Vol. 15 No.3 (March 2005), pp.264-268

RACIAL ISSUES IN CRIMINAL JUSTICE:  THE CASE OF AFRICAN AMERICANS, by Marvin D. Free, Jr. (ed.). Monsey, New York: Criminal Justice Press, 2004.  283pp.  Paper. $36.50.  ISBN:  1-881798-55-0.

Reviewed by Debra S. Emmelman, Department of Sociology, Southern Connecticut State University. Email: emmelmand1@southernct.edu.

This relatively short book manages to cover a very broad yet comprehensive range of topics regarding African Americans and the criminal justice system.  Three distinct areas of concern are covered, opening with the significance of race and criminal justice in the larger context of American society, then proceeding to specific criminal justice responses to crime and African Americans, and concluding with a discussion of solutions to the problem of racial inequities in the criminal justice system.

The editor, Marvin D. Free, Jr., begins the book by reviewing crime statistics that reveal the overrepresentation of African Americans in arrest rates, juvenile institutions, adult incarceration rates and rates of receiving harsh penalties.  He then counters assertions that these rates may not actually reflect racial discrimination by taking a close look at two types of offenses for which African Americans are disproportionately arrested:  drug abuse violations and violent Index crimes. Regarding the first, Free demonstrates that African Americans’ higher drug abuse arrest rates are due to selective drug legislation aimed primarily at the poor and people of color and selective enforcement of such laws—specifically, legislation and enforcement aimed at controlling crack cocaine.  Regarding the second, he persuasively argues through unofficial sources of data, as well as comparisons between the ten most and least common offenses for which blacks and whites are arrested that African Americans’ higher arrests rates appear to have a great deal more to do with police discretion than with actual commission of crime.

This introductory chapter provides a good framework for the remainder of the anthology, as well as a good starting point for critical thinking and discussion regarding the relationships between African Americans and the criminal justice system.  The intellectual stimulation does not stop here.  Every essay in this edited volume has something unique and thought provoking to contribute.

Part I of the book begins with Robert Engvall’s interesting and insightful explanation of the relationship between the disproportionately high arrest rates of African Americans, the underrepresentation of African American scholars in the area of criminal justice, and the marginalization of criminal justice studies in the academy.  He argues that these three trends reflect not merely the oppression of African Americans by the white majority but more explicitly the secondary status that American universities and colleges relegate to the scholarly investigation of and dialogue [*265] about such a vital issue.  In a similar capacity, Michael A. Hallet very credibly contends in the next chapter that the unduly high imprisonment rate of African Americans in private, for-profit prisons are the equivalent of yesteryear’s slavery system.

In a perhaps less controversial yet no less stimulating fashion, Sarah Eschholz refutes the common belief that the media create and perpetuate the stereotype of criminals as minorities (and vice versa) by disproportionately portraying offenders as minorities.  She also finds that this image is not created through the media’s underrepresentation of minorities as crime victims.  Instead, in this last chapter of Part I, Escholz presents evidence that the image of minorities as criminals may be propagated through the media’s portrayal of an unrealistic offender-to-victim ratio.  In other words, minorities are a great deal more likely to be portrayed as offenders rather than as victims.  Thus, they are more likely to be perceived as predators.  Certainly, this chapter encourages one to contemplate both the method described by the author and other ways people in the U.S. appear to have acquired the image of criminals as minorities, as well as minorities as criminals.

Part I allows the reader to explore the many ways in which the larger social order plays an important role in propagating racial inequity in the criminal justice system.  Part II examines how the criminal justice system itself, ranging from legislation to procedures of arrest, court processing and punishment, reinforces racial inequities.

Michael J. Lynch and Amie M. Schuck begin the essays in Part II by observing the statistical inaccuracies and assumptions behind racial profiling.  They assert that if such profiling reflected actual offense patterns, the racial profile of the offender would be white.  Following this critique, Katheryn K. Russell shows the reader how the “Driving While Black” phenomenon actually extends far beyond traffic stops and even the criminal justice system.  She further posits that such profiling results in a vicious cycle of black marginalization and disrespect for the system.

Somewhat reminiscent of the second chapter, the essays in Chapters 7 and 8 suggest that scholarly work should be read critically.  Byers, Becker and Opiola show us that although African Americans comprise the majority of hate crime victims, they are vastly underrepresented in hate crime research.  Taking the position that the problem and seriousness of hate crime are socially constructed, the authors argue that these patterns reflect the influence of special interest groups and the popular press. Nevertheless, they concede that a more precise explanation is currently unavailable and that more research is needed.  In Chapter 8, Marvin Free reviews research on race and presentencing decisions and finds that, on balance, studies indicate racial disparities in decision-making.  Perhaps more remarkable in this essay, however, is Free’s critique of research designs that may obscure the various effects of racial discrimination.  Both explicitly and implicitly, these two chapters also suggest alternatives for further research.  [*266]

In Chapter 9, Becky Tatum provides fodder for dialogue regarding the juvenile justice system in general and the transfer of juveniles to adult courts in particular.  Tatum first provides an overview of the methods for transferring juveniles to adult courts.  She then presents evidence that the primary purpose of the juvenile court, as well as the transfer of juveniles to adult court, is to control and punish minority youth rather than youth in general.  She argues that politicians typically support such policies because of public pressure, which stems from perceptions and fear of crime shaped in large part by the media.   Racial discrimination in decision-making then occurs for various reasons (including conscious and unconscious biases as well as differences in backgrounds) throughout the processing of youths by juvenile justice officials and ultimately culminates in racially disparate rates of transfers to adult court.   Compounding this injustice, current research suggests that treating juveniles as adults has no deterrent effect on serious juvenile crime, and in fact, is more likely to make things worse for the youths as well as minority communities.

David V. Baker discusses the racist application of the death penalty in Chapter 10.  By reviewing research on capital punishment in the context of three landmark decisions of the U.S. Supreme Court (FURMAN v. GEORGIA, GREGG v. GEORGIA, and MCCLESKEY v. KEMP), he argues that the death penalty is capriciously imposed on black defendants and serves the extra-legal function of preserving majority group interests.  Moreover, he maintains that the discrimination that occurs in capital sentencing is deliberate.  He finds that the primary reasons black defendants with white victims are denied fairness in capital sentencing are prosecutorial discretion in the selective prosecution of capital cases, prosecutorial misuse of peremptory challenges to systematically exclude blacks from juries, judicial overrides by trial judges, prosecutorial misconduct, and the ineffective assistance by defense counsel. Overall, I found the greater part of Baker’s arguments persuasive.  However, he did not entirely convince me that racial discrimination in capital sentencing is necessarily intentional.  Other than some rather vaguely described episodes, the closest he comes to supporting this last allegation is his reference to Sorensen’s and Wallace’s study on prosecutorial discretion, whereby the authors conclude that such discretion amounts to intentional discrimination (p.189).  Nevertheless, I find Baker’s allegation to be intellectually challenging and certainly worth debating in the context of a classroom or a court of law, as well as exploring through additional research.

While some of the earlier chapters state or imply various solutions to the problem of racial inequity in the criminal justice system, those in Part III address this matter more directly, considering whether certain alternatives actually work and offering some other worthwhile prospects.

In Chapter 11, Helen Taylor Greene discusses whether African American police make a difference.  She employs the colonial model as a theoretical framework for understanding both the effectiveness of and limitations placed upon these police both historically and in present times.  Early versions of the [*267] colonial model asserted that police, regardless of color, are an oppressive occupying force in many communities.  More recently, it is seen that although there is still political subordination, black political empowerment and ascendancy in many law enforcement departments mitigate police colonialism.  After tracing the history of black policing in the U.S., she argues that, despite the lack of research on the issue, it is self-evident that black police chiefs especially impact policing because they have the power to establish priorities within their agencies and affect law enforcement policy on a national level.  Anecdotally, it also appears that black officers through community policing efforts have had some positive effects.  Like most of the other contributors to this volume, Greene concludes the chapter with some suggestions for research.

In the next chapter, Elissa Krauss and Martha Schulman take issue with the allegation of black juror nullification.  Juror nullification refers to the jury’s right to determine both the law and the facts of a case and to act contrary to the law.   Some have recently argued that African American jurors are likely to judge cases on preconceived race-based notions about justice rather than on the evidence.  Krauss and Schulman demonstrate that, contrary to such claims, black jurors follow the law; i.e., they hold the prosecutor to the burden of proof and demand that the defendant be proven guilty beyond a reasonable doubt.  In contrast, white reproach of black juror behavior assumes that the juror’s role is to convict the defendant and fails to realize that so-called “color-blind” justice presupposes the logic and experiences of whites—not blacks.  Thus while black juror nullification has been proposed by some as a solution to racial inequity in the courts, the authors maintain that it has not been, and apparently need not necessarily be, practiced.

In an effort to remedy inequity in the courtroom, Hiroshi Fukurai, in the next chapter, proposes using one of four alternative methods for selecting jurors.  Called models of affirmative jury selection, like Affirmative Action programs, they hold the promise of rectifying the problem of inadequate representation of minorities on juries, or, the failure of minority defendants to be judged by a jury of their peers.   These models are the split jury (or the jury de medietate linguae), in which half of the jurors come from the majority and the other half from minority groups, the proportional jury, in which the extent of juries’ racial representativeness reflects the respective proportion of both majority and minority groups in the general population, the quarter jury, in which the twelve-member jury must have at least three minorities to resist group pressure from the white majority in decision-making process, and the author’s personal favorite, peremptory inclusion, in which the final jury is chosen by affirmatively selecting from the eligible pool those jurors who share racial, sociocultural, and other cognizable background characteristics as those of the defendants.  To me, all of the alternatives appear as viable options for establishing greater fairness in jury trials and certainly warrant serious consideration.

In the final chapter of the anthology, Robert Conners considers whether the practice of “restorative justice” is [*268] actually restorative.  He employs a perspective that he calls oppression theory, or, a “framework of minority discourse that addresses issues of context and societal inequality” (p.256).   Unlike retributive justice, that holds offenders accountable to the state, restorative justice is said to hold the offender accountable to the victim, the victim’s primary social circle, and to the community.  Praised by many as a more humane and evenhanded practice, Connors considers the extent to which such methods can actually establish justice in light of social, economic and political inequality.  He finds that although some restorative justice commentators have acknowledged the importance of inequality, there has been no attempt to rectify the problems related to a system of oppression.  Thus, restorative justice as currently formulated is misdirected and serves to reaffirm the status quo.  In conclusion, Conners proposes some very pragmatic and valuable diagnostic questions that practitioners might use to reformulate measures of restorative justice.

Overall, I truly enjoyed reading this book.  Not only did it cover a wide range of topics and issues, but every chapter in the anthology provided me with something important to think about and discuss with others.  It promises to stimulate a great deal of critical analysis and debate in the classroom, and I would highly recommend it as either a primary text in the area of criminal justice and minorities or a supplementary text used to enhance discussions of inequality in other types of criminal justice courses.  Because the text might be approached at various levels of critical thinking and analysis, I also believe it could be used in both undergraduate and graduate courses.  The only shortcoming I can find in this book (assuming I can actually call it a “shortcoming”) is that I wish it were longer and contained more such readings!

CASE REFERENCES:

FURMAN v. GEORGIA, 408 US 238 (1972).

GREGG v. GEORGIA, 428 US 153 (1976).

MCCLESKEY v. KEMP, 481 US 279 (1987).

*************************************************

© Copyright 2005 by the author, Debra S. Emmelman.