Presumption of Guilt

Presumption of Guilt

A presumption of guilt and dangerousness makes people of color vulnerable to unjustified violence, wrongful convictions, and unfair treatment.

EJI director Bryan Stevenson discusses how the presumption that people of color are guilty and dangerous is a legacy of our history.

The repeated shootings of unarmed Black men by police and vigilantes and the widespread mistreatment of people of color in our criminal justice system are a manifestation of deep-seated racial bias that has been nurtured in the U.S. for centuries.

People of color have to cope with being watched and followed in stores and neighborhoods that are not their own. Being suspected, feared, and monitored at all times is frustrating and exhausting. In the criminal justice system, it is terrifying. When police, prosecutors, or judges presume someone’s guilt, lives are destroyed and horrific injustices take place.

When tragedies happen and people of color are wrongly and mistakenly killed, those who bear the burden of this legacy are appropriately outraged and there are protests and calls for accountability. Without reckoning with our history of racial injustice and violence we will continue to be haunted by its ugly and painful legacy. We cannot ignore this history any longer.

The Legacy of Slavery

The false racial narrative that justified slavery was never addressed and continues to haunt America.

The myth of racial hierarchy—the belief that Black people are inferior—was created to justify the enslavement of Black people. Enslavement could not be sustained as legitimate without a false narrative about Black people being less human or worthy of freedom that would make it justifiable.

That racist belief survived the formal abolition of slavery and evolved to include the belief that Black people are dangerous criminals. This was reinforced during the decades of racial terror lynchings that followed enslavement when white people defended the torture and spectacle murder of Black people as necessary to protect their property, families, and way of life from Black “criminals.”

Criminalizing Black people was the basis for convict leasing, a system created to provide cheap labor after slavery was abolished. Southern lawmakers passed “Black Codes” so that African Americans could be arrested for “crimes” like loitering and forced to work in white-owned businesses and plantations throughout the South.

States passed laws to segregate Black people, banning them from sharing public accommodations, barring them from interracial relationships, and humiliating them by restricting them to marginalized spaces.

To this day, we have not adequately confronted the legacy of racial injustice and instead have let it evolve into the widespread presumption that people of color are suspicious, dangerous, and criminal—that young Black men are to be feared, monitored, and even hunted. 

New language has emerged for the non-crimes that have replaced the Black Codes—driving while Black, napping while Black, jogging while Black. All reflect incidents in which African Americans were mistreated, assaulted, or arrested for conduct that would be ignored if they were white.

Race and Mass Incarceration

The presumption of guilt assigned to people of color targets them for unfair treatment in the criminal justice system.

Black men are nearly six times more likely to be incarcerated than white men; Latino men are nearly three times as likely. Native Americans are incarcerated at more than twice the rate of white Americans.1 Jennifer Bronson, Ph.D., and E. Ann Carson, Ph.D., “Prisoners in 2017,” Bureau of Justice Statistics (April 2019).

In 2001, the Bureau of Justice Statistics projected that one of every three Black boys and one of six Latino boys born in 2001 will go to jail or prison under current trends. Black defendants are 22 times more likely to receive the death penalty for crimes whose victims are white, rather than Black—a type of bias the Supreme Court has declared “inevitable.”2 McCleskey v. Kemp, 481 U.S. 279, 312 (1987).

Numerous studies have demonstrated that as a result of a history of racial inequality, people have strong unconscious associations between Blackness and criminality.3 For example, Jennifer L. Eberhardt et al, “Seeing Black: Race, Crime, and Visual Processing,” Journal of Personality and Social Psychology (2004). Implicit biases have been shown to affect policing and all aspects of the criminal justice system, leading to:

  • Disproportionately high rates of police stops, searches, and violence towards young men of color
  • Higher rates of childhood suspension, expulsion, and arrest at school
  • Disproportionate contact with the juvenile justice system
  • Harsher charging decisions and disadvantaged plea negotiations
  • A greater likelihood of being denied bail and diversion
  • An increased risk of wrongful convictions and unfair sentences
  • Higher rates of probation and parole revocation.

The presumption that people of color are dangerous and guilty is so deeply entrenched that studies have found that support for harsh criminal justice policies correlated with how many African Americans they believed were in prison: the more Black people they believed were incarcerated, the more they supported aggressive policing tactics and excessively punitive sentencing laws.4 Rebecca C. Hetey & Jennifer L. Eberhardt, “Racial Disparities in Incarceration Increase Acceptance of Punitive Policies,” Psychological Science (Aug. 5, 2014).

This bias has contributed to the U.S. prison population increasing from 250,000 in the early 1970s to over 2.2 million today. America has the highest rate of incarceration in the world and communities of color are disproportionately impacted.

Our nation’s history of racial injustice has polluted the environment in which the criminal justice administration is administered. The smog is suffocating and toxic. Understanding how today’s criminal justice crisis is rooted in our country’s history of racial injustice requires truthfully facing that history and its legacy.

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