Why is it so Easy for Prosecutors to Strike Black Jurors? The New Yorker, last modified June
5, 2015, http://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors.
 32

The United States judicial system boasts the concept of innocent until proven guilty.

Lacking a diverse jury has shown to have a negative effect on the outcome of trials thus

challenging the fairness of many trials. If racial biases exist within the jury, the trial may become

guilty until proven innocent before the defendant steps into the courtroom. In 2015, the Caddo

Parish District Attorneys Office in Louisiana conducted a study to test the disparities pertaining

to peremptory challenges.146 The study compared the jury exclusions from cases with a black

defendant and found that in over ten years of trials, no black defendant was ever acquitted when

there were fewer than three black jurors out of twelve jurors.147 Additionally, if there were at

least three black jurors, the acquittal rate rose to twelve percent and up to nineteen percent when

there were five or more.148 These statistics seem to show the level of influence jury diversity can

have on a trial. African Americans make up a much smaller percentage in the overall United

States population. Consequently, fewer potential black jurors could be expected in many cases.

However, instances such as what was encountered at the Chicago federal district court where a

potential misappropriation of peremptory challenges has led to many African Americans

standing trial with lack of sufficient representation of their peers.

In an effort to combat discrimination sometimes encountered with the use of peremptory

challenges, the court system has implemented a system called the Batson steps, named after

James Baston of the Batson v. Kentucky case.149 This systems offers the defense the opportunity

145
Hong Tran, Jury Diversity. Washington Association of Criminal Defense Lawyers. Last modified 2013.
https://www.wacdl.org/files/jury-diversity-article.
146
Ursula Noye. Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges by the Caddo
Parish District Attorneys Office. Reprieve Australia. Last Modified August 2015.
https://blackstrikes.com/resources/Blackstrikes_Caddo_Parish_August_2015.pdf.
147
Ibid.
148
Ibid.
149
Jennifer Robbennolt and Matthew Taksin, Jury Selection, Peremptory Challenges and Discrimination, Judicial
Notebook 40, no. 1 (2009): 18, accessed March 19, 2017, http://www.apa.org/monitor/2009/01/jn.aspx.
 33

to demonstrate how there was intentional discrimination used in the prosecutions peremptory

challenges. Despite the implementation of this system there have been multiple examples of

pretextual exclusions. In Miller-El v. Dretke, the Supreme Court determined that the prosecution

rejected specific jurors based on their race.150 In the majoritys opinion, Justice Stephen Breyer

showed his concern for the effectiveness of the Batson steps in that peremptory challenges

seemed increasingly anomalous in our judicial system.151

If the Batson steps are not effective in eliminating discrimination, peremptory challenges

that exclude black jurors may have an even larger effect on major cases such as Foster v.

Chatman. Foster v. Chatman was a case decided by the Supreme Court in 2016. Foster was an

18-year-old black man charged with murdering an elderly white woman.152 An all-white jury

convicted Foster and he was subsequently sentenced to death.153 The prosecutor used peremptory

challenges to strike down four black jurors, citing race-neutral reasons for all of peremptory

challenges.154 The defense provided evidence, including the prosecutors notes, which revealed

purposeful racial discrimination, but the trial court held that the additional reasons for the

peremptory challenges were sufficient.155 Eventually reaching the Supreme Court, the case was

decided when a 7-1 majority vote which concluded that there was clear evidence of purposeful

discrimination in the use of the peremptory challenges and that the state court erred in its

ruling.156 The evidence showed that the prosecution was never considering to accept black jurors.

In using the peremptory challenges, the prosecution listed dozens of reason for their exclusions

150
Miller-El v. Dretke, 545 U.S. ___ (2005).
151
Ibid.
152
Foster v. Chatman, 578 U.S. ___ (2016).
153
Ibid.
154
Ibid.
155
Ibid.
156
Ibid.
 34

including things such as failure to make good eye contact or looking bored.157 Miller-El and

Foster are only two examples of purposeful discrimination using peremptory challenges. It

should not take a Supreme Court decision for courts around the nation to understand the racial

disparities within the jury selections.

In 1987, a training video was released showing the Philadelphia Assistant District

Attorney, Jack McMahon, instructing prosecutors to use peremptory challenges in a purposefully

discriminatory fashion in order to gain an advantage.158 McMahon was quoted saying, young

black women are very bad, maybe because they are downtrodden on two respectstheyre

women and theyre blacks.159 Although it is difficult to completely understand the intent

McMahon had when providing instruction on the use of peremptory challenges, if he is willing to

make such a bold statement while training prosecutors, it seems that voicing such a potential

caustic comment might easily lead people to believe that such disparities hold some validity.

The Caddo Parish study concluded that in the total number of cases with black

defendants, 48% of qualified black jurors were struck down compared to only 14% of qualified

white jurors.160 For a jury that is meant to be impartial, it seems reasonable to suggest that the

peremptory challenges should also be impartial. A jury is intended to represent the entire

community and if the Batson steps are failing to prevent prosecutors from purposefully

discriminating, African Americans standing trial almost certainly fail to have sufficient

representation of their peers as members of the jury.

157
Nina Totenburg, Supreme Court Takes on Racial Discrimination in Jury Selection, NPR.org, last modified
November 2. 2015, http://www.npr.org/2015/11/02/452898470/supreme-court-takes-on-racial-discrimination-in-
jury-selection.
158
Ibid.
159
Ibid.
160
Gilad Edelman, Why is it so Easy for Prosecutors to Strike Black Jurors? The New Yorker, last modified June
5, 2015, http://www.newyorker.com/news/news-desk/why-is-it-so-easy-for-prosecutors-to-strike-black-jurors.
 35

It is difficult to quantify pretextual exclusions, but it is also difficult to ignore the

disparities presented by the Caddo Parish Study. Studies such as this should be conducted

nationwide in order to educate the American people of another procedure within the criminal

justice system that is tainted by racial biases. Many states have already taken action in an attempt

to supplement the size of jury pool members with more minorities.161 New York adopted the Jury

Pool Fair Representation Act in 2010.162 This Act added to the list of documents that jurors could

be selected from, such as voter registration records, drivers licenses, and even a parishioner list

from local churches.163 Other states should consider New Yorks effort to take appropriate steps

in order to ensure that the court system is fair and impartial for everyone, including African

Americans. Although discrimination at the individual jurors level may never be eliminated, the

courts must make an effort to erase the overall procedural disparities and provide sufficient

representation for all.

Mass Incarceration

Over the past several decades, the United States has seen a large increase in its prison

population. In 1972 there were 161 people incarcerated for every 100,000 adults, in the United

States.164 In 2012 the number had increased to 707 people for every 100,000 adults.165 A large

reason for this dramatic increase in prison population was the implementation of the effort to

reduce drug using in America; commonly referred to as the War on Drugs. Drug use in the

United States was prevalent throughout the 1970s. In order to combat this social issue, President

161
Hong Tran, Jury Diversity. Washington Association of Criminal Defense Lawyers. Last modified 2013.
https://www.wacdl.org/files/jury-diversity-article.
162
Ibid.
163
Ibid.
164
National Research Council, The Growth of Incarceration in the United States: Exploring Causes and
Consequences, Washington D.C.: The National Academies Press, 2014.
165
Ibid.
 36

Reagan declared the war shortly after he took office in 1982.166 This effort was meant to

change the publics perception of drug usage which had become widely accepted at that time.167

Although a war on drug use was an admirable goal to attempt to improve society, much like

other efforts by law enforcement agencies, the method of enforcing the so-called war has become

the face of racial bias.

In the United States prisons today, African Americans constitute nearly 1 million of the

total 2.3 million in total prison population.168 Although African Americans make up slightly

more than 13% of the population in the United States, they account for roughly half of the adults

in prison.169 Often time, this is due to law enforcement using increased scrutiny while enforcing

the laws within African American communities.170 The population of inner city communities

generally has lower income than the average American.171 That being the case, young African

Americans in these communities realize that dealing drugs is an easy way to earn money.

Therefore it seems reasonable to suggest that it is inevitable that drug related crimes are more

common in such communities. Because the low income communities are typically centrally

located within a city, law enforcement has found it easier to conduct the war on drugs by

disproportionately increasing their presence in areas that are predominately black. Due to the

disparity of police activity, the war on drugs seemed to lose its purpose of combatting the drug

166
Nunn, Kenneth. Race, Crime and the Pool of Surplus Criminality: Or Why the War on Drugs was a War on
Blacks. J. Gender Race and Just, no. 381 (2002): 381-387. Accessed March 8, 2017.
http://www.antoniocasella.eu/archila/nunn_2002.pdf.
167
Ibid.
168
National Association for the Advancement of Colored People, Criminal Justice Fact Sheet, accessed March 24,
2017, http://www.naacp.org/criminal-justice-fact-sheet/.
169
U.S. Census Bureau, Population by Race: 2010-2015, https://www.census.gov/quickfacts/table/RHI125215/00
(accessed March 29, 2017).
170
Alfred Brophy, Losing the [Understanding of the Importance of] Race, Evaluation the Significance of Race and
the Utility of Reparations, Texas Law Review 80, no. 4 (2002), accessed March 24, 2017,
https://www.questia.com/library/journal/1P3-118917271/losing-the-understanding-of-the-importance-of-race.
171
Lena Ferguson, In Americas War on Poverty, Inner Cities Remain the Front Line, ICIC.org, accessed March
24, 2017, http://icic.org/americas-war-poverty-inner-cities-remain-front-line-2/.
 37

use nationwide to where it seems to be almost entirely focused on areas with a high frequency of

drug related crimes. Although the original purpose of the war was to change the publics

perception of drugs, perhaps it has instead evolved into a greater social issue of inherent racial

bias, to include a disproportionate number of African Americans in prison in the United States.

In recent years, law enforcement has instituted new technology which aims to predict

where crimes will most likely happen.172 Because of the assumption that more drug related

crimes will occur within inner city communities, this technology may have become

unintentionally prejudicial in its use. Many police departments have adopted the use of this

technology and in the process they have grown more dependent on it.173 However, as some

police jurisdictions have become dependent on using the technology, some police officers may

have begun to generalize entire communities such as inner city communities as potential hotbeds

for illegal drug activity. Sergeant Colby Dolly, one of the leading police officials that

implemented predictive policing in St. Louis, issued a warning that police officers should not use

this technology to over-police.174 He suggested that it should only be used to predict serious

felonies and not lower level crimes such as those related to drugs. 175

Prisoners convicted of drug related offenses currently account for over 46% of the prison

population.176 Studies show that five times as many white people as black people admitted to

actively using drugs, yet black people are arrested for drug related crimes at ten times the rate of

172
Maurice Chammah, Policing the Future, The Marshall Project, last modified February 3, 2016,
https://www.themarshallproject.org/2016/02/03/policing-the-future?ref=hp-2-111#.IKnQfvnYC.
173
Maurice Chammah, Does Predictive Policing Lead to More Police in Black Communities? The Marshall
Project, last modified February 9, 2016, https://www.themarshallproject.org/2016/02/09/does-predictive-policing-
lead-to-more-police-in-black-communities-readers-react#.xZyqiAOzX.
174
Ibid.
175
Ibid.
176
Federal Bureau of Prisons, Inmate Race, accessed March 25, 2017.
https://www.bop.gov/about/statistics/statistics_inmate_race.jsp.
 38

white people.177 Law enforcement may think that more stringent laws and stronger enforcement

within inner city communities is the best way to fight the war on drugs. However, the majority of

drug users are still at large and this method of selective policing only seems to create a larger

disconnect between law enforcement and the black communities.178 While it may be obvious that

it is not logical to turn a blind eye to the drug related crimes, it seems that is just as obvious that

the different methods of law enforcement chooses to enforce those law may should be

reconsidered. In 1999, two percent of the entire black male population was incarcerated.179

Although statistics may demonstrate that drug related crimes are being prosecuted effectively, it

seems reasonable to suggest that inner city communities have been, and likely will continue to

be, negatively affected, inasmuch as a significant number of potential black male role models are

incarcerated in large part due to the disproportionate large number of black males in prison.

Considering drug related offenses account for 46% of the prison population, drug related

crimes are still a large problem within the United States and they should be addressed. However,

the racial biases that have been created as a result of the war on drugs and seems to have grown

increasingly evident. When a black male baby is born today, there is a one in three chance that he

will spend time in prison at some point in their lifetime.180 If racial population disparities in

prisons such as those noted above continue, one may assume that the only reason law

enforcement continues their current methods of policing is because they may believe that they

have been effective in reducing illegal drug abuse.

177
National Association for the Advancement of Colored People, Criminal Justice Fact Sheet, accessed March 24,
2017, http://www.naacp.org/criminal-justice-fact-sheet/.
178
Ibid.
179
Kenneth Nunn, Race, Crime and the Pool of Surplus Criminality: Or Why the War on Drugs was a War on
Blacks, J. Gender Race and Just, no. 381 (2002): 381-387, accessed March 8, 2017,
http://www.antoniocasella.eu/archila/nunn_2002.pdf.
180
Marc Mauer, Addressing Racial Disparities in Incarceration, The Prison Journal 93, no. 3 (2011): 88, accessed
March 25, 2017, http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.911.4609&rep=rep1&type=pdf.
 39

A study conducted by the U.S. Department of Health and Human Services concluded in

1999 that the total drug users in the United States totaled 14.8 million people.181 This is far less

than the 25 million illegal drug users when the United States high water mark of drug abusers in

1979, two years before the war on drugs was started by Ronald Reagan.182 Although this is a

large decrease in drug users, since the wars beginning, the United States has spent over one

trillion dollars in its efforts to combat this issue.183 Additionally, the United States also has the

largest prison population in the world.184 In fact, the United States accounts for 5% of the entire

worlds prison population.185 To put this in perspective, China has the second largest prison

population even though they have four times as many citizens as does the United States.186

With such harsh punishments and the largest prison population in the world, one would

think that the national drug usage would be far less than the rest of the world. Contrary, the

United States still remains as the number one illegal drug user in the world.187 Despite the huge

financial investment to fight drug abuse in the United States since the beginning of the war on

drugs, there is still no clear evidence that supports the wars success in combating this social

issue. Because the war on drugs is not necessarily fulfilling its original purpose, it seems to have

evolved into another form of social control used by law enforcement. Law enforcement

continues to disproportionately search for drug related crimes within low income, majority black

communities. This is the exact reason why Michelle Alexander calls mass incarceration the

181
Robb London, Is the War on Drugs Succeeding? Harvard Law Bulletin, last modified July 1, 2005,
https://today.law.harvard.edu/feature/war-drugs-succeeding/.
182
Ibid.
183
Ibid.
184
Ibid.
185
Adam Liptak, U.S. Prison Population Dwarfs That of Other Nations, The New York Times, last modified April
23, 2008, http://www.nytimes.com/2008/04/23/world/americas/23iht-23prison.12253738.html?pagewanted=all.
186
Ibid.
187
U.S. Leads the World in Illegal Drug Use. CBS News. Last modified July 1, 2008.
http://www.cbsnews.com/news/us-leads-the-world-in-illegal-drug-use/.
 40

rebirth of the caste system in her book, The New Jim Crow: Mass Incarceration in the Age of

Colorblindness.188 If law enforcement continues to fight the war on drugs with these

questionable methods, it does not only have a negative effect on the individual, but it has a

profound negative effect on the entire African American community. Many children in these

communities are raised without a father figure, thus sending them down a road that is

predisposed to a life of crime, which continues the cycle and creates a form of social control.

Clinton Drake is an African American man and also a Vietnam War veteran.189 In 1993

he was arrested in Montgomery, Alabama for having roughly $10 worth of marijuana in his

possession.190 This encounter with law enforcement was his second drug related offense.191

Within the standards predetermined by the war on drugs, Drake was facing ten to twenty years in

prison as a second-time offender.192 After receiving counsel from his attorney, Drake accepted a

plea agreement and spent five years in prison.193 After Drake had completed his sentence, he

struggled to find a job, he could not afford to pay for his court fees, and he could no longer vote

in different elections.194 A man who put his life on the line for his country, was no longer able to

live his life the same way he always had because of $10 worth of marijuana.195 Without a doubt,

Clinton Drake broke the law. In no way is it appropriate to assume that he should not have been

punished for his actions. However, this is not what the purpose of the war on drugs was meant to

be. Instances such as this example play a large role as to why the United States prison system has

188
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New
Press, 2011), 20-58.
189
Ibid, 159.
190
Ibid.
191
Ibid.
192
Ibid.
193
Ibid.
194
Ibid, 160.
195
Ibid.
 41

seen such a large increase in population. If law enforcement continues to disproportionately

arrest black people within inner city communities for drug related crimes, it only makes

employment, education, housing, and public benefits harder to come by, thus digging a deeper

hole that these communities are working to climb out of. The methods used to conduct the war

on drugs are another example of racial bias within the United States criminal justice system. The

number of black people imprisoned may continue to increase and their communities could only

suffer more. Although the original purpose of the war was sound and seemingly designed in

good faith, law enforcement should reevaluate how they plan to combat this social issue,

otherwise, more social issues such as promoting a form of social control may become more

evident.

Sentencing Disparities

Throughout the federal courts early history, sentencing was primarily at the discretion of

the individual judge who was presiding over the case.196 Because individual judges have varying

opinions about the severity of crimes and how the defendant should be punished, sentencing

disparities became evident across the entire nation.197 Congress recognized the controversy

surrounding not having a universal court system in a system that is supposed to be impartial. In

order to mitigate the disparities, Congress introduced the Sentencing Reform Act of 1984 as a

part of the Comprehensive Crime Control Act of 1984.198 The Act was responsible for creating

the U.S. Sentencing Commission which worked to collect information about crimes and

sentencing in order to recommend exact guidelines for federal judges nationwide.199 Overall this

196
Sentencing Reform Act, 18 U.S.C. 3553 (1984).
197
Ibid.
198
Ibid.
199
Ibid.
 42

was an effort to provide clarity to federal sentencing standards and as an attempt to make them

universal. One of the main guidelines provided by the U.S. Sentencing Commission was that

sentencing is to be neutral as to race, sex, national origin, creed, and socioeconomic status of

the offender.200 However, despite Congresss effort to improve federal sentencing procedures,

racial biases still exists in sentencing disparities.

To outline the racial disparities in federal sentencing, various entities have conducted

studies that outline the specific differences between the sentencing of African Americans

compared to other races for different crimes committed. The American Civil Liberties Union

released a study in 2009 which concluded that at that current time, black people across the nation

constituted 28.3% of all those sentenced to life in prison and 56.4% of those serving life without

the possibility of parole.201 Black people accounted for 65.4% of those serving life without

parole for nonviolent crimes as compared to the 17.8% of white people serving the same

sentence under the same parameters.202 Additionally, black juveniles accounted for 56.1% of

total juveniles who received a life sentence without parole.203

Figure 3

200
Ibid.
201
Inter-American Commission on Human Rights, Racial Disparities in Sentencing: Hearing on Reports of Racism
in the Justice System of the United States. American Civil Liberties Union, 153rd Session, 2014.
202
Ibid.
203
Ibid.
 43

Percentage of Races Sentenced to LWOP for Nonviolent Crimes 204

Figure 3 seems to clearly demonstrate the disparities of the percentage makeup by race of

those who were sentenced to life without parole for nonviolent crimes. Although the states listed

in Figure 3 may be extreme cases, it shows how the egregious disparities in these states have

ultimately affected the federal prison system as a whole.

The Sarasota Herald-Tribune investigated the sentencing disparities specifically

pertaining to the state of Florida. This study offers current statistics that are still prevalent

throughout the entire state. The findings concluded that on average, black defendants received

longer sentences in 60% of felony cases and 68% of serious, first-degree crimes.205 The study

presented statistics from various different counties that were some of the worst offenders of

racial disparities.

Figure 4

204
Ibid.
205
Unequal Sentences for Blacks and Whites. The New York Times. Last modified December 17, 2016.
https://www.nytimes.com/2016/12/17/opinion/sunday/unequal-sentences-for-blacks-and-whites.html?_r=0.
 44

Average Sentence Length in Days by Race in Each County206

Figure 4 shows the average prison sentence in days people in Florida received from the

court. The figure provide statistics from each county along with the statewide average of black

and white defendants.207 Looking at Figure 4, some may assume that this only demonstrates that

black people are involved in more serious crimes thus they have a longer average sentence.

However, this graph only represents the difference of the average sentence length for felony drug

possession charges under the same circumstances.208 There is only a small sample of counties in

Florida represented in the graph, but statewide, the average sentence is over 100 days longer if

you are a black defendant. These statistics seem to demonstrate yet another example of racial

bias within the criminal justice system, specifically in Florida.

Along with providing overall guidelines on federal sentencing, the Sentencing Reform

206
Ibid.
207
Ibid.
208
Ibid.
 45

Act of 1984 also introduced specific statutes for criminal behavior which was determined to be

egregious and in need of addressing.209 Many of the statutes were pertaining the war on drugs

that was beginning to become reality around the same time.210 The statutes provided a mandatory

minimum sentence for a particular offense based on the gravity of the crime.211 Contradicting the

original purpose of the guidelines set by Congress, the mandatory minimum sentences have also

become subject of racial biases.

One of the most prominent examples of racial disparities involving mandatory minimum

sentences is the difference between crack cocaine and powder cocaine. Offenses involving crack

cocaine at one point faced a possible length of sentence at a 100:1 ratio compared to offenses

involving powder cocaine.212 The two drugs are practically of the same composition, but the

main difference between the two is that crack cocaine is relatively cheaper to buy than powder

cocaine.213 Because of its low price, crack cocaine became increasingly popular in lower income

areas, many of them being communities of majority African Americans.214 The crack cocaine

mandatory minimum sentence was enacted in 1986 by the U.S. Sentencing Commission.215

Before the federal statute was enacted, African Americans on average had an 11% higher

average drug sentence than their white counterparts.216 Comparatively, four years after the

mandatory minimum had been enacted, the average drug sentence for African Americans had

209
Paula Kautt and Cassia Spohn, Crack-ing Down on Black Drug Offenders Testing for Interactions among
Offenders Race, Drug Type, and Sentencing Strategy in Federal Dug Sentences, Justice Quarterly 19, no. 1
(2002): 2, accessed March, 28, 2017,
http://heinonline.org/HOL/Page?handle=hein.journals/jquart19&div=9&g_sent=1&collection=journals#.
210
Ibid.
211
Ibid.
212
Fair Sentencing Act, 18 U.S.C. 3582 (2010).
213
Deborah Vagins and Jesselyn McCurdy, Cracks in the System: Twenty Years of the Unjust Federal Crack
Cocaine Law, American Civil Liberties Union, last modified October 2006, https://www.aclu.org/other/cracks-
system-20-years-unjust-federal-crack-cocaine-law.
214
Ibid.
215
Ibid.
216
Ibid.
 46

risen to 49% higher than white people.217 There were most likely other factors that caused such a

sharp increase, but it seems reasonable to suggest that the crack cocaine mandatory minimum

sentence had a large effect.

Part of the reason Congress and the U.S. Sentencing Commission enacted such a high

mandatory minimum sentence for crack cocaine offenses was that they believed it promoted

more harmful conduct compared to that of powder cocaine.218 In the interest of protecting

surrounding citizens, a higher sentence appears to be a reasonable explanation. However, in 2000

a study determined that 64.8% of crack cocaine offenses did not involve weapons with any

participant, 74.5% did not have any weapon on their individual person, and only 2.3% of cases

involved actively using a weapon.219 The statistics provided by this study showed that crack

cocaine is not related to gun related crimes as Congress and the U.S. Sentencing Commission

may have believed.

In 2007 the Supreme Court heard a case related to the federal sentencing policing. In

Kimbrough v. United States, Derrick Kimbrough pleaded guilty to distributing fifty or more

grams of crack cocaine.220 According to the sentencing guidelines enacted in 1986, the

prescribed sentence length totaled between 19 and 22.5 years.221 In an effort to reduce the

sentencing disparities, the district court judge reduced the Kimbroughs sentence to 15 years.222

Although this may still be considered as a steep sentence length, the judge demonstrated that one

could deviate from the federal sentencing guidelines. After the circuit court had ruled that the

217
Ibid.
218
Ibid.
219
Ibid.
220
Kimbrough v. United States, 552 U.S. 85 (2007).
221
Ibid.
222
Ibid.
 47

judge acted unreasonably by departing from the guidelines, the Supreme Court concluded in

2007 that the Sentencing Guidelines were advisory.223 The decision in favor of Kimbrough was

based on a precedent set by United States v. Booker, when the Court ruled that a judge may

increase a sentence beyond the standard range.224 This was the first case that the Court decided

the guidelines were no longer mandatory but should be used as guidelines to allow sentences to

be as close to universal as possible.225 After Kimbrough, judges could use their own discretion in

an effort to reduce the sentencing disparities. However, the differences between the advised

sentences for both crack and powder cocaine charges still remained disproportionate.

In an effort to reduce the sentencing disparities between offenses related to crack and

powder cocaine, Congress passed the Fair Sentencing Act in 2010.226 The Act reduced the

guidelines set in 1986 and effectively reduced the disparity from 100:1 to 18:1.227 Additionally,

the U.S. Sentencing Commission retroactively applied the new guidelines for those who were

already sentenced before the revision.228 This means that the people who were currently in prison

for crack cocaine offenses were able to have their sentences reviewed and potentially reduced.229

The Congressional Budget Office determined that due to changes made by the Fair Sentencing

Act, the prison population would decrease by roughly 1,550 person-years from 2011-2015.230 A

follow-up study confirmed that there was a reduction in the federal prison population and fewer

federal prosecutions for crack cocaine over that time period.231

223
Ibid.
224
United States v. Booker, 534 U.S. 220 (2005).
225
Ibid.
226
Fair Sentencing Act, 18 U.S.C. 3582 (2010).
227
Ibid.
228
Ibid.
229
Ibid.
230
Congressional Budget Office Cost Estimate, S.1789 (2010).
231
United States Sentencing Commission, Report to Congress: Impact of the Fair Sentencing Act of 2010 (2015).
 48

Although the Fair Sentencing Act is a step in the right direction, there are still significant

racial disparities in sentencing throughout all of the federal court system. Decreasing the prison

population and the overall person-years is an improvement but it does not make up for the fact

that black people still account for roughly half of the prison population.232 There is still much

more work to be done in the federal courts. There seems to be a need for a continued effort to

increase efforts such as the Fair Sentencing Act to reduce the overall disparities of sentencing

and in an effort to erase the racial biases found in this specific area of the criminal justice system.

One of the main guidelines implemented in the Sentencing Reform Act of 1984 was that

sentencing was to be neutral to race. As long as the racial disparities in sentencing continue to be

an issue, the federal courts may not be able to say with conviction that they are upholding this

standard.

Conclusion

One of the core values of the United States, one that is clearly established by the Equal

Protection Clause of the 14th Amendment of the United States Constitution, mandates the fair

and equal treatment for all of U.S. citizens.233 Yet, the very idea of equality simply does not

necessarily exist in certain ethnic communities; indeed, this lack of equality is particularly true if

you are a black man living in the United States. There are many occasions of individual African

American people who have suffered at the hand of a seemingly racist judicial system in many

parts of the United States. However, not only does racial discrimination affect individuals, but

also the communities, particularly black communities.

232
Leah Sakala, Breaking down Mass Incarceration in the 2010 Census: State-by-State Incarceration Rates by
Race/Ethnicity, Prison Policy Initiative, last modified May 28, 2014,
https://www.prisonpolicy.org/reports/rates.html.
233
Eugene Temchenko, Equal Protection, Legal Information Institute. Last modified June 2016.
https://www.law.cornell.edu/wex/equal_protection.
 49

The examples described above show the inherent racial biases that affect one of the

fundamental systems of American society the criminal justice system. The disparities

throughout the judiciary are evident across virtually every aspect of the criminal justice system.

Law enforcement officials have continually exploited weak laws in order to gain more power

within their communities. By disproportionately searching African Americans and often using

excessive force to detain them, law enforcement officials within the criminal justice system

ignore the American values of treating all citizens equally.

The Department of Justice released a statement on racial profiling in 2003 saying that it

sends the dehumanizing message to our citizens that are judged by the color of their skin.234

This signifies that the Department of Justice has recognized the flaws in their system yet racial

profiling and racial biases are still widely prevalent in the form disproportionate searches and use

of force by law enforcement officials. It seems reasonable to suggest that law enforcement agents

that continue to abuse their power will only foster a growing division between police officials

and many of the black residents of their communities.

Furthermore, it seems implausible that anyone can doubt that African Americans suffer

from a number of disadvantages throughout the judicial system. Despite the Fourth Amendment

guaranteeing all citizens the right to a fair and speedy trial, black defendants continue to be the

victims of a flawed federal court system plagued by procedural errors and systematic racial

biases. Federal courts have found it increasingly difficult to provide black defendants with the

appropriate representation, causing many black defendants to be at a disadvantage throughout

many of their hearings.

234
Department of Justice. Fact Sheet: Racial Profiling Last modified June 17, 2003.
https://www.justice.gov/archive/opa/pr/2003/June/racial_profiling_fact_sheet.pdf.
 50

From our nations beginning, the prison population has been disproportionately black and

still remains an area for concern seventeen years into the 21st century. The laws associated with

the war on drugs has seen the enacted unequal standards that result in more African Americans in

jails and prisons. Additionally, despite legislation that has been passed to reduce sentencing

disparities, black citizens continue to face longer jail or prison sentences compared to their white

counterparts.

The United States criminal justice system is flawed in many ways, but the overall unfair

treatment of minorities, especially African Americans, should no longer go without being

rectified. Although it will most likely never be a perfect system, there must be concerted efforts

made in order to reduce the systematic racial biases throughout the entirety of the American

criminal justice system.

Individual racial biases are difficult to overcome. However, the criminal justice system as

a whole cannot afford to let race affect decisions that could potentially alter the lives of not only

the individual but an entire community. One of the potential ways the criminal justice system

could confront this issue is by diversifying their workforce. Although there are only 28% white

residents within the city of Baltimore, their police force is made up of 48% white police

officers.235 Even more so, in Ferguson, Missouri there are only 29% white residents in the city,

while the police force is made up of 83% white police officers.236 There are many more

examples such as these that demonstrate African Americans lack of representation within the

police force. In President Obamas seven years in office, 11 out of the 22 District Court seats in

235
Jeremy Ashikenas and Haeyoun Park, The Race Gap in Americas Police Departments, The New York Times,
last modified April 8, 2015, https://www.nytimes.com/interactive/2014/09/03/us/the-race-gap-in-americas-police-
departments.html.
236
Ibid.
 51

Chicago were open and not one nominee was black.237 In 2011, 75% of the prosecutors in the

New York County district attorneys office were white and only 10% were black.238 These

statistics seem to show that African Americans are severely underrepresented throughout each

portion of the criminal justice system. The lack of representation throughout the criminal justice

system leads to a lack of shared life experiences with those who will ultimately make potentially

life-changing decisions. Diversifying the workforce is only one of the potential ways of

potentially mitigating this problem.

Much of what has been discussed leaves the impression that there is no hope for change.

The dark truth behind this topic is that for some of those affected by the racial biases within the

criminal justice system have no hope. The lack of equal opportunities leads to a life that is

predisposed to criminal activity and thus creates either a conscious or unconscious racial bias.

The systematic racial biases within the criminal justice system can be traced back to the racial

biases that are still prevalent within society as a whole. Black communities lack equal economic,

educational, and employment opportunities that others may take for granted. An understanding

of these inequalities demonstrates why many black Americans lack hope of escaping the grip of

social injustices.

White people currently have almost 10 times the median household wealth as blacks.239

More than one in four black Americans were below the poverty level in 2014.240 For many, the

opportunity to escape the poverty level is no easy task. Approximately 51% of black people born

237
Steven Strahler, How Many Black Men are Federal Judges in Obamas Hometown? Zero, Chicago Business,
last modified January 2, 2016, http://www.chicagobusiness.com/article/20160102/ISSUE01/301029994/how-many-
black-men-are-federal-judges-in-obamas-hometown-zero.
238
Yolanda Young, Why the US Needs Black Lawyers Even More than it Needs Black Police, The Guardian, last
modified May 11, 2015, https://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.
239
Tami Luhby, The Black-White Economic Divide in 5 Charts, CNN.com, last modified November 25, 2015.
http://money.cnn.com/2015/11/24/news/economy/blacks-whites-inequality/.
240
Ibid.
 52

into the lowest fifth of national earnings remain in the same earnings distribution by the age of

40.241 White people tend to fare better, as less than a quarter of those born in the bottom quintile

remain by age 40.242

Similarly, black communities face a gap in educational opportunities. The 2000 census

revealed that only 72.3% of black people age 25 and older had received a high school diploma.243

Whereas 85.5% of white people age 25 and older were of the same education level.244

Additionally, only 14% of black people had received a bachelors degree or more, compared to

27% of white people.245 All students, despite their race, deserve a quality public education.

However, the gap of educational opportunity still exists today.

Before the recession began in 2007, white unemployment rate stood at a mere 4%, while

black unemployment rate was more than double at 8.4%.246 During the time immediately after

the recession, the gap had grown even larger. In 2011 the black unemployment rate had risen to

16.1% whereas the white unemployment rate was at 7.9%.247 By 2016, the rates decreased to

similar levels before the recession. Black unemployment rate once again was at 8.4% while the

white unemployment rate was at 4.3%.248 Many times, the lack of employment opportunities can

be traced back to the lack of educational opportunities. In fact, in 2011, 26% of black people

241
Edward Rodrigue and Richard Reeves, Five Bleak Facts on Black Opportunity, Brookings. Last modified
January 15, 2015. https://www.brookings.edu/blog/social-mobility-memos/2015/01/15/five-bleak-facts-on-black-
opportunity/.
242
Ibid.
243
U.S. Census Bureau. Educational Attainment: 2000. https://www.census.gov/prod/2003pubs/c2kbr-24.pdf.
244
Ibid.
245
Ibid.
246
Christian Weller, The Black and White Labor Gap in America, Center for American Progress, last modified
July 25, 2011. https://www.americanprogress.org/issues/economy/reports/2011/07/25/9992/the-black-and-white-
labor-gap-in-america/.
247
Ibid.
248
Bureau of Labor Statistics, Unemployment Rate and Unemployment-Population Ratio Vary by Race and
Ethnicity, https://www.bls.gov/opub/ted/2017/unemployment-rate-and-employment-population-ratio-vary-by-race-
and-ethnicity.htm.
 53

without high school diplomas were unemployed, compared to 12% of white people of the same

category.249

The lack of opportunities for black people cannot be narrowed down to simply three

categories. Inequalities exist throughout the entire spectrum of American society. Black

communities witness the social effects of these inequalities every day. Economic stress, lack of

education, and unemployment are three of the leading similarities of those involved in criminal

behavior. From 2008 to 2012, households that were considered under the federal poverty level

had more than double the risk of violent crime victimization compared to those who were above

the poverty level.250 In 2003, 68% of state prison inmates had not received a high school diploma

upon entering the correctional facility.251 Finally, a 2015 study showed that a one percent

increase in unemployment increased the violent crime rate by 14.3 per 100,000 citizens.252

Inequalities and racial biases within the criminal justice system have been demonstrated

throughout the essay. However, the reason many black communities continue to lack hope is due

to their lack of opportunity for success rather than an increased likelihood of being predisposed

to criminal activity. Due to the higher frequency of crime within these communities, the racial

biases within the criminal justice system become well established. The predispositions lead to an

almost never ending cycle that allows very few to escape the grips of social inequalities.

249
Christian Weller, The Black and White Labor Gap in America, Center for American Progress, last modified
July 25, 2011. https://www.americanprogress.org/issues/economy/reports/2011/07/25/9992/the-black-and-white-
labor-gap-in-america/.
250
Bureau of Justice Statistics, Household Poverty and Nonfatal Violent Victimization,
https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5137.
251
Bureau of Justice Statistics. Education and Correctional Populations.
https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814.
252
Sandra Ajimotokin et al, The Effects of Unemployment on Crime Rates in the U.S., Georgia Tech Library, last
modified April 14, 2015,
https://smartech.gatech.edu/bitstream/handle/1853/53294/theeffectsofunemploymentoncimerates.pdf.
 54

Politicians should continue to work hand-in-hand with community leaders to introduce

policy changes, legislation, and social programs in an effort to allow more opportunities in the

hope of loosening the grip of different inequalities found in black communities. Initiatives such

as the Harlem Childrens Zone strive to address the gap of quality education within the city of

Harlem, New York.253 The program offers after-school programs and pre-college mentoring for

many children living in poverty.254 The program is a small example of an attempt to end poverty

by focusing on the educational and social development of the next generation of children who

now live in poverty. By doing so, this initiative cultivates a culture of success and hope rather

than a culture of crime and continued poverty. Small-scale programs such as the Harlem

Childrens Zone have continued to provide successful results and hope for black communities to

experience more economic opportunities.

The Project Ready initiative in New Orleans provides 200 underserved youth to be

exposed to the STEM community.255 From an early age, the students are mentored in STEM-

related coursework and toward potential careers.256 Throughout the programs history, an

impressive 100% of its graduating high school seniors have been accepted to four-year colleges

and universities.257 Out of these students, more than 75% have earned scholarships to attend

college.258 Expansion of programs similar to Project Ready, will increase the opportunity for

quality education for underprivileged communities.

The U.S. Department of Veterans Affairs has led the effort in building a diverse

253
Senator Klobuchar, Increasing Economic Opportunity in the African American Community,
Joint Economic Committee, last modified July 19, 2014, https://www.jec.senate.gov/public/_cache/files/8b2b24c3-
628f-4c3c-871a-5e25154c4955/increasing-economic-opportunity-in-the-african-american-community.pdf.
254
Ibid.
255
Ibid.
256
Ibid.
257
Ibid.
258
Ibid.
 55

workforce. Their African American Employment Program has served as an avenue to provide an

equal opportunity for employment regardless of race, color, religion, gender, national origin,

disability, or age.259 The program has assisted in the development and advancement of African

American employees while at the same time recruiting for potential employees in minority

communities.260 It has identified areas with limited African American participation in an attempt

to meet the present and future needs of the diverse community of veterans.261 Diversity should be

an important aspect for all employers. The U.S. population is a melting pot of people from all

backgrounds which shows the importance of initiatives such as the African American

Employment Program. Programs such as this allow the unemployment rate within black

communities to decrease. Consequently, participation in criminal activity may also be decreased.

The U.S. criminal justice system should be a beacon of hope and equality, but rather it

maintains disparities such as those discussed. However, the continued policy changes,

legislation, and social programs mentioned above could restore a sense of hope within black

communities. Through these efforts, many of those predisposed to a life of criminal activity

could instead escape the grip of social inequalities. The success of these programs dictate the

future of many lives and efforts should be made to expand their reach. In an effort to reduce the

racial biases within American society, the opportunity for success must be available for everyone

regardless of race.

Most importantly, educating American citizens is a possible way in combatting racial

biases. Although this essay may not cover every social inequality or procedure included in the

259
U.S. Department of Veterans Affairs. African American Employment Program.
https://www.diversity.va.gov/programs/aa.aspx.
260
Ibid.
261
Ibid.
 56

criminal justice system, the examples included should provide a solid foundation on which social

justice can be built. If the racial biases and injustices continue to go unhindered, the examples

will no longer prove to be something Americans can learn from but rather they will continue to

act as visible illustrations of the systematic racial bias that plagues the criminal justice system

and society as a whole. As noted above, Ralph Waldo Emerson once said, Knowledge comes by

eyes always open and working hands; and there is no knowledge that is not power.262 If this is

truly the case, then it seems as if the American people must open their eyes to the systematic

racial biases and inequalities in order to use the power of this knowledge to put an end to the

flaws within the American criminal justice system.

262
Ralph W. Emerson, Old Age (The Atlantic Monthly, 1862).
 57

Bibliography

Ajimotokin, Sandra, Alexandra Haskins, and Zach Wade. The Effects of Unemployment on
Crime Rates in the U.S. Georgia Tech Library. Last modified April 14, 2015.
https://smartech.gatech.edu/bitstream/handle/1853/53294/theeffectsofunemploymentonci
merates.pdf.

Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. New
York: The New Press, 2011.

Armstrong, Ken. How the Supreme Court Made It Legal for Cops to Pull You Over for Just
About Anything. The Marshall Project. Last modified August 3, 2015.
https://www.themarshallproject.org/2015/08/03/how-the-supreme-court-made-it-legal-
for-cops-to-pull-you-over-for-just-about-anything#.JVX8xqjTU.

Ashikenas, Jeremy and Haeyoun Park. The Race Gap in Americas Police Departments. The
New York Times. Last modified April 8, 2015.
https://www.nytimes.com/interactive/2014/09/03/us/the-race-gap-in-americas-police-
departments.html.

Batson v. Kentucky. 476 U.S. 79 (1986).

Bloom, Deborah and Jareen Imam. New York Man Dies after Chokehold by Police. CNN.com.
Last modified December 8, 2014. http://www.cnn.com/2014/07/20/justice/ny-chokehold-
death/.

Brophy, Alfred. Losing the [Understanding of the Importance of] Race, Evaluation the
Significance of Race and the Utility of Reparations. Texas Law Review 80, no. 4 (2002).
Accessed March 24, 2017. https://www.questia.com/library/journal/1P3-
118917271/losing-the-understanding-of-the-importance-of-race.

Bureau of Justice Statistics. Education and Correctional Populations.

https://www.bjs.gov/index.cfm?ty=pbdetail&iid=814 (accessed May 6, 2017).

Bureau of Justice Statistics. Household Poverty and Nonfatal Violent Victimization.

 58

https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5137 (accessed May 6, 2017).

Bureau of Justice Statistics. Traffic Stops. https://www.bjs.gov/index.cfm?ty=tp&tid=702

(accessed April 25, 2017).

Bureau of Labor Statistics. Unemployment Rate and Unemployment-Population Ratio Vary by

Race and Ethnicity. https://www.bls.gov/opub/ted/2017/unemployment-rate-and-
employment-population-ratio-vary-by-race-and-ethnicity.htm (accessed May 6, 2017).

Chammah, Maurice. Does Predictive Policing Lead to More Police in Black Communities?
The Marshall Project. Last modified February 9, 2016.
https://www.themarshallproject.org/2016/02/09/does-predictive-policing-lead-to-more-
police-in-black-communities-readers-react#.xZyqiAOzX.

---. Policing the Future. The Marshall Project. Last modified February 3, 2016.
https://www.themarshallproject.org/2016/02/03/policing-the-future?ref=hp-2-
111#.IKnQfvnYC.

Cole, David. No Equal Justice. 1 Conn. Pub. Int. L.J. 19-33 (2001): 24-28.

Department of Justice. Fact Sheet: Racial Profiling Last modified June 17,
2003.https://www.justice.gov/archive/opa/pr/2003/June/racial_profiling_fact_sheet.pdf.

Edelman, Gilad. Why is it so Easy for Prosecutors to Strike Black Jurors? The New Yorker.
Last modified June 5, 2015. http://www.newyorker.com/news/news-desk/why-is-it-so-
easy-for-prosecutors-to-strike-black-jurors.

Emerson, Ralph W. Old Age. The Atlantic Monthly, 1862.

Fantz, Ashley and Greg Botehlo. What We Know, Dont Know about Freddie Grays Death.
CNN.com. Last modified April 29, 2015. http://www.cnn.com/2015/04/22/us/baltimore-
freddie-gray-what-we-know/.
 59

Federal Bureau of Investigation. Law Enforcement Officers Feloniously Killed: 2006-2015.

https://ucr.fbi.gov/leoka/2015/tables/table_1_leos_fk_region_geographic_division_and_st
ate_2006-2015.xls (accessed March 6, 2017).

Federal Bureau of Prisons. Inmate Race. Accessed March 25, 2017.

https://www.bop.gov/about/statistics/statistics_inmate_race.jsp.

Ferguson, Lena. In Americas War on Poverty, Inner Cities Remain the Front Line. ICIC.org.
Accessed March 24, 2017. http://icic.org/americas-war-poverty-inner-cities-remain-front-
line-2/.

Free Jr., Marvin and Mitch Ruesink. Race and Justice: Wrongful Convictions of African
American Men. Boulder: Lynne Rienner Publishers, Inc., 2012.

Foster v. Chatman. 578 U.S. ___ (2016).

Gabrielson, Ryan, Ryann Grochowski and Eric Sagara. Deadly Force, in Black and White. Pro
Publica. Last modified October 10, 2014. https://www.propublica.org/article/deadly-
force-in-black-and-white.

Goldstein, Joseph. Judge Rejects New Yorks Stop-and-Frisk Policy. The New York Times.
Last modified August 12, 2013. http://www.nytimes.com/2013/08/13/nyregion/stop-and-
frisk-practice-violated-rights-judge-rules.html.

Heien v. North Carolina. 574 U.S. ___ (2014).

Helsel, Phil. Ferguson Approves Reforms, Crowd Demands Answers. NBC News. Last
modified September 9, 2014. http://www.nbcnews.com/storyline/michael-brown-
shooting/ferguson-approves-reforms-crowd-demands-answers-n199681.

Inter-American Commission on Human Rights. Racial Disparities in Sentencing: Hearing on

Reports of Racism in the Justice System of the United States. American Civil Liberties
Union, 153rd Session, October 27, 2014.
 60

Joshi, Ashish and Christina Kline. Lack of Jury Diversity: A National Problem with Individual
Consequences. American Bar Association. Accessed March 18, 2017.
http://www.americanbar.org/groups/litigation/committees/diversity-
inclusion/news_analysis/articles_2015/lack-of-jury-diversity-national-problem-
individual-consequences.html.

Kautt, Paula and Cassia Spohn. Crack-ing Down on Black Drug Offenders Testing for
Interactions among Offenders Race, Drug Type, and Sentencing Strategy in Federal Dug
Sentences. Justice Quarterly 19, no. 1 (2002): 2. Accessed March, 28, 2017.
http://heinonline.org/HOL/Page?handle=hein.journals/jquart19&div=9&g_sent=1&collec
tion=journals#.

Kimbrough v. United States. 552 U.S. 85 (2007).

Kindy, Kimberly. Fatal Police Shootings in 2015 Approaching 400 Nationwide. The
Washington Post. Last modified May 30, 2015.
https://www.washingtonpost.com/national/fatal-police-shootings-in-2015-approaching-
400-nationwide/2015/05/30/d322256a-058e-11e5-a428-
c984eb077d4e_story.html?utm_term=.66af876d180e.

LaFraniere, Sharon and Andrew Lehren. The Disproportionate Risks of Driving While Black.
The New York Times. Last modified October 24, 2015.
https://www.nytimes.com/2015/10/25/us/racial-disparity-traffic-stops-driving-
black.html?_r=0.

Liptak, Adam. Exclusion of Blacks from Juries Raises Renewed Scrutiny. The New York
Times. Last modified August 16, 2015.
https://www.nytimes.com/2015/08/17/us/politics/exclusion-of-blacks-from-juries-raises-
renewed-scrutiny.html.

---. U.S. Prison Population Dwarfs That of Other Nations. The New York Times. Last modified
April 23, 2008. http://www.nytimes.com/2008/04/23/world/americas/23iht-
23prison.12253738.html?pagewanted=all.

London, Robb. Is the War on Drugs Succeeding? Harvard Law Bulletin. Last modified July 1,
2005. https://today.law.harvard.edu/feature/war-drugs-succeeding/.
 61

Luhby, Tami. The Black-White Economic Divide in 5 Charts. CNN.com. Last modified
November 25, 2015. http://money.cnn.com/2015/11/24/news/economy/blacks-whites-
inequality/.

Mauer, Marc. Addressing Racial Disparities in Incarceration. The Prison Journal 93, no. 3
(2011): 88. Accessed March 25, 2017.
http://citeseerx.ist.psu.edu/viewdoc/download?doi=10.1.1.911.4609&rep=rep1&type=pdf
.

Miller-El v. Dretke. 545 U.S. ___ (2005).

More Whites Share View Held by Minorities on Racism. Last modified January 28, 2016.
http://www.cbsnews.com/news/racial-polling-analysis-white-americans-racism-us/.

National Association for the Advancement of Colored People. Criminal Justice Fact Sheet.
Accessed March 24, 2017. http://www.naacp.org/criminal-justice-fact-sheet/.

National Research Council. The Growth of Incarceration in the United States: Eploring Causes
and Consequences. Washington D.C.: The National Academies Press, 2014.

Newport, Frank. Black and White Attitudes toward Police. Gallup. Last modified August 20,
2014. http://www.gallup.com/poll/175088/gallup-review-black-white-attitudes-toward-
police.aspx.

New York Civil Liberties Union. Stop-and-Frisk Data. Accessed April 18, 2017.
https://www.nyclu.org/en/stop-and-frisk-data.

Noye, Ursula. Blackstrikes: A Study of the Racially Disparate Use of Peremptory Challenges
by the Caddo Parish District Attorneys Office. Reprieve Australia. Last Modified
August 2015.
https://blackstrikes.com/resources/Blackstrikes_Caddo_Parish_August_2015.pdf.
 62

Nunn, Kenneth. Race, Crime and the Pool of Surplus Criminality: Or Why the War on Drugs
was a War on Blacks. J. Gender Race and Just, no. 381 (2002): 381-387. Accessed
March 8, 2017. http://www.antoniocasella.eu/archila/nunn_2002.pdf.

Packman, David. 2010 Q3 National Police Misconduct Statistical Report. The Cato Institutes
National Police Misconduct Reporting Project. Last modified November 7, 2010.
https://www.policemisconduct.net/2010-q3-national-police-misconduct-statistical-report/.

Robbennolt, Jennifer and Matthew Taksin. Jury Selection, Peremptory Challenges and
Discrimination. Judicial Notebook 40, no. 1 (2009): 18. Accessed March 6, 2017.
http://www.apa.org/monitor/2009/01/jn.aspx.

Rodrigue, Edward and Richard Reeves. Five Bleak Facts on Black Opportunity. Brookings.
Last modified January 15, 2015. https://www.brookings.edu/blog/social-mobility-
memos/2015/01/15/five-bleak-facts-on-black-opportunity/.

Saleem, Omar. The Age of Unreason: The Impact of Reasonableness, Increased Police Force,
and Colorblindness on Terry Stop and Frisk. Oklahoma Law Review 50, no. 4 (1997):
456. Accessed April 18, 2017.
http://heinonline.org/HOL/Page?handle=hein.journals/oklrv50&div=28&g_sent=1&colle
ction=journals.

Sakala, Leah. Breaking down Mass Incarceration in the 2010 Census: State-by-State
Incarceration Rates by Race/Ethnicity. Prison Policy Initiative. Last modified May 28,
2014. https://www.prisonpolicy.org/reports/rates.html.

Sanburn, Josh and David Johnson. Violent Crime is on the Rise in U.S. Cities. Time.com. Last
modified January 30, 2017. http://time.com/4651122/homicides-increase-cities-2016/.

Senator Klobuchar. Increasing Economic Opportunity in the African American Community.

Joint Economic Committee. Last modified July 19, 2014.
https://www.jec.senate.gov/public/_cache/files/8b2b24c3-628f-4c3c-871a-
5e25154c4955/increasing-economic-opportunity-in-the-african-american-community.pdf.

Sibron v. New York. 392 U.S. 40 (1968).

 63

State of Wisconsin v. Richard E. Houghton. Wis. App. 354 Wis. 2d 623, 848 N.W.2d 904 (2015).

Strahler, Steven. How Many Black Men are Federal Judges in Obamas Hometown? Zero.
Chicago Business. Last modified January 2, 2016.
http://www.chicagobusiness.com/article/20160102/ISSUE01/301029994/how-many-
black-men-are-federal-judges-in-obamas-hometown-zero.

Temchenko, Eugene. Equal Protection. Legal Information Institute. Last modified June 2016.
https://www.law.cornell.edu/wex/equal_protection.

Terry v. Ohio. 392 U.S. 1 (1968).

The L.A. Riots: 24 Years Later. Los Angeles Times. Last modified April 28, 2016.
http://timelines.latimes.com/los-angeles-riots/.

Totenburg, Nina. Supreme Court Takes on Racial Discrimination in Jury Selection. NPR.org.
Last modified November 2. 2015. http://www.npr.org/2015/11/02/452898470/supreme-
court-takes-on-racial-discrimination-in-jury-selection.

Tran, Hong. Jury Diversity. Washington Association of Criminal Defense Lawyers. Last
modified May 2013. https://www.wacdl.org/files/jury-diversity-article.

Unequal Sentences for Blacks and Whites. The New York Times. Last modified December 17,
2016. https://www.nytimes.com/2016/12/17/opinion/sunday/unequal-sentences-for-
blacks-and-whites.html?_r=0.

United States v. Booker. 534 U.S. 220 (2005).

U.S. Census Bureau. Educational Attainment: 2000.

https://www.census.gov/prod/2003pubs/c2kbr-24.pdf (accessed May 5, 2017).

U.S. Census Bureau. Population by Race: 2010-2015.

https://www.census.gov/quickfacts/table/RHI125215/00 (accessed March 5, 2017).
 64

U.S. Department of Veterans Affairs. African American Employment Program.

https://www.diversity.va.gov/programs/aa.aspx (accessed May 6, 2017).

U.S. Leads the World in Illegal Drug Use. CBS News. Last modified July 1, 2008.
http://www.cbsnews.com/news/us-leads-the-world-in-illegal-drug-use/.

Vagins, Deborah and Jesselyn McCurdy. Cracks in the System: Twenty Years of the Unjust
Federal Crack Cocaine Law. American Civil Liberties Union. Last modified October
2006. https://www.aclu.org/other/cracks-system-20-years-unjust-federal-crack-cocaine-
law.

Van Derbeken, Jaxon. FBI Probing Police Beating. Daily News, March 6, 1991.

Ward, Robert. Consenting to a Search and Seizure in Poor and Minority Neighborhoods: No
Place for a Reasonable Person. 36 Howard L.J. 239 (1993): 244-252.

Warner, Sam. The Uniform Arrest Act. Virginia Law Review 28, no. 3 (1942): 315-347.
Accessed March 4, 2017.
https://www.jstor.org/stable/1068221?seq=1#page_scan_tab_contents

Weller, Christian. The Black and White Labor Gap in America. Center for American Progress.
Last modified July 25, 2011.
https://www.americanprogress.org/issues/economy/reports/2011/07/25/9992/the-black-
and-white-labor-gap-in-america/.

Wihbey, John and Leighton Walter Kille. Excessive or Reasonable Force by Police? Research
on Law Enforcement and Racial Conflict. Journalists Resource. Last modified July 28,
2016. https://journalistsresource.org/studies/government/criminal-justice/police-
reasonable-force-brutality-race-research-review-statistics.

Williams, Timothy. Study Supports Suspicion That Police Are More Likely to Use Force on
Blacks. The New York Times. Last modified July 7, 2016.
https://www.nytimes.com/2016/07/08/us/study-supports-suspicion-that-police-use-of-
force-is-more-likely-for-blacks.html.
 65

What Does the Fourth Amendment Mean? United States Courts. Accessed March 3, 2017.
http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-
outreach/activity-resources/what-does-0.

Woods, Erin. Driving While Black: Racial Profiling and Traffic Stops. Ohio State University
Moritz College of Law. Last modified May 2015.
http://moritzlaw.osu.edu/students/groups/osjcl/amici-blog/driving-while-black-racial-
profiling-and-traffic-stops/.

Young, Yolanda. Why the US Needs Black Lawyers Even More than it Needs Black Police.
The Guardian. Last modified May 11, 2015.
https://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.