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Race and its relation to crime is a very inflammatory issue in American politics today. In David Coles Book, No Equal Justice and Randall Kennedys book, Race, Crime, and Law the two authors try to respectively outline the problems of race as it relates to crime and offer some remedies to the problem. David Cole wrote, our criminal justice system affirmatively depends on inequality. Cole has substantial grounds for making this statement. Race and class have long been issues in the criminal justice system, but does the system "affirmatively depend on inequality?" Does the criminal justice system depend on the disparities of the people that it serves?
There is clearly a problem of racial discrimination evident in the criminal justice system today. This problem exists as a result of historical discrimination combined with a wide amount of discretion on the part of law enforcement and prosecutors. At the heart of the problem is the racial stereotypes that individuals carry with them. This problem may be aided by legislation and stronger enforcement of policies outlawing discrimination, but can never be solved unless people on an individual level fundamentally stop thinking in terms of racial stereotypes. American justice is supposed to be blind.
Despite this there have been many disparities in the justice system due to racial, social class, and economic reasons. "Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection of our liberties as we do" (Cole, 1999). The case of Gideon v. Wainwright can be used to illustrate this point. Clarence Earl Gideon, a penniless Florida man, down on his luck and charged with breaking and entering a poolroom, claims that although he cant afford a layer, he has a constitutional right to have a lawyer appointed by the state to defend him. When the Florida trial court denies his request, Gideon represents himself, and is convicted.
From prison, Gideon sends a hand-written note to the Supreme Court asking it to hear his case. Abe Forums is appointed to argue Gideon's case, and then the Court rules that the Sixth Amendment guarantees indigent defendants the assistance of a lawyer in all serious criminal trials. On retrial, with a lawyer paid for by the states, Gideon is acquitted. The Gideon v. Wainwright may not appear to support the previous statement: Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection of our liberties as we do (Cole, 1999). The outcome of Gideon requires government to provide a lawyer to a defendant, but as long as the state provides a warm body with a law degree and a bar admission, little else matters (Cole, 1999).
Even though the state provides indigent defense counsel, most are underpaid, overworked, and given insufficient resources to conduct an adequate investigation and defense (Cole, 1999). Cole states that in 1990, the national average per capita spending on local and state indigent defense was $ 5. 37 Cole also points out other facts about the ruling in Gideon v. Wainwright: One of the most remarkable facts about the constitutional right declared in Gideon v. Wainwright is that it was not a constitutional right for the first 184 years of our Constitution. The Sixth Amendment guarantees that In all criminal prosecutions, the accused shall enjoy the rights have the Assistance of Counsel for his defense. But for most of our history, this right applied only to the approximately 10 percent of criminal trials that take place in federal court, and even there is meant only that defendants who had the money to do so could hire and attorney to defend them.
What this establishes is the inequalities of defense in the legal system. Those defendants that cannot provide their own council are at a disadvantage since the council they are appointed is often inadequate. The judicial system has come to rely on this fact to produce convictions. The affirmative dependence of our justice system on inequality can be illustrated another way. If our justice system were based on equality, then the reversal of racial and social roles would not affect the system. But the system is dependent on inequality, Cole shows this: Imagine what kind of pressure legislatures would feel, for example, if one in three young white men were in prison or on probation or parole.
Imagine what the politics of the death penalty would look like if prosecutors sought the death penalty 70 percent of the time when whites killed blacks, but only 19 percent of the time when blacks killed whites. Or imagine what our juvenile justice policies would be like if white youth charged with drug offenses were four times as likely as black youth to be tries as adults, and twice as likely to be placed outside the home. On this is certain: the nation would not accept such a situation as inevitable. Cole illustrates how our judicial system is dependent on inequality. Cole brings to our realization that if the roles of inequality were reversed, the judicial system would change drastically and in doing so would point out its own dependence on those inequalities. The inequalities of the justice system can also be shown in the evolution of laws.
When laws begin to affect large numbers of white middle- and upper-class people, the laws begin to change. An example would involve the spread of marijuana use. Strict laws of the early and middle part of this century prohibiting the use of marijuana were imposed because the majority of users were lower-class minorities. But during the 1960 s and 1970 s, the use of marijuana spread though the youth of white middle- and upper-class America (Cole, 1999). This spurred changes in the judicial system to ease the laws affecting marijuana use.
Cole summarizes the situation: When the effects of a criminal law reach the sons and daughters of the white majority, our response is not to get tough, but rather to get lenient. The racial discrimination is evident in many cases but the first place where racial discrimination is seen the best is in police stops, either in a car or on foot. Police are given an almost unlimited amount of discretion with regard to which they search and for what reason. Because minorities are more likely to commit crimes statistically, many police officers may use their reasonable suspicion to search somebody purely based on race. This has led many Blacks and Hispanics to feel harassed by police for being searched for no apparent reason aside from the color of their skin. This feeling of harassment leads to a disassociation and distrust for law enforcement overall in many minority communities.
This distrust can sometimes lead to hostility against police and cause police to discriminate even more against these minorities. On a formal level, the reasonable suspicion distinction seems like it could be an effective tool for law enforcement. However, on a substantive level, and in practice, police can search almost anybody for any particular reason they want, stated or unstated. An officer can simply ask permission to search somebody. Most people, especially poor inner-city minorities, are unaware of their constitutional right to say no to the search. The police officer is in a position of authority and people see a request for a search as a command.
Moreover, if people are bold enough to say no to the search, the police officer can claim that the denial of a search qualifies as a reasonable suspicion to search the person because they are being evasive. If the police can use a citizens negative answer against her, then she is not truly free to say no. Police are given far too much discretion with regard to searches. It would often be very difficult to determine whether an officer made a given decision based on a racial bias if the officer keeps silent as to the aspect of his selectivity and mentions only the non-racial clues that prompted him to act.
This fact is very difficult to argue with. A police officer will surely not admit to searching somebody because of their race, and will probably easily be able to state a different reason. On one hand, if police are to effectively prevent crime and arrest criminals, they must be allowed some discretion in whom they search. On the other hand, racially based searches affect the larger racial community as a whole. This issue is very difficult to resolve.
The right answer seems to be to try to restrict the discretion of police officers, making them use more concrete evidence to justify searches. But this would only have the substantive effect of forcing officers to find another reason to search a person who they are going to search anyway because of race. The only way to truly affect things would be for our society as a whole to stop stereotyping people based on race. This is no easy task; and it is not something that can be done simply by legislation. It requires all people, not just law enforcement and people involved with the criminal justice system, to stop judging people based on race. As Kennedy states, an individual does not become an altogether different person when he dons the uniform of a police officer; reflexes that he develops and exhibits in his private life are likely to reemerge.
Our law enforcement personnel are individuals and do carry with them personal biases and stereotypes that exist in the world around them. Unless the attitudes of all people are changed, the attitudes of law enforcement will not change. It is very clear that there exist today many racial injustices in the criminal justice system, particularly involving searches and jury selection. While some suggest the solution to these problems would require more legislation and stronger enforcement of policies removing racial discretion from decision making, we must go much further than that in order to institute a genuine fundamental change.
This would require our entire society to think much less in terms of race and to do away with such harmful stereotypes. This idea may seem far off and difficult to attain, but I believe it could happen considering the evolution of civil rights in the US in the past 150 years. References Cole, David. No Equal Justice: Race and Class in the American Criminal Justice System.
New York: The New Press, 1999. Kennedy, Randall. Race, Crime, and Law. New York: Harcourt Brace & Company, 1996.
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Research essay sample on Criminal Justice System Based On Race