Judicial System Bias, Essay Example

Social Effects of Bias in the U.S. Judicial System

The U.S. justice system is often criticized for demonstrating racial and social class bias when dealing with individuals.  Critics typically point to the disproportionate number of Hispanic and African American inmates in the nation’s prisons as evidence of this bias.  Others contend that some laws actually target specific demographic groups in order to impose stiffer penalties on minority groups.  Disparities between penalties for possession of crack versus powdered cocaine are often cited as an example of this.  Whether or not intentional bias exists, there is at least a perception of bias on the part of many Americans.

Notwithstanding demographically imbalanced correctional facilities, the problem of judicial bias has widespread implications throughout society.  It affects social attitudes, community life and recidivism.  This paper will defend the following thesis:  The apparent racial and class bias of the US judicial system negatively impacts the ability of that system to fulfill the missions of deterring crime and providing equitable justice for all citizens.

The History of Judicial Bias

Understanding the current judicial system requires an appreciation for where it started and its evolution over the past 200 years.  Despite America’s commitment to the concept of equality, the courts have a long history of intentional bias.  Until the ratification of the 13^th Amendment in 1865, many states afforded limited or no civil or legal rights to Blacks.  In the years that followed, many courts supported the doctrine of separate-but-equal.  This doctrine was even upheld in the Supreme Court in the case of Plessy v. Ferguson in 1896.  It was not until the Brown v. Board of Education case in 1954 that the tables really began to turn toward full equality for Blacks.

In the early days of the nation, women were also discriminated against by the courts.  According to Tibbs (2009) women were not allowed to own property or vote.  Tibbs quoted historian Carol Berkin as having written; “…a woman was considered “a legal incompetent” in the same category as “children, idiots, and criminals under English law.”  In many early US courts, women were not even allowed to testify as a witness.

The real importance of understanding the history of the US justice system is the recognition of the fact that prejudice and bias are nothing new.  In fact, the predominance of intentional bias is far less today than in the past.  The point is, the presence of systemic bias in the past has contributed to the perceptions that many Americans have regarding the system today.  In the minds of many, the justice system is (where bias is concerned) guilty until proven innocent.

Systemic Bias

The judicial system extends far beyond the courtroom.  Commonly referred to as simply “the system” it includes legislators, law enforcement, parole and probation departments, jails, prisons as well as civil and criminal courts.  Public perceptions of bias within the judicial system target all of these components.  Racial profiling is an example of apparent bias on the part of law enforcement.

Whether or not it will stand up to challenges regarding constitutionality, Arizona’s recently passed “immigration bill” is perceived by many as being racially biased.  It empowers law enforcement officers to demand citizenship documentation if they have “reasonable suspicion” that a given person may not be a legal citizen (SB1070, 2010).  Opponents contend that “reasonable suspicion” can equate to nothing less than racial characteristics and assert that the law is discriminatory.

On the “back end” of the justice system, are jails and prisons.  Holley and Van Vleet (2006) conducted a qualitative action research study regarding the perceptions of racial and class bias by youthful offenders and staff members at juvenile correctional facilities.  The intent of the study was to determine if bias existed and if so, to what degree.  The study found that most youth of color strongly felt that the cops, courts and guards (in essence, the “system”) were biased against them.

The study included a literature review that yielded some interesting facts including the tendency of police to search cars driven by Black or Latino drivers more often than they did White drivers.  The article included several studies regarding the disproportionate numbers of poor and minority inmates in correctional facilities.

The authors concluded that most racial or class bias within institutions were not covert and unintentional.  Conversely, the prison staff spoke openly about racial “considerations” being a part of institutional policy.  Several of the staff even used racially inappropriate language during the focus groups.

The existence of such systemic bias is troubling.  All laws are written for two purposes; First, to establish a particular standard of behavior and second, to impose some punishment as a deterrent for those who might behave otherwise.  If a juvenile offender recognizes that the “deck is stacked against him” because of his race or social status, he may be more likely to develop a contemptuous attitude toward “the system” and commit offences just for spite.

The Effect of Bias on Deterrence

The effect of bias on deterrence is not limited to juvenile offenders.  Byrne, Pattavina, and Taxman (2005) contend that the US justice system tends to be “confounded by procedural and extralegal variables that result in “churning.”  This term is used to describe the “revolving door” phenomenon experienced by many offenders – especially those of color.  The article asserts that the lack of proper resources including legal representation, pre-trial services, and substance abuse treatment are the main contributing factors to churning.  These factors are most significant for people who do not have independent resources.

The article shows how justice procedures affect collective efficacy within certain racial and social groups and ultimately affects future behavior.  The authors call this phenomenon “sub cultural adaptation.”  In essence, a poor person (or person of color) experiences societal “justice” that does not seem very just.  An attitude ensues whereby the individual simply gives up any hope of becoming a productive, law-abiding citizen and ultimately pursues a life of repetitive crime.  The authors’ conclusion is that the bias of the justice system against minorities and the poor actually increases recidivism rather than serving as a deterrent against crime.

Another group of people that tend to experience bias in the court system are welfare recipients.  In her article, Gustafston (2009) asserts that the welfare system and criminal justice systems have become “tightly interwoven.”  The impetus for this enmeshment was welfare fraud.  This problem has been such a contentious issue among the public, that there has come to be a general mistrust of those requiring public assistance.

The zeal of the government to thwart welfare fraud has grown to the level where welfare applicants are almost presumed to be scamming the system from the start.  The author cites California regulations regarding welfare applicants.  These regulations require extensive criminal background checks, the signing of documents acknowledging state laws regarding fraud, and of course thorough examination of financial background files.  While a reasonable person might see the value of the welfare department wanting to validate a claim, it seems a bit disquieting to know that all of this information is subsequently forwarded to the police.

Californians on welfare are presumed to be cheating the system and are required to surrender some of their rights in order to receive help.  Upon “reasonable suspicion” that a welfare recipient might be breaking the rules (like allowing a boyfriend to move in) law enforcement officials are allowed to conduct searches of the house without the usual warrant process.  The author insists that these cases are egregious violations of citizens’ 4^th Amendment rights.  By essentially criminalizing poverty, the justice system actually produces adversarial relationships with US citizens which can result in the very lying and cheating the “system” is trying to prevent.

Subtle Bias Favoring the Wealthy

Social bias in the justice system is not always limited to overt behavior.  There is certainly evidence of bias in the ways laws are enforced, but in many cases the bias exists within the laws themselves.  In his article Lott (1987) argues that the likelihood of conviction is a more significant driver of criminal behavior that the length of sentence or degree of punishment.  Lott’s thesis is based on the business concept of “opportunity cost.”

When a business undertakes a new venture, its leaders will perform a cost-benefit analysis to determine of the expected benefit associated with the new opportunity will be greater than the cost of pursuing it.  If the “opportunity cost” exceeds the value of the anticipated results, then the venture should be avoided.  The lower the opportunity cost in relationship to the value of the endeavor, the more attractive the venture becomes.  This concept is also applicable to other things people do in life – including committing crimes.

The opportunity costs for committing a crime include the probability of getting caught, the probability of getting convicted, and the subsequent punishment.  The usual formula for drafting laws to deter crime is to provide a direct correlation between the severity of the crime and the severity of the punishment.  The probability of conviction is typically not considered.

Lott asserts that the probability of conviction is far more important in deterring crime than the threat of a harsh sentence.  If for example a legislature wanted to “crack down” on speeding, they could do so in one of two ways.  They could increase the penalty for speeding to $100 for each MPH over the posted speed limit, or they could (hypothetically) post radar wielding officers on every street in the nation.  The latter would probably be more successful.

Even with ridiculously high fines for speeding, the likelihood of someone with a good radar detector actually getting caught and convicted would not increase.  Thus most drivers would continue to speed.  If however there were radar guns everywhere, the likelihood of getting caught and convicted for speeding would be a certainty for anyone with a heavy foot.  Even with minimal fines, the opportunity cost of speeding (getting convicted) would outweigh the potential benefit of driving faster.

This same principle applies to the justice system which tends to favor the wealthy.  Even if he did get caught, a wealthy person is far less likely to be convicted for a crime than a poor one.  A wealthy person can afford to hire independent investigators, excellent legal representation, and expert witnesses.  A poor person cannot.  A rich person can usually afford to make bail where he can continue to enjoy his life while his lawyers sort out his legal problems.  A poor person cannot.

In essence, the opportunity cost for committing a crime is far less for a person of means than for a poor person.  Increasing the severity of punishment for a given crime is irrelevant to a person who enjoys a low likelihood of conviction.  This subtle bias in the law and its application favors the rich and reduces the deterrent factor for them.  If on the other hand, every person arrested for a crime was required by law to be represented by whatever public defender was available, wealthy people might think twice about committing a crime, as the opportunity cost (probability of conviction) would skyrocket.

Aside from the deterrent issue, the fact that wealth can “buy” a quick exit from the justice system creates a culture of contempt and mistrust for the system itself by the general public.

Bias Affects Quality of Life

The problem of apparent bias reaches beyond criminal issues.  The other side of the justice system involves civil matters such as fair housing, general discrimination, lawsuits and other matters affecting quality of life.

In her paper presented at the annual conference of the American Sociological Association, Hernandez (2007) begins with a case study involving a poor family living in substandard housing.  The family did not seek legal recourse against the property owner due to their mistrust of the legal system in dealing with the economically disadvantaged.  Instead, they continued to live in the home while it continued to deteriorate.

This story is a shining illustration of how bias in the justice system affects the quality of life for those who feel disenfranchised from the system.  Whether bias is intentional or simply “perceived” by the public, it is counter-productive.  Hernandez explains that communities of individuals who feel they either do not have access to, or would be discriminated against by the justice system tend to “take matters into their own hands.”

Poor neighborhoods for example tend to police themselves.  If an affront is made, retribution ensues.  For people feeling disenfranchised, there is really no other choice besides either fighting back, or as in the case of the family with the dilapidated house, just “taking it.”  The quality of life for these people is directly affected by their perceptions of bias within the justice system.

Summary

The thesis of this paper was that “The apparent racial and class bias of the US judicial system negatively impacts the ability of that system to fulfill the missions of deterring crime and providing equitable justice for all citizens.”

The justice system has come a long way in the past 200 years in providing equity for all US citizens.  Unfortunately it still has some work to do.  The system is supposed to set parameters for social behavior and enforce consequences for people who violate those standards.  The racial and class bias still remaining in the system is often counterproductive in achieving very the mission of the system itself.

Animals have two potential responses when confronted with danger – fight or flight.  As humans we also have these two options, along with one more – reason.  It is our ability to reason with each other that empowers us to remain civil in the midst of conflict.  Our justice system should be the very center of societal reason. Our approach to keeping everyone safe needs to include the dispensing of justice on equal terms for everyone.  If the system discriminates against certain groups of people, those people have no reasonable recourse for their problems other than to take “justice” into their own hands.

References

(Byrne J Pattavina A Taxman F 2005 Racial Disparity and the legitimacy of the criminal justice system: Exploring consequences for deterrence)Byrne, J., Pattavina, A., & Taxman, F. (2005). Racial Disparity and the legitimacy of the criminal justice system: Exploring consequences for deterrence. Journal of Healthcare for the poor and underserved, 16(4), 57-77. Retrieved from http://proquest.umi.com.ezproxy.apollolibrary.com/pqdlink?Ver=1&Exp=05-26-2015&FMT=7&DID=953605741&RQT=309

(Gustafston K 2009 criminalization of poverty)Gustafston, K. (2009). The criminalization of poverty. Journal of Criminal Law and Crominology, 99(3), 643-717. doi:0091-4169/09/9903-0643

(Hernandez D 2007 Living in paradox: Low income families, home and neighborhood challenges and (non) participation in the legal system)Hernandez, D. (2007). Living in paradox: Low income families, home and neighborhood challenges and (non) participation in the legal system. Paper presented at the Annual Conference of the American Sociological Association. Retrieved from http://web.ebscohost.com.ezproxy.apollolibrary.com/ehost/pdfviewer/pdfviewer?vid=3&hid=13&sid=193b2553-dd3c-4c66-81c6-2d951d425181%40sessionmgr13

(Holley L Van Vleet R 2006 Racism and classism in the youth justice system: Perceptions of youth and staff)Holley, L., & Van Vleet, R. (2006). Racism and classism in the youth justice system: Perceptions of youth and staff. Journal of Poverty, 10(1), 45-67. doi:10.1300/J134v10n01-03

(Lott J 1987 Should the wealthy be able to “but justice?”)Lott, J. (1987). Should the wealthy be able to “but justice?”. Journal of Political Economy, 95(6), 1307-1317. doi:10.1086/261517

(SB1070 2010 Senate Bill 1070)SB1070. (2010). Senate Bill 1070. Retrieved from http://www.azleg.gov/legtext/49leg/2r/bills/sb1070s.pdf

(Tibbs B 200915 rights and value of women in collonial America)Tibbs, B. (2009, January 5). The rights and value of women in collonial America. Retrieved from http://colonial-america.suite101.com/article.cfm/how_were_women_treated_in_early_america