Race and the Criminal Justice System, Resolution on

Resolution Adopted by the CCAR

Resolution on Race and the Criminal Justice System

Resolution adopted by the Board of Trustees of the

Central Conference of American Rabbis, May 1999


Preventing and punishing criminal conduct are among the primary obligations of government at all levels. In recent years, the criminal justice system in the United States has increasingly come under attack for fighting crime at the expense of the civil rights of minorities.

Disparate application of the death penalty has been perhaps the most prominent, and most troubling example of this phenomenon. African-American men make up nearly 40% of all U.S. death row prisoners, though they account for only 6% of people living in the U.S. Nearly half of those executed in the last two decades have been people of color, with African-Americans alone accounting for 38%. Racial injustices exist within the justice system as well; 82% of all executed African Americans were executed for the murder of a Caucasian person, while only 3% of executed Caucasians were convicted of killing people of African, Asian, or Latin decent. Meanwhile, people of color are the victims in more than half of all homicides. Nationwide, a white victim case is over four times more likely to result in a death sentence than was a comparable black victim case.

Racial minorities, especially African-Americans, have complained of abuses by agents of the criminal justice system, and inequities of the criminal justice system. These grievances include police brutality, disparity in incarceration, racial profiling, crack/cocaine sentencing disparity, disparate treatment of minorities in the juvenile justice system, and racial inequalities in application of the death penalty. There is an increasing perception that we have two criminal justice systems, one for affluent whites and one for racial minorities and the poor, separate and unequal.

Police Brutality

Use of force by police and law enforcement agencies have contributed to a widening rift in police/community relations. The brutalizing of Abner Louima while in police custody in New York, and the police shooting of a West African immigrant, Amadou Diallo, in the vestibule of his New York apartment building have raised the public profile of a long-simmering concern. These events, as well as others across the country, sparked massive protests in New York City, Washington D.C., and around the nation, and opened a dialogue between city officials, minority leaders, and law enforcement agents. Several programmatic suggestions have been offered to repair this breach in trust and faith. These suggestions are the first step in addressing concerns of abuses in the criminal justice system.

Racial Profiling

A major contributing factor in the racial disparity in prosecution and punishment is the profiling of racial minorities as drug traffickers. Profiling is a method that officers use in instituting traffic stops and searches. In a significant percentage of these traffic stops and searches of African-Americans, no traffic offenses are cited. In an opinion from 1997, Judge Stephen Reinhardt of the 9th U.S. Circuit Court of Appeals wrote: “It is clear . . . that African-Americans are stopped by the police in disproportionate numbers.” State police statistics show that 73% of cars stopped and searched on I-95 between Baltimore and Delaware from January 1995 to January 1997 were driven by African Americans, despite the fact that only 14% of persons driving on that stretch of road were black. Police found absolutely nothing in 70% of those searches. Civil rights groups have asserted that these traffic searches have been instituted on the basis of race, and lack probable cause, and are in violation of Fourth Amendment rights to security in person and property. They contend that alternate methods must be developed and implemented to ensure that the war on crime does not unjustly focus on race.

Sentencing Disparity

It is becoming clear that at every level of the criminal justice system African-Americans are treated disparately. They are arrested more frequently, convicted more frequently, and punished more harshly than whites. While blacks constitute about 12% of the U.S. population and 13% of drug users, they make up 38% of persons arrested for drug offenses, 59% of those convicted of drug offenses, and 63% of those convicted of drug trafficking. While racial profiling is a major contributor to the arrest and sentencing disparities between blacks and whites, it is not the only factor. Blacks convicted of drug offenses get sentenced to prison at much higher rates than whites convicted of the same offenses. In 1994, 33% of the white convicts and 50% of the black convicts were sentenced to prison. Furthermore, blacks who are sentenced to prison get longer sentences than whites sentenced to prison for the same crimes. For state drug defendants, the average maximum sentence length in 1994 was 51 months for whites and 60 months for blacks.

A disparity in the treatment of users of crack and powder cocaine contributes to the disproportionate incarceration of minorities. In the 1980’s crack dealers turned neighborhoods into drug markets. As heavily armed gangs fought over turf, murder rates shot up. Health officials warned that “crack babies” were going to flood the hospitals. Crack transformed police work, hospitals, parental rights, courts and the racial makeup of American prisons. Federal crack cocaine defendants are disproportionately black. In 1997, 84% of the crack cocaine drug offenders sentenced in federal courts were African Americans, 6.4% of the crack cocaine drug offenders sentenced in federal courts were Caucasian. In the same year 20.3% of powder cocaine drug offenders sentenced were Caucasian and 30.4% of powder cocaine drug offenders sentenced were Black. White Americans account for 52% of all crack cocaine users but make up only less than ten percent of those convicted for crack cocaine offenses.

In the Anti-Drug Abuse Act of 1988, Congress distinguished crack cocaine from both powder cocaine and other drugs by creating a mandatory minimum penalty for simple possession of crack cocaine, the only such federal penalty for a first offense of simple possession of a controlled substance. Under this law, possession and trafficking of more than five grams of crack cocaine triggers a minimum sentence of five years in prison, and possession of more than five hundred grams of powder cocaine triggers a minimum sentence of five years in prison. Simple possession of any quantity of any other illegal substances by a first-time offender — including powder cocaine — is a misdemeanor offense punishable by a maximum of one year in prison.

In April 1997, the Supreme Court refused to hear a claim that the legal distinction between powder cocaine and crack cocaine is discriminatory because crack defendants are predominantly African-American. In addition, Congress has failed to reform the sentencing disparity, despite the U.S. Sentencing Commission’s recommendation to remove the disparity and its later recommendation to reduce the disparity.

Civil rights leaders, religious leaders and many former supporters of mandatory minimum sentences have blamed these federal — as well as state — sentencing laws, including Michigan’s “650-lifer” law, which had mandated a life sentence without parole for anyone convicted of possessing, delivering, or intending to deliver over 650 grams of cocaine or heroin, for devastating minority communities — where one out of four young Black men are in prison, parole or probation. Many federal judges and law enforcement groups are also opposed to mandatory sentences, appealing for new approaches to dealing with the drug problem.

Voting Disenfranchisement

Our nation continues to permit an entire category of citizens — former felons — to be cut off from the democratic process. Approximately 1.4 million black men, 13% of Black males in the U.S., have had their right to vote taken away because of felony convictions, according to a reports by Human Rights Watch and The Sentencing Project. Blacks represent more than one-third (36%) of the approximately 3.9 million people nationwide who are temporarily or permanently unable to vote because of felony convictions. The rate of Black voter disenfranchisement is seven times the national average.

Of the 3.9 million felons and ex-felons that have lost the right to vote, almost three-quarters are not in prison. One million were sentenced to probation only. Almost 1.4 million have already completed their sentences, 1.4 million are on probation or parole, and over a million are in prison. (For comparison, a congressional district typically has between 545,000 and 600,000 persons.) (These statistics overlap in some areas, and do not appear to total 3.9 million)

Every state except four — Maine, Massachusetts, Utah, and Vermont — denies prisoners the right to vote. Thirty-two states prohibit felons on probation and/or parole from voting. Fourteen states and the District of Columbia take away voting rights only while felons are in prison. In 14 other states felony convictions typically lead to lifetime disenfranchisement. Former felons may regain their voting rights in lifetime disenfranchisement states, usually by a governor’s order or by an action of the parole or pardons board, but this rarely happens.

Juvenile Justice

Disproportionate Minority Confinement (DMC) is defined in the Juvenile Justice and Delinquency Prevention Act as existing when “the proportion of juveniles detained or confined in secure detention facilities, secure correction facilities, jails, and lockups who are members of minority groups exceeds the proportion such groups represent in the general population.”

In the past ten years, a growing body of evidence has documented the phenomenon of disproportionate minority confinement (DMC) at all stages of the criminal justice system. Although African-American youth age 10-17 constitute only 15% of the U.S. population, they account for 26% of juvenile arrests, 32% of delinquency referrals to juvenile court, 41% of juveniles detained in delinquency cases, 46% of juveniles in secure corrections facilities, and 52% of juveniles transferred to adult criminal court after judicial hearings. An African-American youth is twice as likely to be arrested and seven times as more likely to be placed in a detention facility than a Caucasian youth. It would be easy to simply attribute this large discrepancy to the fact that young people of different racial groups commit different types of crimes. However, data shows this is not the case, with significantly higher rates of confinement for African-American juveniles for every offense group.

Further, African-American males are six times more likely to be admitted to state juvenile facilities for crimes against persons than their Caucasian counterparts, four times more likely for property crimes, and 30 times more likely to be detained in state juvenile facilities for drug offenses than white males.

THEREFORE, the Central Conference of American Rabbis resolves to:

A. Police Brutality

Speak out against police brutality, and support action to improve police community relations such as:

  • Increasing outreach to, and recruitment of law enforcement officers from, minority communities, so that the police will look more like the communities they serve and;
  • Supporting programs that encourage police officers to develop close ties to the neighborhoods they serve;
  • Appealing to Congressional leaders of both parties to immediately follow through and fund the provision of the Crime Control Act of 1994 that provides funding for the accurate collection of comprehensive national data on the use of excessive force by police. This would also include data on the number of people killed or injured by police shootings or other types of force; and
  • Encouraging states to work together to develop a uniform set of procedures and a process for the establishment of independent Police Civilian Review Boards that have both subpoena and investigatory powers.

    B. Racial Profiling

  • Support legislation that prohibits discriminatory profiling, and condemn law enforcement profiling and the detrimental effects that it causes in society; and
  • Express outrage that, all too often, law enforcement personnel single out people of color for discriminatory scrutiny and support legislation requiring law enforcement agencies to provide accurate and timely data on such practices by law enforcement officials.

    C. Sentencing Disparity

    Support legislation that would:

  • Repeal state and federal laws that require mandatory incarceration of first-time drug offenders, and replace mandatory sentences with discretion in the sentencing court, and;
  • End the sentencing disparity between crack-cocaine and powder cocaine.

    D. Juvenile Justice

  • Call on Government officials, and especially correctional systems, not to determine sentencing of juvenile offenders on the basis of their race or ethnicity.
  • Call on correctional systems to abide by existing law that requires them to comply with the Disproportionate Minority Confinement (DMC) mandate or suffer the 25% reduction of funds provided by the office of Juvenile Justice Delinquency Prevention. Specifically, the DMC mandate requires states to (1) identify the extent to which DMC exists in their states; (2) assess the reasons for DMC if it exists; and (3) develop intervention strategies to address the reasons for DMC. The DMC mandate neither requires or suggests the use of numerical quotas or arrests or release of any juvenile from custody based on race.