Conversations That Matter: Disparities in the Application of Law Among Ethnicities

"When examining the current structure of the United States’ criminal justice system, several staggering patterns and truths emerge. These discrepancies are perhaps best observed with a fundamental understanding of the War on Drugs."

As of 2017, the United States’ population stands at around 325 million. According to a 2017 Prison Policy Initiative report1, there are an estimated 2 million Americans behind bars, which the report defines as the sum total of state prison, local jail, and federal prison populations. Over a million of that 2 million figure are African-Americans. Concurrently, The Sentencing Project, a Washington D.C.-based nonprofit organization working to reform the criminal justice system, further reveals that people of color (POC) constitute 37% of the U.S. population but make up 67% of the prison population. Both reports clearly show that when it comes to White-Americans, Latino-Americans, or other non African-American ethnicities, less than 1% of each respective ethnicity is incarcerated. For African-Americans, over 2% of their total population is behind bars. This is not a mere statistical aberration.

Surprisingly, the United States bears the undesirable distinction of having the highest rate of incarceration among the global community, incarcerating more per 100,000 residents than do even the most repressive regimes, including Iran, Russia, and China. When examining the current structure of the United States’ criminal justice system, several staggering patterns and truths emerge. These discrepancies are perhaps best observed with a fundamental understanding of the War on Drugs, a campaign launched by President Richard Nixon in 1971 and expanded by President Ronald Reagan during the 80s, and its enduring implications. Before the War on Drugs was declared in 1980, there were 50,000 people behind bars for nonviolent drug law offenses; by 1997, that figure had skyrocketed to 400,000, a 700% increase. Instinctively, that statistic suggests the rate of nonviolent drug law offenses must have risen to result in such a steep rise in prisoners. Unfortunately, that is a dangerously convenient fallacy. In reality, that sharp spike was driven by the War on Drugs, a concerted effort to target and disenfranchise certain ethnicities under the veil of a public concern for the imagined scourge of illegal drugs. Nixon’s own top aide, John Ehrlichman, admitted years later that during Nixon’s 1968 campaign, there was a deliberate attempt to vilify and thus severely skew, public perception of Blacks and hippie communities. Both communities were perceived political adversaries, one because they were against American war efforts and the other because they were simply Black. From Ehrlichman’s perspective, “we knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course, we did.” Following Nixon’s resignation, both administrations under Ronald Reagan and Bill Clinton intensified the War on Drugs with staggering policies, namely Clinton’s three-strikes law and Reagan’s Anti-Drug Abuse Act of 1986, which introduced mandatory minimums for drug offenses. By the end of Clinton’s administration, the total prison population had mushroomed by 673,000, 53.6% more than it did during the Reagan administration.

“Following Nixon’s resignation, both administrations under Ronald Reagan and Bill Clinton intensified the War on Drugs with staggering policies, namely Clinton’s three-strikes law and Reagan’s Anti-Drug Abuse Act of 1986, which introduced mandatory minimums for drug offenses.” 

Inconsistent application of law runs deeper in our history than simply during the War on Drugs. In 1886, shortly after the first wave of Chinese immigrants came to the United States, Lee Yick, a laundry facility business owner, was arrested by the San Francisco police in a case that later reached the Supreme Court. The subsequent case would become the first instance in which the Supreme Court cited a direct violation of the 14th Amendment and touched on the pervasive and pernicious power that prejudice had, and still has, in the unequal application of law. In Justice Matthew’s decision, he stated “though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution.”

This destructive tendency, both the evil eye and the unequal hand, is why much of America, including myself, was incensed with Judge Aaron Persky’s criminally lenient sentencing of Brock Turner, an unapologetic rapist who served 3 months for sexually assaulting and raping an unconscious 22-year-old woman. It is why Cory Batey is now serving 15-25 years for a similar rape offense. It is why an assistant U.S. attorney once tried to drop the gun charge against a defendant, citing: “he’s a rural guy who grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.” It is why U.S. veteran Clinton Drake was sentenced to five years in jail for having $10 worth of marijuana on him. It is why David Becker, an 18-year-old, received months of probation on charges of indecent assault because his counsel believed Becker “shouldn’t be branded for life with a felony offense and branded a sex offender”. To be clear, it is not my intent to absolve anyone of any degree of criminality. It is merely a call to attention with respect to the stench of piercing injustice that seems to only manifest itself in the most devastating of fashions for certain groups of people and less so for others. As Michelle Alexander emphasizes in The New Jim Crow, it seems in our current criminal justice system, “whiteness mitigates crime, whereas blackness defines the criminal”. In a system such as our current one, race-neutral laws do little to protect against discriminatory violations and instead grant administrators of law unbridled discretion to continue handing our charges and convictions with a disturbing degree of inconsistency.

FOOTNOTES

  1. Mass Incarceration: The Whole Pie Report, Prison Policy Initiative, 2017
  2. One in 100: Behind Bars in America, PEW Center on the States, 2008
  3. Brief History of the Drug War, Drug Policy Alliance
  4. The Clinton Dynasty’s Horrific Legacy: How “Tough-on-Crime” Politics Built the World’s Largest Prison System, Justice Policy Institute, 2015
  5. Yick Wo v. Hopkins, Cornell Law School, 1886
  6. Michelle Alexander, The New Jim Crow, 118
  7. High School Athlete Avoids Jail After ‘Mistake’ Of Sexually Assaulting Unconscious Classmates, ThinkProgress.org, 2016
  8. Michelle Alexander, The New Jim Crow, 199

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Alex is one part Southern CA and one part all of the cities he has been fortunate enough to have visited and lived in. He is as likely to be found listening to Nas, Elton John, and Sam Cooke as he is likely to be found playing basketball, attending a Ducks game, hiking Crater Lake, or reading about neuroplasticity. Long-term, his focus is two-fold: to challenge every corner of his comfort zone and to evolve into leadership so he can help to empower his 7.5 billion brothers and sisters. Oh, and he loves a good conversation.

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