African Americans make up about 13 percent of the nation’s population, but constitute 28 percent of all arrests, 40 percent of those incarcerated in jails and prisons, and 42 percent of the population on death row. African Americans are arrested at rates 2.5 times higher than whites; Native Americans were arrested at 1.5 times the rate for whites. African Americans and Latinos are about half as likely to make bail as whites; Latinos are twice as likely and African Americans 87 percent more likely to be subject to pretrial incarceration. African Americans and Latinos are less likely than whites to be sentenced to probation and more likely to be sentenced to prison. Black men are more than six times more likely to be incarcerated than white men. Native Americans are incarcerated at more than twice the rate of whites; Latinos are held under state jurisdiction at 1.7 times the rate for whites. One of every three black boys, and one of six Latino boys, born in 2001 will go to jail or prison if current trends continue.
These racial disparities in our criminal justice system are a legacy of our history of racial injustice. Slavery in America was justified by a narrative of racial hierarchy — the belief that black people were inferior, and therefore needed and actually benefitted from slavery— that survived the formal abolition of slavery. Slavery evolved into convict leasing, whereby African Americans were arrested for “crimes” like loitering and forced to work in white-owned businesses throughout the South. The decades of racial terror lynchings that followed slavery grafted onto the narrative of racial hierarchy a presumption of guilt and dangerousness, as whites defended vigilante violence against black people as necessary to protect their property, families, and Southern way of life from black "criminals."
The presumption of guilt and dangerousness assigned to African Americans has made minority communities particularly vulnerable to the unfair administration of criminal justice. Numerous studies have demonstrated that white subjects have strong unconscious associations between blackness and criminality. Implicit biases have been shown to affect policing—marking young men of color for disparately frequent stops, searches, and violence—and all aspects of the criminal justice system—leading to 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; and higher rates of probation and parole revocation.
So deeply entrenched is the presumption that people of color are dangerous and guilty that a recent study found that Americans’ 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. 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.
The Court declared the death penalty unconstitutional "because it is imposed in an arbitrary and racially biased manner."