Shut Up and Dribble

 Covert Mechanisms in Law, Legal, and Criminal Justice institutions

Enshrined into the fabric of our national identity are the central values that gauge how perfect our union is. In our founding documents, we find these words: "We hold these truths to be self-evident that all "humans" are endowed by their Creator with certain inalienable rights."   As depicted in the figure below, our Nation is becoming increasingly diverse. By the year 2030, it is projected that persons of color will constitute the majority of who we are as a people. Therefore, we must grapple with the obvert and the covert mechanisms by which these "inalienable rights" continue to be undermined by our laws and legal and criminal justice institutions. 

Source: Treasury calculations using U.S. Census Bureau data from IPUMS. Steven Ruggles, Sarah Flood, Sophia Foster, Ronald Goeken, Jose Pacas, Megan Schouweiler, and Matthew Sobek. IPUMS USA: Version 11.0 [dataset]. Minneapolis, MN: IPUMS, 2021. https://doi.org/10.18128/D010.V11.0

Contrary to our noble claims, the United States was founded on the legal, constitutional, and practical applications of genocide against the Indigenous natives, the enslavement of Africans, and the subjugation of multiple ethnic, gendered, and sexualized minorities. The extent to which these legal practices are enshrined within our society even today is seen in such things as differential sentencing, racial profiling, gerrymandering, and the systematic policies and procedures that continually marginalize, over-criminalize, and incarcerate Hispanic, Indigenous, Black, and poor Americans. Consider the disproportionately. Consider the 2021 study by the Sentencing project that documents that Black Americans are almost five times and Latinx people 1.3 times more likely to be incarcerated than Whites in state prisons. (Nellis 2021) Black and Latino's offenders are also more likely, in state and federal courts, to receive longer sentences than their White counterparts in some jurisdictions. This is more likely to impact males, even when the offenses are the same and their criminal histories are comparable to White offenders.    These disparities increase with both severity and are even higher for juvenile offenders. (ACLU 2014)

Covert mechanisms are at work throughout the legal and criminal system. For example, Police are more likely to stop, search, and detain Black and Latino men disproportionately than White males. (Kahn and Martin 2016) Research also demonstrates that White police officers are 50 to 65 percent more likely than black officers to use force. This use of force significantly increases as the percentage of Black or Hispanic residents increases (Hoekstra and Sloan 2020). The higher use of force has been linked to biased stereotypes held by White. (Pleskac, Cesario, and Johnson 2017) 

Another covert mechanism within the legal system is the racial bias associated with jury selection. A central feature of this bias is related to the lack of diversity among prosecutorial offices and the judiciary. While 40 % of U.S. citizens are persons of color, 95% of the elected prosecutors are White. Of these, only 1.7% were Latinos (17% of the population. A total of 14 states had no elected prosecutors who were not White. (Reflective Democracy Campaign 2014) The judiciary similarly lacks any significant diversity. Across all states, Black, Latino, Asian American, Native American, or multiracial only constitute 18 percent of the justices in state high courts. (Powers and Bannon, 2022)

Racial disparities in death penalty verdicts disproportionately impact persons of color. Since 1976, 43 % of the total executions and 55% of those currently awaiting execution are persons of color. Although approximately one-half of all murder victims are White, 80 percent of all Capital cases involve White victims. (ACLU 2022) These statistics hide the reality that black people are seven times more likely than their White peers to be falsely convicted of serious crimes. This means that while blacks make up less than 14 percent of the population, they account for 53 percent of wrongful convictions. These racial disparities occur in all major crime categories apart from white-collar crime. Even worse are the 2,975 additionally wrongful convictions where evidence point to the 'deliberate framing and conviction" utilizing fabricated drug crimes where most of the cases involved Black suspects. (Gross et al., 2022)

Rethinking our Laws, Legal and Criminal Justice Institutions

If we are to move forward, we cannot continue to do the same things and expect a different result. To change the outcomes, we must change the structures and procedures. These changes will not come overnight and reflect different processes, not specific events. These changes must start with recognizing that the problems are not individual or isolated but collective and systemic. This means that what happens in one institution impacts what happens in others. More succinctly, concentrating on one institution and one set of racial outcomes fails to produce meaningful changes. Wealth accumulation and economic disparities are long-term problems reflecting generations of discriminatory practices in employment, access to loans (for investments and home purchases), and of course, education (both access and success) and training. Systemic changes would start with our educational system and dismantling the cradle-to-prison pipeline.

  Repeated studies have reaffirmed Dewey's assertion that we must center the educational experiences on the learner. (See for e.g., Santi and Gorghiu 2017) Such student-centered learning means that the learning material, pedagogies, and practices embody the various student identities as subjects rather than as objects. Students of color often see themselves as objectified, problematized or ignored within the academic context. Alternatively, teacher characteristics consistently are demonstrated to impact student learning outcomes. What this means, for example, is that Black, LGBTQ, Latino, and female teachers significantly impact Black students. (Gershenson et al. 2017) Increasing the proportion of Black and Latino teachers can significantly decrease the frequency of school suspensions experienced by Latino and Black students (Shirrell, Bristol, and Britton, 2021). Similarly, the increased presence of black police officers leads to decreased police-involved deaths. (Pyo 2022) Increasing the diversity of juries help to ensure that outcomes are less biased. (Seabury 2016)  

These measures will only be beginning, but in so doing, we might just be able to make the American dream more of a reality for more of our citizens – regardless of accidents of birth. Until then, we shall continue to (re)discover that the dream is a nightmare for too many Americans.