This article has been updated since its original publication in September 2018. If you know of a study I’ve missed or are aware of a forthcoming study, email me.
In 2016, Sen. Tim Scott (R-S.C.) gave a powerful speech on the floor of the U.S. Senate. Scott talked about how he had been repeatedly pulled over by police officers who seemed to be suspicious of a black man driving a nice car. He added that a black senior-level staffer had experienced the same thing and had even downgraded his car in the hope of avoiding the problem. Given that Scott otherwise has pretty conservative politics, there was little objection or protest from the right. No one rose up to say that he was lying about getting pulled over.
The thing is, most people of color have a similar story or know someone who does. Yet, there’s a deep skepticism on the right of any assertion that the criminal justice system is racially biased. In early August 2018, National Review editor and syndicated columnist Rich Lowry wrote a column disputing the notion that our system is racist. Andrew Sullivan wrote something similar in New York magazine. (Interestingly, both Lowry and Sullivan cite criminologist John Pfaff to support their positions. Pfaff has since protested on Twitter that both misinterpreted what he wrote.) And attempting to refute the notion that the system is racist has become a pretty regular beat for conservative crime pundit Heather Mac Donald.
Of particular concern to some on the right is the term “systemic racism,” often wrongly interpreted as an accusation that everyone in the system is racist. In fact, systemic racism means almost the opposite. It means that we have systems and institutions that produce racially disparate outcomes, regardless of the intentions of the people who work within them. When you consider that much of the criminal justice system was built, honed and firmly established during the Jim Crow era — an era almost everyone, conservatives included, will concede rife with racism — this is pretty intuitive. The modern criminal justice system helped preserve racial order — it kept black people in their place. For much of the early 20th century, in some parts of the country, that was its primary function. That it might retain some of those proclivities today shouldn’t be all that surprising.
In any case, after more than a decade covering these issues, it’s pretty clear to me that the evidence of racial bias in our criminal justice system isn’t just convincing — it’s overwhelming. But because there still seems to be some skepticism, I’ve attempted below to catalog the evidence. The list below isn’t remotely comprehensive. And if you know of other studies, please send them to me. I would like to make this piece a repository for this issue.
I, of course, can’t vouch for the robustness or statistical integrity of all of these studies. I’m only summarizing them. But for the most part, I’ve tried to include either peer-reviewed studies or reviews of data that tend to speak for themselves and don’t require much statistical analysis. I will note that most (but not all) of these studies do factor in variables that address common claims such as that the criminal justice system discriminates more by class than by race, or that racial discrepancies in sentencing or incarceration can be explained by the fact that black people commit more crimes. And I’ve also included a section for studies that do not find bias in various aspects of the criminal justice system. There are far fewer of these, though I’m open to the possibility that I missed some.
Finally, none of this is to say that race is the only thing we need to worry about in the criminal justice system. Certainly, lots of white people are wrongly accused, arrested and convicted. Lots of white people are treated unfairly, beaten and unjustifiably shot and killed by police officers. White people too are harmed by policies such as mandatory minimums, asset forfeiture, and abuse of police, prosecutorial and judicial power.
There are problems here that are inextricable from race. And there are problems that aren’t directly related to race. But even the latter set of problems tend to be exacerbated when you factor race into the equation. On to the evidence.
Skip to a section
- Policing and profiling
- Misdemeanors, petty crimes and driver’s license suspensions
- The drug war
- Juries and jury selection
- The death penalty
- Prosecutors, discretion and plea bargaining
- Judges and sentencing
- School suspensions and the school-to-prison pipeline
- Prison, incarceration and solitary confinement
- Bail, pretrial detention, commutations and pardons, gangs and other issues
- The dissent — contrarian studies on race and the criminal-justice system
Policing and profiling
I’ve had more than one retired police officer tell me there is a running joke in law enforcement when it comes to racial profiling: It never happens . . . and it works. But the problem with trying to dismiss profiling concerns by noting that higher rates at which some minority groups commit certain crimes is that it overlooks the fact that huge percentages of black and Latino people have been pulled over, stopped on the street and generally harassed despite the fact that they have done nothing wrong. Stop-and-frisk data, for example, consistently show that about 3 percent of these encounters produce any evidence of a crime. So 97 percent-plus of these people are getting punished solely because they belong to a group that statistically commits some crimes at a higher rate. That ought to bother us.
- A New York Times examination after the death of George Floyd found that while black people make up 19 percent of the Minneapolis population and 9 percent of its police, they were on the receiving end of 58 percent of the city’s police use-of-force incidents.
- A massive study published in May 2020 of 95 million traffic stops by 56 police agencies between 2011 and 2018 found that while black people were much more likely to be pulled over than whites, the disparity lessens at night, when police are less able to distinguish the race of the driver. The study also found that blacks were more likely to be searched after a stop, though whites were more likely to be found with illicit drugs. The darker the sky, the less pronounced the disparity between white and black motorists. The study also found that in states that had legalized marijuana, the racial disparity narrowed but was still significant.
- An August 2019 study published by the National Academy of Sciences based on police-shooting databases found that between 2013 and 2018, black men were about 2.5 times more likely than white men to be killed by police, and that black men have a 1-in-1,000 chance of dying at the hands of police. Black women were 1.4 more times likely to be killed than white women. Latino men were 1.3 to 1.4 times more likely to be killed than white men. Latino women were between 12 percent and 23 percent less likely to be killed than white women.
- A 2019 study of 11,000 police stops over about four weeks in the District found that while black people make up 46 percent of the city’s population, they accounted for 70 percent of police stops, and 86 percent of stops that didn’t involve traffic enforcement.
- An October 2019 report in the Los Angeles Times found that during traffic stops, “24% of black drivers and passengers were searched, compared with 16% of Latinos and 5% of whites.” The same study also found that police were slightly more likely to find drugs, weapons or other contraband among whites.
- A 2019 study of police stops in Cincinnati found that black motorists were 30 percent more likely to be pulled over than white motorists. Black motorists also comprised 76 percent of arrests following a traffic stop despite making up 43 percent of the city’s population. It’s worth noting, again, that multiple studies have shown that searches of white motorists are slightly more likely to turn up contraband than searches of black motorists.
- A 2020 report by the Austin Office of Police Oversight, Office of Innovation and Equity Office found that blacks and Latinos were more likely than whites to be stopped, searched and arrested despite similar “hit rates” for illicit drugs among those groups.
- Another study found that in surrounding Travis County, Tex., blacks comprised about 30 percent of police arrests for possession of less than a gram of an illicit drug from 2017 to 2018, despite making up only 9 percent of the county’s population, and that surveys consistently show that blacks and whites use illegal drugs at about the same rate.
- A 2019 study of the Columbus, Ohio, police department found that while black people make up 28 percent of the city’s population, about half of the use-of-force incidents by city police were against black residents.
- A 2019 study of policing in Charleston, S.C., found that 61 percent of use-of-force incidents were against black people, who make up about 22 percent of the city’s population. The study did find that the level of force used did not significantly vary by race. White officers were more likely to be involved in a use-of-force incident than black officers. Black people also filed 63 percent of complaints against police. The study also found that black motorists were pulled over at a higher rate than would be predicted based on their involvement in traffic accidents.
- A 2019 study in Portland, Ore., found that black motorists and pedestrians were much more likely to be stopped, receive tickets and be arrested for drug possession than white pedestrians and motorists.
- A 2019 survey of traffic tickets in Indianapolis and its suburbs found that in the city, black drivers received 1.5 tickets for every white driver. In the suburban town of Fishers, the disparity grew to 4.5 tickets, and in the wealthy suburb of Carmel, black motorists received 18 tickets for every ticket issued to a white motorist.
- A 2020 study commissioned by the Charlottesville city council found significant racial disparities in the city and surrounding county’s criminal justice systems in five key areas: “seriousness of charges brought, the number of companion charges, bail-bond release decisions, the length of stay awaiting trial, and guilty outcomes.” In the city, black men were 8.5 percent of the population, but comprised more than half the arrests. In the county, black men were 4.4 percent of the population, but comprised 37.6 percent of arrests.
- A 2020 report on 1.8 million police stops by the eight largest law enforcement agencies in California found that blacks were stopped at a rate 2.5 times higher than the per capita rate of whites. The report also found that black people were far more likely to be stopped for “reasonable suspicion” (as opposed to actually breaking a law) and were three times more likely than any other group to be searched, even though searches of white people were more likely to turn up contraband.
- A 2019 report in the Intercept found that blacks in South Bend, Ind., were 4.3 times more likely than whites to be arrested for marijuana possession.
- A study of 542,000 traffic stops in Connecticut in 2017 found that the racial disparity in stops had narrowed from previous years. But it also found that blacks were more likely to be searched after stops for registration, license, seatbelt and cellphone violations. The study found that about 19 percent of searches of black motorists turned up contraband, vs. 29 percent of the searches of white motorists.
- A study of police activity between 2012 and 2016 in Springfield, Mo., commissioned by the city’s police chief, found “substantial disparities in the rate at which African-Americans were stopped, and that the disparities increased, from 2012 to 2016 in Springfield. Some of this disparity is attributable to the fact that African-Americans are stopped for investigative purposes than would be predicted given their overall proportion of stops.” The report also found that “when African-Americans are stopped they are more likely to be searched and arrested than would be predicted given their proportion of stops and searches,” and that “it does not appear that the disparity in searches for African-Americans is attributable to a greater propensity to be in possession of contraband."
- A 2019 report from Burlington, Vt., found that black drivers were slightly more likely than white drivers to be pulled over, but six times more likely to be searched. The report did find that the racial disparities were shrinking, and that since the legalization of marijuana, stops and searches of all drivers had dropped significantly.
- In their book “Suspect Citizens,” Frank R. Baumgartner, Derek A. Epp and Kelsey Shoub reviewed 20 million traffic stops. In an interview with The Post, they shared what they found: “Blacks are almost twice as likely to be pulled over as whites — even though whites drive more on average,” “blacks are more likely to be searched following a stop,” and “just by getting in a car, a black driver has about twice the odds of being pulled over, and about four times the odds of being searched.” They found that blacks were more likely to be searched despite the fact they’re less likely to be found with contraband as a result of those searches.
- In March of 2019, researchers compiled and analyzed data from more than 100 million traffic stops in the United States. What they found: Police were more likely to pull over black drivers. The researchers were able to confirm racial bias by measuring daytime stops against nighttime stops, when darkness would make it more difficult to ascertain a driver’s race. As with previous studies, they also found that black and Latino drivers are more likely to be searched for contraband — even though white drivers are consistently more likely to be found with contraband. They also found that legalization of marijuana in Colorado and Washington has caused fewer drivers to be searched during a stop, but that it did not alter the increased frequency with which black and Latino drivers are searched.
- A 2014 telephone study of urban men found that “participants who reported more police contact also reported more trauma and anxiety symptoms, associations tied to how many stops they reported, the intrusiveness of the encounters, and their perceptions of police fairness,” and that “overall, the burden of police contact in each of these cities falls predominantly on young Black and Latino males.”
- Though blacks make up just under 12 percent of the population in Texas, according to a database kept by the Texas Justice Initiative, they comprise 29 percent of deaths in police custody since 2005, and 27 percent of civilians shot by police officers. Hispanics were underrepresented in both categories.
- A 2013 Justice Department study found that black and Latino drivers are more likely to be searched once they have been pulled over. About 2 percent of white motorists were searched, vs. 6 percent of black drivers and 7 percent of Latinos.
- In 2015, the Charleston Post and Courier looked at incidents in which police stopped motorists but didn’t issue a citation. These are sometimes called “pretext stops,” because they suggest that the officer was profiling the motorist as a possible drug courier or suspected the motorist of other crimes. The paper found that after adjusting for population, blacks in nearly every part of the state were significantly more likely to be the subject of such stops.
- A 2017 study of 4.5 million traffic stops by the 100 largest police departments in North Carolina found that blacks and Latinos were more likely to be searched than whites (5.4 percent, 4.1 percent and 3.1 percent, respectively), even though searches of white motorists were more likely than the others to turn up contraband (whites: 32 percent, blacks: 29 percent, Latinos: 19 percent).
- According to the Justice Department, between 2012 and 2014, black people in Ferguson, Mo., accounted for 85 percent of vehicle stops, 90 percent of citations and 93 percent of arrests, despite comprising 67 percent of the population. Blacks were more than twice as likely as whites to be searched after traffic stops, even though they proved to be 26 percent less likely to be in possession of illegal drugs or weapons. Between 2011 and 2013, blacks also received 95 percent of jaywalking tickets and 94 percent of tickets for “failure to comply.” The Justice Department also found that the racial discrepancy for speeding tickets increased dramatically when researchers looked at tickets based on only an officer’s word vs. tickets based on objective evidence, such as vs. radar. Black people facing similar low-level charges as white people were 68 percent less likely to see those charges dismissed in court. More than 90 percent of the arrest warrants stemming from failure to pay/failure to appear were issued for black people.
- These figures are similar to others throughout St. Louis County. For example, in the town of Florissant, 71 percent of the motorists pulled over by police in 2013 were black. Blacks make up 27 percent of the town at the time (they now make up 33 percent). Blacks were also twice as likely to be searched after a stop, even though white motorists were more likely to be found with contraband.
- A study of “investigatory” traffic stops — that is, stops that did not result in a citation — by police in Kansas City found that blacks were 2.7 times more likely to be pulled over in an investigatory stop, and five times more likely to be searched.
- A 2018 study of traffic stops in Vermont found that black drivers are up to four times more likely than white drivers to be searched during a traffic stop, even though white drivers are 30 to 50 percent more likely to be found with contraband.
- A study of 237,000 traffic stops in Rhode Island in 2016 found that blacks comprised 11 percent of those stopped, significantly higher than their 6.5 percent share of the population at large. The study also found that blacks were more likely to be pulled over during the day, when the race of a driver is more easily ascertained.
- A study of traffic stops in Connecticut in 2013 and 2014 found that blacks made up 13.5 percent of police stops — again, significantly higher than the black population at large (9.9 percent). This study also found that minority drivers were more likely to be pulled over during daylight hours.
- A study of about 260,000 traffic stops in San Diego between 2014 and 2015 found that police more likely to search black and Latino drivers than white drivers, even though they were more likely to find contraband on white drivers.
- A 2016 review of traffic stops in Bloomfield, N.J., found that though the city is 60 percent white and non-Hispanic, 78 percent of ticketed motorists were black or Hispanic. The study also found that police disproportionately stopped drivers around the city’s southern border, which it shares with towns and cities with larger minority populations.
- A study of stop-and-frisk incidents in Boston between 2007 and 2010 that did not result in a citation or arrest found that 63 percent of such stops were of black people. Blacks made up 24 percent of the city’s population. Incredibly, 97.5 percent of these encounters resulted in no arrest or seizure of contraband.
- A 2015 county-level study of police shootings from 2011 to 2014 found “a significant bias in the killing of unarmed black Americans relative to unarmed white Americans, in that the probability of being black, unarmed, and shot by police is about 3.49 times the probability of being white, unarmed, and shot by police on average.” The study also found “no relationship between county-level racial bias in police shootings and crime rates (even race-specific crime rates), meaning that the racial bias observed in police shootings in this data set is not explainable as a response to local-level crime rates.”
- A 2015 statistical analysis of police shootings from 2011 to 2014 found that the racial disparity in police shootings of black people could not be explained by higher crime rates in majority-black communities.
- A 2018 Post investigation found that murders of white people are more likely to be solved than murders of black people. There’s also a strong correlation between areas that are black-majority and low-income and the areas with the lowest clearance rate for homicides.
- Similarly, a study published in June 2018 reviewed every reported homicide between 1976 and 2009 and found that “homicides with white victims are significantly more likely to be ‘cleared’ by the arrest of a suspect than are homicides with minority victims.”
- Another ACLU study, this time on the use of stop-and-frisk in Milwaukee between 2010 and 2017, found that in nearly half of the more than 700,000 such stops, the police failed to demonstrate reasonable suspicion as required by the Constitution. The study found that between pedestrian stops and traffic stops, black people were six times more likely to be stopped and searched than white people, and that less than 1 percent of those searches turned up any contraband. Here again, while black and Latino drivers were more likely to be searched, they were 20 percent less likely to be in possession of any contraband.
- Going back to 2002, data show that when New York City was implementing its stop-and-frisk policy, white people generally made up only about 10 percent of such stops, despite making up about 45 percent of the city. Black and Latino people made up more than 80 percent of the stops, despite making up just over half the city population. Consistently, between 85 and 90 percent of such stops produced no arrest, citation or evidence of criminal activity. Fewer than 1 percent of stops produced a gun, the alleged reason for the policy.
- Between 2012 and 2014, the Los Angeles Police Department received more than 1,350 citizen complaints of racial profiling. The department didn’t uphold a single complaint.
- A 2016 report found that between 2011 and 2015, black drivers in Nashville’s Davidson County were pulled over at a rate of 1,122 stops per 1,000 drivers — so on average, more than once per black driver. Black drivers were also searched at twice the rate of white drivers, though — as in other jurisdictions — searches of white drivers were more likely to turn up contraband.
- A 2017 study of interactions between officers and citizens taken from footage captured by police-officer body cameras found that “officers speak with consistently less respect toward black versus white community members, even after controlling for the race of the officer, the severity of the infraction, the location of the stop, and the outcome of the stop.”
- An NAACP survey of citizen complaints against police officers in North Charleston, S.C., between 2006 and 2016 found that complaints by white citizens were about two-thirds more likely to be sustained than complaints filed by black citizens. When the complainant alleged excessive force, white complaints were sustained seven times more often than black complaints.
- A 2015 study found that though black women are just 6 percent of the female population of San Francisco, they account for 45.5 percent of female arrests.
Misdemeanors, petty crimes and driver’s license suspensions
- A national study of misdemeanor arrests published in 2018 in the Boston University Law Review found that the “black arrest rate is at least twice as high as the white arrest rate for disorderly conduct, drug possession, simple assault, theft, vagrancy, and vandalism. The black arrest rate for prostitution is almost five times higher than the white arrest rate, and the black arrest rate for gambling is almost ten times higher.”
- According to a Justice Department study released in 2013, throughout the United States, black drivers are about 30 percent more likely to be pulled over than white drivers. Black drivers are also more likely to be pulled over for alleged mechanical or equipment problems with their automobiles, or for record checks. White people are actually more likely to get pulled over for noticeable traffic violations such as speeding. Black drivers are more likely to not be told why they were pulled over.
- Between 2001 and 2013, blacks and Latinos made up 51 percent of the population of New York City, but about 80 percent of the misdemeanor arrests and summonses.
- In 2016, the ACLU of Florida released a report that found that black drivers in that state were twice as likely to be pulled over for seat-belt violations as white drivers.
- A 2017 Chicago Tribune investigation found that as the city ramped up its ticketing of bicyclists, black neighborhoods received more than twice as many citations as white and Latino neighborhoods. A year later, black neighborhoods were getting three times more bicycle tickets than white neighborhoods.
- A ProPublica and Florida Times-Union report published in 2017 showed that black residents of Jacksonville are three times more likely to receive a citation for a pedestrian violation than white residents. The report found no correlation between aggressive enforcement of jaywalking laws and where pedestrians were most likely to be struck by cars and killed. Instead, they found that most citations were issued in majority-black neighborhoods. Residents of the three poorest zip codes in the city, for example, were about six times more likely to get pedestrian citation tickets.
- A study of traffic citations issued in the Cleveland area in 2009 found that while blacks represented 38 percent of the driving population, they received 59 percent of police citations. Interestingly, when it comes to readily observable violations such as red-light running or speeding, the numbers were more even — whites actually received a greater percentage of speeding tickets. Black motorists, however, were far more likely to be pulled over and cited for violations that are either much less obvious (they received 61 percent of seat-belt violations) or that aren’t readily observable at all (they received 79 percent of the citations for driving on a suspended license).
- As of 2018, Missouri had been keeping data on traffic stops for 18 years, and for 18 years, the numbers consistently showed that statewide, black people were more likely to be pulled over than white people. The data from 2017 showed the problem actually got worse, with blacks 85 percent more likely to be stopped.
- A 2016 study of traffic violations in several Bay Area counties in California found that black and Latino drivers were significantly more likely to be jailed for an inability to pay petty fines for moving violations. White drivers on average were half as likely to be booked for failure to pay, while black drivers were up to 16 times more likely to be jailed over traffic fines. Another study found that black people make up just 6 percent of the population of San Francisco, but more than 70 percent of those seeking legal aid due to driver’s license suspensions over unpaid traffic fines.
- Studies of traffic stops in Iowa have found that blacks are disproportionately stopped, disproportionately ticketed, searched, and arrested. They were less likely to be let off with a warning.
- A 2015 ACLU study of four cities in New Jersey found that black people were 2.6 to 9.6 times more likely to be arrested than white people for low-level offenses.
The drug war
Black people are consistently arrested, charged and convicted of drug crimes including possession, distribution and conspiracy at far higher rates than white people. This, despite research showing that both races use and sell drugs at about the same rate.
- A 2020 ACLU report found that even in the era of marijuana reform, black people are more than 3½ times more likely to be arrested for marijuana offenses than whites. The report also found that “in every state and in over 95% of counties with more than 30,000 people in which at least 1% of the residents are Black, Black people are arrested at higher rates than white people for marijuana possession.” This, again, despite ample data showing both races use the drug at similar rates.
- As of May 2018, data from New York City showed that black people are arrested for marijuana at eight times the rate of white people. In Manhattan, it’s 15 times as much. Black neighborhoods produce far more arrests than white neighborhoods, despite data showing a similar rate at which residents complain about marijuana use.
- White people have made up about 45 percent of New York residents (about 33 percent if you count only non-Hispanic whites) over the past two decades but have made up fewer than 15 percent of the city’s marijuana arrests.
- A 2014 ACLU survey of SWAT teams across the country found that “dynamic entry” and paramilitary police tactics are disproportionately used against black and Latino people. Most of these raids were on people suspected of low-level drug crimes.
- A 2018 study of SWAT deployments in Maryland found that such deployments were more heavily concentrated in minority neighborhoods, even after adjusting for crime rates. The study also found that more heavily militarized policing in those areas had little effect on public safety, but did erode public trust in police among residents.
- When The Post in 2014 reviewed 400 recent instances of questionable asset forfeiture, a majority of the motorists who had property confiscated by the police were nonwhite.
- A 2013 study by the ACLU found that black people were 3.73 times more likely than white people to be arrested for marijuana possession. And 88 percent of marijuana arrests are for possession. (The disparity is actually lowest in the West and South, and highest in the Northeast and Midwest.) The study found that the racial disparities were also getting larger, not smaller.
- In contrast to the assertion that blacks are more likely to be arrested because they’re more likely to use drugs in public, a 2002 study of narcotics search warrants in the San Diego area — that is, warrants to search for drugs in private homes — found that black and Hispanic residents were “significantly over-represented as targets of narcotics search warrants,” even after adjusting for usage rates. The study also found that “searches of White suspects were more successful in recovering the targeted drug than were searches of either Black or Hispanic suspects.”
- According to figures from the National Registry of Exonerations (NER) black people are about five times more likely to go to prison for drug possession than white people. According to exoneration data, black people are also 12 times more likely to be wrongly convicted of drug crimes.
- When Harris County, Tex., saw a flaw in how drug testing was conducted at its crime lab, officials went back and exonerated dozens of people who had been wrongly convicted for possession — most pleaded guilty, despite their innocence. This is because prosecutors often promise harsher sentences or more charges for defendants who take a case to trial. Black people comprise 20 percent of the Harris County population but made up 62 percent of the wrongful drug convictions.
- Not included in these wrongful conviction figures are cases in which police and narcotics task forces conducted mass arrests of entire black or Latino neighborhoods or towns. Hundreds of people were persuaded to plead guilty to drug charges. By the NER’s estimate, there have been more than 1,800 such “group exonerations” in 15 cities since 1989. Almost all those exonerated were black or Latino.
- Black people comprise about 12.5 percent of drug users but 29 percent of arrests for drug crimes and 33 percent of those incarcerated.
- A 2017 report by the Sarasota Herald-Tribune of Florida’s drug convictions found that while blacks made up 17 percent of the state’s population, they made up 46 percent of felony drug convictions since 2004. Blacks were also three times as likely to get hit with — and made up two-thirds of — the sentencing enhancements for committing drug crimes near a school zone, church, park or public housing. In all, when blacks and whites committed similar drug crimes, blacks on average received a sentence that was two-thirds longer. In some parts of the state, it was two or three times longer.
- An analysis of drug war data by the Vera Institute of Justice published in 2018 found that “the risk of incarceration in the federal system for someone who uses drugs monthly and is black is more than seven times that of his or her white counterpart.”
- A 2017 report of civil-asset-forfeiture seizures in Chicago showed that the vast majority of such actions were in poor, predominantly black neighborhoods. The average value of the property seized was $4,553; the median value was $1,049.
Juries and jury selection
Though the Supreme Court made it illegal for prosecutors to exclude prospective jurors because of race in the 1986 case Batson v. Kentucky, that ruling has largely gone unenforced. The New Yorker reported in 2015 that in the approximately 30 years since the ruling, courts have accepted the flimsiest excuses for striking black jurors and that prosecutors have in turn trained subordinates how to strike black jurors without a judicial rebuke. A 2010 report by the Equal Justice Initiative documented cases in which courts upheld prosecutors’ dismissal of jurors because of allegedly race-neutral factors such as affiliation with a historically black college, a son in an interracial marriage, living in a black-majority neighborhood or that a juror “shucked and jived.”
There are no comprehensive national data on the rate at which prosecutors strike black jurors, but there have been quite a few regional studies.
- A study of criminal cases from 1983 and 1993 found that prosecutors in Philadelphia removed 52 percent of potential black jurors vs. only 23 percent of nonblack jurors.
- Between 2003 and 2012, prosecutors in Caddo Parish, La. — one of the most aggressive death penalty counties in the country — struck 46 percent of prospective black jurors with preemptory challenges, vs. 15 percent of nonblacks.
- Between 1994 and 2002, Jefferson Parish prosecutors struck 55 percent of blacks, but just 16 percent of whites. Although blacks make up 23 percent of the population, 80 percent of criminal trials had no more than two black jurors in a state where it takes only 10 of 12 juror votes to convict.
- A 2011 study from Michigan State University College of Law found that between 1990 and 2010, state prosecutors struck about 53 percent of black people eligible for juries in criminal cases, vs. about 26 percent of white people. The study’s authors concluded that the chance of this occurring in a race-neutral process was less than 1 in 10 trillion. Even after adjusting for excuses given by prosecutors that tend to correlate with race, the 2-to-1 discrepancy remained. The state legislature had previously passed a law stating that death penalty defendants who could demonstrate racial bias in jury selection could have their sentences changed to life without parole. The legislature later repealed that law.
- In June 2018, American Public Media’s “In the Dark” podcast did painstaking research on the 26-year career of Mississippi District Attorney Doug Evans and found that over the course of his career, Evans’s office struck 50 percent of prospective black jurors, vs. just 11 percent of whites.
- As of 2018, in the 32 years since Batson, the U.S Court of Appeals for the 5th Circuit — which includes Mississippi, Texas and Louisiana — has upheld a Batson challenge only twice. That is out of hundreds of challenges.
- A survey of seven death penalty cases in Columbus, Ga., going back to the 1970s found that prosecutors struck 41 of 44 prospective black jurors. Six of the seven trials featured all-white juries.
- In a 2010 study, “mock jurors” were given the same evidence from a fictional robbery case but then shown alternate security camera footage depicting either a light-skinned or dark-skinned suspect. Jurors were more likely to evaluate ambiguous, race-neutral evidence against the dark-skinned suspect as incriminating and more likely to find the dark-skinned suspect guilty.
The death penalty
Prosecutors on aggregate don’t seem to seek the death penalty more for black people than white people, though there are definitely some gaping disparities in a few states and in some counties. Instead, the real racial bias when it comes to the death penalty pertains to the race of the victim. Killers of black people rarely get death sentences. White killers of black people get death sentences even less frequently. And far and away, the type of murder most likely to bring a death sentence is a black man who kills a white woman.
- While white people make up less than half of the country’s murder victims, a 2003 study by Amnesty International found that about 80 percent of the people on death row in the United States killed a white person.
- A 2012 study of Harris County, Tex., cases found that people who killed white victims were 2.5 times more likely to be sentenced to the death penalty than other killers.
- In Delaware, according to a 2012 study, “black defendants who kill white victims are seven times as likely to receive the death penalty as are black defendants who kill black victims. … Moreover, black defendants who kill white victims are more than three times as likely to be sentenced to death as are white defendants who kill white victims.”
- A review of homicide cases in Missouri between 1997 and 2001 found that both geography and race are important factors in whether a defendant receives the death penalty. Black defendants in the large urban areas of St. Louis and Kansas City were less likely to get the death penalty, likely because of the higher rate of black jurors in jury pools. This also meant that white defendants accused of killing white people were more likely to be sentenced to death than black defendants accused of killing black people.
- A study of death penalty rates of black perpetrators/white victims vs. white perpetrators/black victims through 1999 showed similar discrepancies. Interestingly, the study found that blacks are underrepresented on death row in proportion to the proportion of murders they commit. But this is largely because most black murderers kill other black people, and prosecutors are far less likely to seek the death penalty when the victim is black.
- A study of North Carolina murder cases from 1980 through 2007 found that murderers who kill white people are three times more likely to get the death penalty than murderers who kill black people.
- A 2000 study commissioned by then-Florida Gov. Jeb Bush (R) found that the state had, as of that time, never executed a white person for killing a black person.
- A 2004 study of Illinois, Georgia, Maryland and Florida estimated that “one quarter to one third of death sentenced defendants with white victims would have avoided the death penalty if their victims had been black.”
- According to a 2002 study commissioned by then-Gov. Frank O’Bannon (D), Indiana had executed only one person for killing a nonwhite victim, and though 47 percent of homicides in the state involved nonwhite victims, just 16 percent of the state’s death sentences did.
- Studies in Maryland, New Jersey, Virginia, Utah and the federal criminal justice system produced similar results.
- A 2014 study looking at 33 years of data found that after adjusting for variables such as the number of victims and brutality of the crimes, jurors in Washington state were 4.5 times more likely to impose the death penalty on black defendants accused of aggravated murder than on white ones.
- Black people are also more likely to be wrongly convicted of murder when the victim was white. Only about 15 percent of people killed by black people were white, but 31 percent of black exonorees were wrongly convicted of killing white people. More generally, black people convicted of murder are 50 percent more likely to be innocent than white people convicted of murder.
- Innocent black people are also 3.5 times more likely than white people to be wrongly convicted of sexual assault and 12 times more likely to be wrongly convicted of drug crimes. (And remember, data on wrongful convictions is limited in that it can only consider the wrongful convictions we know about.)
- A 2000 study of federal cases found that federal prosecutors were about 50 percent more likely to offer a plea bargain to white murder suspects than black suspects that allowed them to avoid the death penalty.
- In Houston County, Ala., prosecutors struck 80 percent of black people from juries in death penalty cases.
- In Tennessee, blacks make up 17 percent of the population but 44 percent of death row. Between 2007 and 2017, eight of the nine death sentences handed down in the state were to black defendants.
- A 2006 Stanford report found that when a black person was accused of killing a white person, defendants with darker skin and more “stereotypically black” features were twice as likely to receive a death sentence. When the victim was black, there was almost no difference.
- A 2016 study found that in Louisiana, killers of white victims were 14 times more likely to be executed than killers of black victims. Black men who killed white women were 30 times more likely to get the death penalty than black men who killed black men. Those convicted of killing white people were also less likely to have their sentences overturned on appeal, and Louisiana hasn’t executed a white person for killing a black person since 1752.
- Studies in other states have produced similar results: In Oklahoma, killers of white women were 9.5 times more likely to get the death penalty than killers of minority men. In Ohio, they were 6 times more likely, and in Florida, 6.5 times more likely.
Prosecutors, discretion and plea bargaining
Depending on which study you look at, somewhere between 80 and 95 percent of criminal cases are resolved with a plea bargain before ever getting to trial. While most legal observers agree that plea bargaining is widely abused and does little to serve the interests of justice, most also believe believe that if every defendant were to insist on a trial, the system would come grinding to a halt. The bias here comes in when we look at who gets plea bargains, what kinds of deals they’re offered and how many, though innocent, feel pressured to accept.
- A 2015 study by the Women Donors Network found that in three-fifths of the states where prosecutors are elected, there isn’t a single black prosecutor. Overall, the study found that in the United States, 95 percent of elected prosecutors are white, and nearly 80 percent are white men. In nine death penalty states (Colorado, Delaware, Idaho, Montana, Oregon, South Dakota, Tennessee, Washington and Wyoming), all of the elected district attorneys were white in 2015.
- A 2017 study of about 48,000 criminal cases in Wisconsin showed that white defendants were 25 percent more likely than black defendants to have their most serious charge dismissed in a plea bargain. Among defendants facing misdemeanor charges that could carry a sentence of incarceration, whites were 75 percent more likely to have those charges dropped, dismissed or reduced to a charge that did not include such a punishment.
- A 2014 study of Manhattan criminal cases found that black defendants were 19 percent more likely to be offered plea deals that included jail time.
- A 2011 summary of the research on race and plea bargaining published by the Bureau of Justice Assistance concluded that “the majority of research on race and sentencing outcomes shows that blacks are less likely than whites to receive reduced pleas,” that “studies that assess the effects of race find that blacks are less likely to receive a reduced charge compared with whites,” and that “studies have generally found a relationship between race and whether or not a defendant receives a reduced charge.”
- A 2016 review of nearly 474,000 criminal cases in Hampton Roads, Va., found that whites were more likely to get plea deals that resulted in no jail time for drug offenses. While facing charges of drug distribution, 48 percent of whites received plea bargains with no jail time, vs. 22 percent of blacks. Among those with prior criminal records who pleaded guilty to robbery, 36 percent of whites got no jail time, vs. 8 percent of blacks.
- A 2013 study found that after adjusting for numerous other variables, federal prosecutors were almost twice as likely to bring charges carrying mandatory minimums against black defendants as against white defendants accused of similar crimes.
- A 2008 analysis found that black defendants with multiple prior convictions are 28 percent more likely to be charged as “habitual offenders” than white defendants with similar criminal records. The authors conclude that “assessments of dangerousness and culpability are linked to race and ethnicity, even after offense seriousness and prior record are controlled.”
Judges and sentencing
- A 2018 review of academic research found that at nearly all levels of the criminal justice system, “disparities in policing and punishment within the black population along the colour continuum are often comparable to or even exceed disparities between blacks and whites as a whole.” That is, the darker the skin of a black person, the greater the disparity in arrests, charges, conviction rates and sentencing.
- While white, non-Hispanics make up about 60 percent of the U.S. population, they comprise 83 percent of state trial court judges and 80 percent of state appellate court judges.
- A survey of data from the U.S. Sentencing Commission in 2017 found that when black men and white men commit the same crime, black men on average receive a sentence almost 20 percent longer. The research controlled for variables such as age and prior criminal history.
- In Louisiana, which is 33 percent black, a survey sampling half the prisoners serving life without parole for nonviolent offenses found that 91 percent were black. After including violent crimes, it was 73 percent. The figure is above 65 percent in several other states, including Georgia, Illinois, Michigan, Mississippi and South Carolina. Nationally, about half of murders are committed by blacks.
- When it comes to federal gun crimes, black people are more likely to be arrested, more likely to get longer sentences for similar crimes and more likely to get sentencing “enhancements,” according to the U.S. Sentencing Commission.
- A New Jersey study found that 96 percent of defendants subject to an enhanced sentencing under “drug-free school zone” laws were black or Latino.
- A study published in May 2018 found that when a white person and a black person are convicted of similar crimes, Republican-appointed judges sentence the black person to three months longer in prison.
- A 2007 Harvard study found sentencing discrepancies among black people, depending on the darkness of their skin. The study looked at 67,000 first-time felons in Georgia from 1995 to 2002. The average sentence for white men was 2,689 days. The average for black men was 378 days longer. But light-skinned blacks received sentences of about three and a half months longer than whites. Medium-skinned blacks received a sentence of about a year longer. Dark-skinned blacks received sentences of a year and a half longer.
- A 2015 study in the Journal of Legal Studies found that black federal judges are about 10 percentage points more likely to be reversed on appeal than white federal judges. The study adjusted for variables like who appointed the judges, judicial circuits and demographic data.
- A 2015 study of first-time felons found that while black men overall received sentences of 270 days longer than white men for similar crimes, the discrepancy between whites and dark-skinned blacks was 400 days.
- While black youths make up 14 percent of the youth population, a 2018 study found that they make up 53 percent of minors transferred to adult court for offenses against persons, despite the fact that white and black youths make up nearly an equal percentage of youth charged with such offenses.
School suspensions and the school-to-prison pipeline
- A 2011 study of school discipline in Texas found that after isolating race by adjusting for 83 other variables, a black student had a 31 percent greater chance of being disciplined than an identical white or Hispanic student.
- A study of suspensions in Chicago schools from 2013 to 2014 found that black male students were more than five times more likely to be suspended than white and Asian male students. Black female students were seven times more likely than white and Asian female students. After adjusting for academic level and social disadvantages, black males were still five times more likely to be suspended, while the disparity for black females grew to 13 times more likely.
- A Brown Center on Education Policy study released in 2017 found that suspension rates of black students begin to escalate during middle school, and that the racial disparity in suspensions increases dramatically once black students comprise 16 percent or more of a school’s student population.
- Data released in 2016 from the Department of Education found that black students were nearly four times more likely to be suspended than white students.
Prison, incarceration and solitary confinement
Black people are of course overrepresented in the prison population. And, as noted in one particular study below, they’re overrepresented even after you account for variables such as the crime rate among blacks.
- A 2020 study on prison reform in California found that while the state’s policy changes resulted in a significant depopulation of the state’s prisons, “The Black-White incarceration gap and the Latinx-White incarceration gap both increased.”
- Data from the Massachusetts Sentencing Commission released in 2016 found that black people in the state are eight times more likely to be incarcerated than white people. Hispanic people were about five times more likely.
- According to a 2018 study by Pew, 1 in 23 black adults in the United States is on parole or probation, versus 1 in 81 white adults. And while blacks make up 13 percent of the U.S. population, they make up 30 percent of those on probation or parole.
- A 2018 survey found that 63 percent of blacks have had a family member incarcerated, versus 42 percent of whites.
- A 2016 Yale University study of solitary confinement in 48 jurisdictions across 45 states found that black prisoners were more likely to be held in isolation than white prisoners. The discrepancy was even greater among women — black women made up 24 percent of the female prison population but 41 percent of those who had been held in isolation (that figure came from 40 jurisdictions.) A report published in 2018 found that in Texas, black prisoners are much more likely to be sent to solitary confinement, even as Texas prisons are phasing out the practice.
- In surveying the research on the topic, the Sentencing Project estimates that 61 to 80 percent of black overrepresentation in prisons can be explained by higher crime rates in the black population. (Of course, those higher crime rates themselves could be due in part to racial bias.) The rest is probably because of racial bias.
- The Sentencing Project further estimates that mass incarceration combined with felon disenfranchisement laws have led to severe underrepresentation of black Americans in the voting electorate. From the group’s 2016 study: “One in 13 African Americans of voting age is disenfranchised, a rate more than four times greater than that of non-African Americans. Over 7.4 percent of the adult African American population is disenfranchised compared to 1.8 percent of the non-African American population . . . In four states — Florida (21 percent), Kentucky (26 percent), Tennessee (21 percent), and Virginia (22 percent) — more than one in five African Americans is disenfranchised.” This means that black candidates may get less support than they otherwise would, candidates of all races may pay less attention to issues values by black voters, and black interests in general may be underrepresented in electoral politics.
Bail, pretrial detention, commutations and pardons, gangs and other issues
- A March 2020 study by the Justice Lab at Columbia University found that black and Latino parolees were “significantly more likely than white people to be under supervision, to be jailed pending a violation hearing, and to be incarcerated in New York State prisons for a parole violation.” The study found that blacks and Latinos were about 5 times and 1.3 times respectively, as likely as whites to be reincarcerated for “technical violations” of parole.
- A 2019 review of academic literature by the Prison Policy Initiative found that “in large urban areas, Black felony defendants are over 25% more likely than white defendants to be held pretrial" when charged with similar crimes. Nationally, the review found that young black men were about 50 percent more likely to be detained pretrial than white defendants, and on average were given bail amounts that were twice as high.
- A 2018 study of bail practices in New Orleans found that black people are more likely to be required to pay bail, are more likely to have higher bail, are less likely to be able to afford bail and, therefore, are more likely to remain incarcerated before trial.
- A 2018 survey of bail practices in Miami and Philadelphia found that “bail judges are racially biased against black defendants, with substantially more racial bias among both inexperienced and part-time judges. We find suggestive evidence that this racial bias is driven by bail judges relying on inaccurate stereotypes that exaggerate the relative danger of releasing black defendants.”
- According to a 2014 study by the Vera Institute of Justice, black and Latino defendants in New York City were more likely to be detained before trial for comparable crimes. They were also more likely to have charges dismissed. The study didn’t look at this, but that may have been because they were more likely to be wrongly arrested in the first place. The study found that race played a role at nearly every step in the process, from arrest to detention to setting bail to sentencing.
- A 2011 study of bail in five large U.S. counties found that blacks received $7,000 higher bail than whites for violent crimes, $13,000 higher for drug crimes and $10,000 higher for crimes related to public order. These disparities were calculated after adjusting for the seriousness of the crime, criminal history and other variables.
- In 2014, the Urban Institute looked at probation offices in four locations across the country: New York City; Multnomah County, Ore.; Dallas County, Tex.; and Iowa’s Sixth Judicial District. After adjusting for criminal history, seriousness of the crime and other factors, the study found that black people were 18 to 39 percent more likely than white people to have their probation revoked.
- A 2017 study of more than 10,000 cases handled by a public defender’s office in San Francisco found that black and Latino defendants were more likely to be incarcerated while awaiting trial, had to wait longer for their trials to begin, were less likely to see their charges reduced and were more likely to see new misdemeanor charges added.
- An ACLU report issued in 2018 found that in Miami, black people faced “2.2 times greater rates of arrest, 2.3 times greater rates of pretrial detention, 2.5 times greater rates of conviction, and 2.5 times greater rates of incarceration.” Hispanics were “subject to four times greater rates of arrest, 4.5 times greater rates of pretrial detention, 5.5 times greater rates of conviction, and six times greater rates of incarceration.”
- A 2011 investigation of presidential pardons by ProPublica found that white federal prisoners are almost four times as likely to receive a pardon than minority federal prisoners. There’s also some evidence of a racial disparity when it comes to presidential commutations.
- A 2008 study of parole board decisions found that “black offenders spent a longer time in prison awaiting parole compared with white offenders,” and that “the racial and ethnic differences are remained as an influence on parole decision-making after controlling for legal, various individual demographic and community characteristics.”
- About 16 percent of sexual assaults of white women are committed by black men, but half of the exonerations for sexual assault involve cases in which an eyewitness wrongly identified a black man for the rape of a white woman.
- A study of the pardons granted in Mississippi during former governor Haley Barbour’s tenure found that although blacks make up almost two-thirds of the state’s prison population, they make up fewer than a third of the people to whom Barbour granted clemency. (It is worth noting that this isn’t about the severity of the crime — Barbour pardoned at least eight men who killed their wives or girlfriends.)
- A 2016 New York Times report on thousands of parole hearings found that fewer than 1 in 6 black or Latino men was released after his first parole hearing. Among white men, it was 1 in 4.
- A 2016 study from a consortium of civil rights groups found wide racial disparities in the suspension of driver’s licenses of California residents. Some black and Latino communities had suspension rates five times the state average.
- A 2016 report from the Black Alliance for Just Immigration found that black immigrants were significantly more likely to be deported than immigrants of other races.
- A Portland Oregonian report of the city’s gang database found that 64 percent of the list was black, though blacks make up only 6 percent of the city. White supremacist gangs appeared to be significantly under-included.
- Though more than half the people on Mississippi’s gang registry are white, every person prosecuted under the state’s anti-gang law from 2010 to 2017 has been black.
The dissent — contrarian studies on race and the criminal justice system
- An August 2019 study published by the National Academy of Sciences found “no evidence of anti-Black or anti-Hispanic disparities across shootings, and White officers are not more likely to shoot minority civilians than non-White officers. Instead, race-specific crime strongly predicts civilian race. This suggests that increasing diversity among officers by itself is unlikely to reduce racial disparity in police shootings.” The study, which has been widely cited by conservatives and other critics of the notion that policing is plagued by racial bias, has been widely criticized, including in two subsequent letters to the editor where it was published. It was also later corrected. One letter noted that if you adjust for age and remove suicidal adults, “Young unarmed nonsuicidal male victims of [police] fatal use of force are 13 times more likely to be Black than White.” (Here’s a more detailed version of that analysis. And here’s a more detailed critique of the study in general.) The authors also wrote a response to their critics.
- A 2019 study from the Council on Criminal Justice found that between 2000 and 2016 the racial disparity in state prison, jail, parole and probation populations had narrowed. In 2000, black people were 8.3 times more likely to be imprisoned than white people. By 2016, the figure had dropped to 5.1. The study also found that while the number of overall crimes and arrests dropped, that drop was partially offset by an increase in length of prison stays. Similar studies have also found that the racial disparity in prison and jail populations has dropped, though blacks remain significantly more likely to be incarcerated.
- A December 2019 study from Boston University could be seen as both dissenting from the consensus and supporting it. The study found that among fatal police shootings from 2013 and 2017, the race of the individual victim wasn’t as important as how segregated the neighborhood was where the shooting took place. Blacks in mixed neighborhoods were less likely to be shot than blacks in segregated neighborhoods, even after controlling for crime rates. The study suggests racial disparities in fatal shootings might be driven more by police bias about “black areas” and “black neighborhoods” than the race of the individuals who were shot.
- A longitudinal study released in 2018 by the People’s Policy Project suggests that class is a more prominent driver of incarceration than race.
- A 2015 study of parolees found that “violation rates are consistently higher for African American parolees, a result not consistent with a parole board bias against African Americans.” A similar study of Pennsylvania parolees from 1999 to 2003 found high recidivism rates among blacks, again suggesting that parole boards were not discriminating based on race. Neither study accounted for the possibility of racial bias among parole officers — that officers might be more inclined to find technical violations against black parolees than against white ones.
- A 2017 study of school suspensions at the five largest school districts in Wisconsin found that the districts were implementing suspensions in a way that was counterproductive to a positive learning environment but that there was little evidence that the suspensions were driven by racial bias.
- A 2015 analysis of prison data by the Marshall Project found that though there are still wide racial disparities when it comes to mass incarceration, the black-white divide in prison populations is narrowing, particularly among women. Unfortunately, the gap appears to be widening among juveniles.
- A 2002 study of alleged racial profiling in New Jersey found no such bias among New Jersey police officers. Instead, it found that black motorists were more likely to drive above the speed limit. A study of North Carolina drivers came to a similar conclusion. Other researchers have since questioned the methodology of both studies.
- A 2006 study of police stops in Oakland measured stops during the day with those made at night, on the theory that if police officers were profiling, there should be more stops of black and Latino motorists during daytime hours, when race would be more discernible. The study found no significant discrepancy.
- In 2016, the New York Times reported a working paper (i.e., not peer-reviewed) by Harvard’s Roland G. Fryer Jr. found that though there was evidence of racial bias in how and when police generally use force, there was no evidence of bias when it came to police shootings. Fryer later criticized the way his study had been reported, and critics (including me) pointed out several limitations to his study.
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