Many people believe that the United States, despite considerable progress made (especially in recent decades), retains a serious problem of racial inequality in many areas of life. Proponents of this view point to higher unemployment rates for Blacks, for example; higher incarceration rates for them; and policies that appear to be meant to prevent them from voting. The other side argues that the racial problems have been solved—Blacks are now allowed to participate fully in society, and a Black man was recently elected and then re-elected President of the United States. The focus here will be on the more specific question of whether the criminal justice system in America is racially biased. Potential problems here include racial profiling, higher rates of stop-and-frisks, inferior legal representation, and stricter sentencing practices for Blacks. Many have argued that each of these cases, and more besides, show clear racial bias. On the other side, some think that it is simply a myth that the criminal justice system is racially biased. The thesis of this project is that the former group is correct—there is overwhelming evidence that all or nearly all elements of the criminal justice system in the U.S. is egregiously racially biased.

Alexander (2012) has become the classic text when it comes to studying racial inequality in the specific area of the criminal justice system. The overall thesis of her book, obvious from her title, is that the system of mass incarceration of African Americans has replaced the older system of “Jim Crow” laws as a means of disenfranchising Black people in the United States. A secondary thesis is that the fact that we live today in a “colorblind” society—that is, a society in which overt displays of racism are not tolerated—has actually made things worse when it comes to Blacks and the criminal justice system. A central reason for this is that those who are maltreated in the system have no legal recourse unless overt bias or intent can be demonstrated. So, we have a racist criminal justice system which, because it is a colorblind form of racism, seemingly cannot be changed using existing legislation or other power structures.

While Kendi (2016) does not focus exclusively on racism in the criminal justice system, his very comprehensive discussion of the history of racist ideas does incorporate material on this system; more importantly, however, it provides indispensable historical background concerning the ways that racism has evolved from pre-slavery days in early America to the present day. He does devote two entire chapters of her book (chapters 32 and 33) to two immediately relevant topics, law and order, and Reagan’s “war on drugs”, respectively. Kendi explains how Reagan’s “war on drugs” was both a backlash against the civil rights gains of the previous decades and a way to divide Blacks and Whites by convincing the latter that the former is much more likely to be criminals than are Whites. The close association, abetted by the media, of Blacks with crime ensured that numbers Whites would effectively vote against their own economic interests—thus keeping conservatives such as Reagan in power—because they associated social programs intended to help the poor as disproportionately benefiting Black people.

It is nearly impossible to find articles published in respectable academic journals which argue against the thesis of this project, namely that the criminal justice system is racially biased against certain minorities. The reason for this is presumably that the thesis is not really controversial among informed parties. However, many non-academics reject the thesis. Elder (2012) is typical of those who reject the thesis. His article describes what he calls “five myths” about the ‘racist’ criminal justice system. The first myth, according to Elder, is that Blacks are arrested at higher rates than Whites. The second is that Blacks are sentenced more harshly by courts than are Whites. The third supposed myth is that the sentencing disparities between crack and powder cocaine account for the large percentage of Blacks who are incarcerated today. The fourth myth is that the “war on drugs” accounts for this large percentage. Finally, the fifth supposed myth is that there are more Blacks in prison today than in college.

Three resources that support the thesis of the present project will be briefly described in this section. Lopez (2010) discusses what he calls “post-racial racism”. This is similar to what Alexander means by her notion of colorblind racism. Lopez’s more specific concern is to discuss racial stratification and mass incarceration in the age of a (now former) Black President. Lopez notes that the election of Obama in 2008 was a racially historic moment. However, he argues that even now there is a racialized system of mass incarceration; like Alexander and Kendi, he attributes this partly to a continuing backlash against the civil rights gains of the 1960s. Like Alexander, Lopez also links mass incarceration with lynching campaigns and Jim Crow laws of the past. His conclusion is that we need to resurrect a notion of post-racial racism—a view of racism that recognizes its reality and power even as overt displays of racism are in a sense (or were, until 2016) not tolerated in the United States. Racism for Kendi, especially including racism in the criminal justice system, is a systemic matter, rather than a product of individual intentions or beliefs.

Brewer and Heitzeg (2008) discuss the notions of criminal justice, colorblind racism, and the “political economy of the prison industrial complex” (p. 625). Prominent elements of this system include police scrutiny (including baseless or even illegal stop-and-searches), economic marginalization, and political disenfranchisement. Again, these authors anticipate much of what Alexander argues in her book. Being sent to prison is not only unpleasant in itself, but it has momentous economic and political consequences for the individuals involved. Blacks, who are more likely to be poor than Whites, often incur debts along the path from being arrested to be sentenced to being released. Furthermore, it is exceptionally difficult for a Black person with a criminal record to get a good job or find good, affordable housing. Finally, in nearly every state prison inmates cannot vote while incarcerated, and in most they cannot vote even after being released. Hence, the system of mass incarceration of Blacks serves as a means of social control—it ensures that they remain poor and have no political voice in the sense that they cannot even vote. Indeed, steps are often taken to prevent even minorities who have not had trouble with the law from voting: this is the unspoken purpose of restrictive voter identification laws and policies.

Finally, the American Sociological Association report, issued in 2007, provides a wealth of data concerning race, ethnicity, and the criminal justice system. The report supports the thesis of the present project. For example, its authors note that “Although overt crimination has diminished in the criminal justice system over recent decades, at the beginning of the twenty-first century, we continue to grapple with the perceptions of and the reality of unfairness in our justice system” (p. 2). The statistics provided in the report are particularly useful in combatting those, like the author discussed above, who deny that the American criminal justice system is racist. They like to point to statistics to support their view. However, as this report makes clear, there is an easy three-step proof that the criminal justice system is racially biased. First, Blacks make up only about 15% of the total U.S. population. Second, Blacks account for around half of the total prison population. And third, Blacks do not commit crimes, including drug-related crimes, at higher rates than do whites.

It is a mistake to think that racial inequality in the United States is caused by, or itself causes, only a single set of states of affairs. While the focus of this literature review has been racial inequality in the United States’ criminal justice system, this inequality is not something that exists in isolation from other factors in race relations. This section will mention briefly some other sources of, and consequences of, racial inequality that are related to, but distinct from, racial inequality in the U.S. criminal justice system.

Aranda and Vaquera (2015) note that undocumented immigrants in the U.S. face negative outcomes or consequences that non-minorities do not face. For example, Hispanics face—particularly under the current Presidential administration—tremendous discrimination and even physical danger in attempting to arrive at, and remain in, the U.S. Children are particularly affected by this discrimination. Similarly, Bayer, Fang and McMillan (2014) describe a form of inequality and discrimination that is too little recognized—that involved in location and residence. For decades so-called “Sundown towns” (of which there were thousands) threatened African Americans with violence, and very often made good on their threats, if the Blacks remained in town after dark. This drove them to inner cities. After factory jobs were closed, or moved outside the country, this left Blacks with few good options. Furthermore, residential assistance such as was provided to Whites under Roosevelt’s “New Deal” was virtually never provided to Blacks. Bloome (2014) describes how, despite the United States’ official policy of “colorblindness”, income inequality persists in the case of racial minorities—especially African Americans—as do problems stemming from negative outcomes for family structures.

Cohen (2018) explains how Black experience is still largely ignored by American society, and many individual Americans. Gunn (2018) articulates four respects in which racial inequality persists in U.S. society: secondary-education graduation rates; poverty rates; incarceration rates; and infant mortality rates. Martinovich (2017) points out three areas in which racial inequality is prominent. One is a lack of home ownership status; employment inequality; and wealth inequality. Finally, McCoy (2018) discusses an issue that connects directly with the main focus of this literature review—disproportionate cannabis arrest rates for African Americans, which do not correspond to any significant difference in use of cannabis between African Americans and Whites.

Sentencing disparities in the US prove that the system is still based in large part on race, and that racial disparities exist. People who are convicted of crimes tend to be sentenced on the basis of individual factors, and their sentences can operate in a range. However, when the defendants are black or Latino, they tend to be sentenced more harshly for all crimes. One of the ways to see this is through the sentencing disparities between crack cocaine and powder cocaine in America. Despite the fact that crack cocaine and powder cocaine are roughly equivalent in terms of damage and addictive nature, they have long been punished differently. Crack cocaine has received more serious sentencing than powder, which matters entirely because crack cocaine is much more likely to be used by African-Americans, while power cocaine has long been the drug of choice among white people and affluent individuals. This shows the way that racial disparities can exist even while there are laws that look to be neutral on their face. That these disparities exist is good evidence of the way racial inequality still pervades the existing system.

Another sign of the racial disparities in the criminal justice system is in regard to the certification of young people to stand trial as adults. In the American criminal justice system, young people tend to be asked to stand trial in adult court rather than juvenile court when their crime is so egregious that the state demands them to be tried as adults. This is the process known as certification, where a judge gets to decide if the situation fits one in which the child should be taken out of the juvenile system. Importantly, the research reveals that young black children are more likely than their white counterparts to be pushed into the adult system rather than staying in the juvenile system. This may be based on the fact that young black children tend to appear older, thus losing out on the benefit of their child-like innocence. This is made worse by the fact that young black males tend to be sentenced more harshly by juries once they are certified to stand trial as adults. The same factors that cause bias among judges tend to cause bias among the jurors who end up making these determinations later in the process. That young black children are much more likely to find themselves facing trial as adults shows yet another way in which racial disparities pervade the system, but this is surely not the only way.

Another way in which racial disparities are manifested in the system comes on the front end, with stoppage and arrest rates. It has been shown through studies that people of color are much more likely to be pulled over when they are driving. They are more likely to be stopped on the street, as well, to be questioned or searched by police. Critically, this is true even when people of color are less likely to have contraband on them when they are finally searched. For instance, if a person of color is walking down a street in New York City, they are much more likely to draw the eye of a police officer, and this can then cause that individual to be stopped and questioned. More often than not, people of color subjected to this are found to have nothing illegal on them. However, the higher stoppage rates lead to more arrests. On that front end, where the system begins, people of color are trafficked into the system with much more frequency. In addition to just considering the rates of stop and search, one must consider that these stops and searches tend to lead to another area where there is significant difference in terms of treatment. Traffic stops and other searchers are the lead-in to police violence against individuals, and black and brown people tend to experience this on a more acute level than white people, as well. While the front end is critical, some argue that it is on the back end where these things become more problematic.

The back end is the death penalty, the most serious punishment of all, and racial disparities impact this system, too. The death penalty is applied in America only for murders, and it is only applied in states where this is legal. While the death penalty is erratic in its application, there are many racial disparities that come through when considering the punishment. Critically, when it comes to the death penalty, black people are much more likely to be executed than white people for the same crimes. This is true when one looks at things on a percentage or rate basis. In addition to this, there is more likely to be the imposition of the death penalty whenever the victim is white. For instance, no matter the race of the person who does the killing, the death penalty is more than two times more likely when the victim happens to be white. This brings up the likely conclusion that society is much more likely to express its outrage for these events whenever a white person’s life has been taken. Black deaths and victims do not raise the temperature of society enough to bring about this result. This shows that from the start to the end of the criminal justice process, racial disparities are a critical part of what has taken place.

The sources here provide strong evidence that the criminal justice system in the U.S. is racially biased in numerous respects. While there is a plethora of facts and statistics that one could, and that many do, point to, the basic case for the thesis was just stated. In effect, it could not possibly be the case that the system is not racially biased given that Blacks are incarcerated in far higher percentages than Whites but do not commit more crimes than Whites. The final section described other sources of, and consequences of, racial inequality.