The Racial Disparity of Representation in Incarceration

Critical Race Theory (CRT)CRT is a useful theory to use when critically confronting and analyzing matters of race and racism. CRT has many key elements, each that allow a certain feature of racism to be taken apart piece by piece. The main canons this paper will focus on are that racism is ordinary, the idea of interest convergence, the fact that race is a social construct, and that our society’s deep-seated and constant racialization has immensely negative consequences on racial minorities. This section will describe what the principle of CRT is, and how it is involved within plea-bargaining.

Racism is ordinary

CRT posits that racism is very ordinary; it is not the exception, but almost the rule. It happens every day, and is normalized within our culture and our society. Racism is what people in minority groups experience on a daily basis, and so it almost becomes hard to recognize (Delgado & Stefancic, 2001, p. 7).

Our society handles racism more subtly than ever, and one of these more subtle ways appears within the discretionary plea-bargain decisions made by prosecutors. This CRT facet is exemplified within how prosecutors navigate if they offer a defendant a plea-bargain, and what the deal involves. The fact that more often than not, black and other minority defendants get the short end of the stick, combined with the lack of research on why that may be shows that these racist practices have been normalized within our justice system. The word “justice” in criminal justice system is essentially rendered quite moot.

Interest convergence

CRT brings up the idea of interest convergence, which involves a social economy of give and take. Racism can “advance the interests of both White elites as well as working class people.” This results in little to no reason or reward for getting rid of racism (Delgado & Stefancic, 2007, p. 137). Savitsky (2012) discusses the expected costs (high), benefits (debatable), risks (plenty), and uncertainties (many), of choosing trial in not only the defendant’s eyes, but also that of the prosecutor’s.

Minority defendants are implicitly seen as guilty in the eyes of the law, so they are forced to take a deal. That being said, it would equally benefit the prosecutor to offer the defendant a plea-bargain; the prosecutor, too, could save the resources it would take to go to trial to spend somewhere else. Why would you work to get rid of a system that benefits you? Even if that system is corrupt and morally wrong, it essentially works in your favor.

Race is a social construct

There are no biological or genetic components to race. Race is simply the application of a label to a cluster of people grouped by vague physical pseudo-characteristics, abhorrent stereotypes, and the blatant disregard for human uniqueness and scientific fact (Delgado & Stefancic, 2001, pp. 7-8). Race is a social construct; it is set forth when needed, and changed when it no longer benefits the corrupt powers that be. Frenzel & Ball’s (2008) study on the effects of individual characteristics on plea negotiations found that “demographic characteristics were predictors of the decision to negotiate a plea deal.

Savitsky (2012) brings up the common statistic that “one in three African-American males can expect to be incarcerated at some point in their life-time, as opposed to only on e in 17 whites” (p. 132). Race is a social construct, and yet if you are born a black male, you can expect that there is a 33.33% chance that you will be in prison at one point in time in your life. Plea-bargaining now becomes a viable option for someone who expects to go to prison, and really just wants to get it over and done with, instead of risking more time by way losing at trial anyway.

Racialization has consequences

Racialization is when a dominant or majority group in society separates “different minority groups in different ways at different times in response to the majority’s shifting needs,” and this process has its grave consequences (Delgado & Stefancic, 2007, p. 137). Dominant groups in society will label certain racial minority groups in ways that benefit them most, whether that be “shifting needs and purposes…repression…guilt assuagement,” and so on (Delgado & Stefancic, 2007, p. 137).

CRT’s element of racialization having consequences plays out within the idea of implicit racial bias as described earlier. If prosecutors do not have the time or resources to fully investigate or plan how a trial may play out, they may fall back on these implicit racial biases when determining what the offered plea-bargain may entail. The result is that, today, “a young African-American man is seven times more likely to be incarcerated than his Caucasian American counterpart.”

Additionally, current studies show that “practicing defense attorneys display a tendency to recommend plea bargains for African Americans…longer than…[their] Caucasian clients.” When assessing the how their clients might fair in a trial-by-jury, those defense attorneys were more likely to blame the system for their racial bias by determining that their African-American clients would fair best avoiding trial altogether (Edkins & Cutler, 2011).

Critical White Studies

The elements from Gillborn (2005) that this paper will be focusing on are the three ideas used to critically analyze potentially racist policy and practice: priorities, beneficiaries, and outcomes. This section will describe what each element entails, and then will analyze plea-bargaining as a practice through this lens.Priorities. Priorities involve who or what is driving the practice (Gillborn, 2005, p. 13).

As discussed earlier, the sheer amount of prosecutorial discretion, and the corrupt criminal justice system both drive the racist practice of plea-bargaining. Beneficiaries. Beneficiaries involve who wins and who loses as a result of the practice (Gillborn, 2005, p. 13). Simply, white people win and minority people lose when it comes to plea-bargaining. The statistics discussed in the sections above prove that, even under the same circumstances, racist undertones in plea-bargaining practices favor white defendants over defendants of color.

Outcomes

Outcomes involve the effect of the practice (Gillborn, 2005, p. 13). The outcomes of plea-bargaining are clear. Unwavering and climbing racial disparities in representation in our country’s jails and prisons shows the effect of plea-bargaining. Not only are we arresting minorities more, we are charging them more, and giving them worse sentences. If minorities are lucky enough to get a deal, the deal is worse than their white counterparts, and it is often their only viable option.

Conclusion

Plea-bargaining is often an extremely racist practice, and one that breeds and thrives within more subtle racist practices. Minority defendants continuously receive the short end of the stick as a direct result of the color of their skin, and it needs to end. The racial disparity of representation in incarceration is deplorable. The smallest percentage of our population should not make up the highest percentage of our arrests and prisoners. The logic is not there. Implicit racial bias within prosecutorial discretion needs to be addressed. Prison is just another form of slavery, and another way in which we can keep minorities under majority control and it needs to end.