If the 75,000 seats in Mercedes-Benz Stadium, where the 2019 Super Bowl was played, were filled with equal numbers of whites, blacks and Hispanics, and everyone who would go to prison at some point in their lives were taken away on 56-seat buses, whites would fill almost two buses, Hispanics almost five, and blacks would fill 10 and a half buses.
Those calculations were made using as reference the incarceration rates published by the Office of Justice Statistics, whose data show that a white person is six times less likely to go to prison than a black person, and almost three (2.7) times less likely than a Hispanic.
Why does this disparity happen? How much of it has to do with discrimination? What is being done in the justice system to deal with it?
In their study Have Racial and Ethnic Disparities in Sentencing Declined?, Ryan D. King and Michael T. Light summarize the factors that contribute to racial disparity: racial differences in offenses, apparently impartial laws that have uneven racial effects—such as the stricter anti-drug laws—and unequal treatment by the justice system.
Scrutiny and Arrest
Alfred Blumstein, criminologist, professor emeritus at Carnegie Mellon University and a pioneer in research on racial disparity in U.S. prisons, said in an interview with Univision that the best indicator of who was involved in a crime is arrest statistics; even so, “the arrest statistics can be distorted by differential involvement in the police because police are more present in minority neighborhoods, particularly the African American neighborhoods, so they are more vulnerable to arrest.”
Poorer areas tend to have more crime. Police patrol those areas more often. According to Census data, while 8% of whites live in poverty, the percentage for blacks is 21% and for Hispanics, 18%. That is, blacks and Hispanics are overrepresented in poor neighborhoods.
Charles Pyle, a retired Arizona district judge and founder of the NGO Second Chance Tucson, confirms this as well: “If you look at where people released from the Arizona State Prison come from, you will see that they are centered in a dozen ZIP codes in the state. I think that Hispanic families are overrepresented in the ZIP codes where poverty is high and to which a higher number of people are returning from prison, which means a high prevalence of police scrutiny.”
Crime: the less serious, the more disparity
How can we know if the majority of those who are arrested are also those who commit the most crimes? Blumstein, along with Allen Beck, compared by race the data for violent crimes from two different sources: victims and police.
“In violent crimes, the victim knows the race of the criminal, just as the police also know the race of the person they are arresting,” Blumstein said. “Those are two highly independent sources of information about who commits violent crimes.” For the study, they reviewed the annual data from the National Crime Victimization Survey from the Office of Justice Statistics and compared them with information about arrests for violent crimes.
The result? Blumstein said that they found a “surprising consistency” in the information reported for arrests and by victims. That is, according to their analysis, the proportion by race of people who were arrested for violent crimes is similar to the proportion of people who committed them, as reported by the victims surveyed.
The situation is different for drug or property crimes. “In drug crimes, there is a lot of police discretion,” Blumstein said. “It depends on where the police are patrolling. They may be looking for guns in pockets and find drugs, most often marijuana. So there is a concern because of the differing vulnerability to arrest among all races, especially in drug crimes, especially in public order offenses.”
The situation is different for drug or property crimes. “For drug crimes, there is a lot of police discretion. Much depends on where police patrol, stop, frisk, and search the citizens' pockets for guns, and then they may find drugs, most often marijuana. And those differences [on where police patrol] could account for an important part of the difference in drug arrests. So there is that concern about differential vulnerability to arrest across the races, particularly in drug crimes, in public order crimes,” Blumstein said.
Defense, sentencing and release
Socioeconomic status matters. “Crime is more common among lower socioeconomic status and blacks tend to have lower socioeconomic status than whites, more so than Hispanics, who also have a lower socioeconomic status compared to white,” Blumstein said. Census data show that in 2018, the average income among white households ($70,642 annually) was $19,192 higher than that of Hispanic households and $29,281 higher than that of African-American households.
When Blumstein analyzed the disparity between arrests and prisoners, he found that the biggest difference between races and ethnicities was found in the length of sentences.
Socioeconomic factors also affect the ability to hire a lawyer. Defendants who are unable to afford to do so rely on public defenders, who tend to be overworked. That impacts several phases of the process in court and parole hearings.
“If you're a more wealthy prisoner, you might get a lawyer helping you and making your case to the pro authorities. If you can't afford the lawyer, then you might be more vulnerable to the judgment of the authorities and to their explicit or implicit bias.”
An analysis of the sentencing process in 40 states carried out by Cassia Spohn, a criminologist cited by Ashley Nellis of The Sentencing Project, found that non-legal factors of race and ethnicity do influence sentencing decisions: “[B]lack and Hispanic offenders—particularly those who are young, male, and unemployed—are more likely than their white counterparts to be sentenced to prison than similarly situated white offenders.”
Prejudice. All law enforcement authorities—police, prosecutors, judges or probation authorities—can be influenced by their prejudices. “They're not intending to be discriminatory, but the culture of the world they are living conveys a taste for prejudice and that is tough to fully sort out,” Blumstein says.
The study by King and Light gathers conclusions from several reports that suggest that Hispanics receive harsher sentences than whites, that the disparity is more pronounced among young males and that they have more drug-related cases.
In the U.S. in 2016, there were more criminal trials for immigration offenses than for all other federal crimes combined, according to Transactional Records Access Clearinghouse 2016, as cited in the study by King and Light. It’s part of what is known as “crimmigration,” the increasing criminalization of immigration. “Citizenship may soon match or exceed race and ethnicity as a cause of disparate punishment,” wrote King and Light.
The great majority of Hispanics sentenced in federal courts are non-citizens. Only 26% of Hispanics sentenced in a federal court between 1992 and 2016 were U.S. citizens.
Are Hispanics counted correctly?
“They categorized me as white and not as Hispanic,” said Ángel Sánchez, son of a Cuban father and a Venezuelan mother, who spent 12 years in a Florida prison. When you go into the system, they categorize you. I thought I was white, because you are either black or white. A few years later, I started to see some Latinos whose ID cards said they were Hispanic.” When he asked them to correct his ID, he received threats: “You got a problem with being white?” (The guards were white.) “You want to go to the hole?”
When he got out, Sánchez studied law at the University of Central Florida and wrote his thesis on the impact of the right to vote, including a review of how the state handles categorization. “In Florida correctional institutions, a person cannot be Hispanic and white at the same time, according to the categories they use. Seventy percent of Hispanics are categorized as white, which means that the population of Latinos in prisons must be higher than what is actually being counted.”
On the same topic, Blumstein said that “there's a problem there, because many of the state prison reports have Hispanic as a separate race. So what you have is white non-Hispanic prisoners, black non Hispanic prisoners, and Hispanic prisoners. When you look at arrest information published by the FBI in the crime reports, Hispanic is not created as a separate race. So when you look at white arrests, it's white Hispanics and non Hispanic arrestees.”
The CSG Justice Center published a report on the state of crime and recidivism in the 50 states, saying that they did not include any information about Hispanics because of the inconsistent methodology between states in the collection of ethnographic data, which presents an obstacle to researchers attempting to understand the causes of the disproportionality among agencies.
This is confirmed by an Urban Institute study that reviewed information collected and reported by states about Hispanics and arrests, prison, probation and parole. The result is surprising: only Alaska publishes this information consistently in its reports. Thirteen states do not publish any type of data about Hispanics.
Blumstein says that there are training programs to counteract implicit bias and increase awareness. “For example, one experiment that people did is taking a résumé and sending it to employers, sometimes with a white-sounding name, sometimes with a black-sounding name.” They then evaluate the decision making.
The UCLA School of Law study Implicit Bias in the Courtroom shows that bias-reduction training can have a positive effect. Self-evaluation by judges in California and North Dakota before and after training, along with a three-month follow-up survey, showed that judges had made efforts to reduce the potential impact of their implicit biases.
Other local initiatives are attempting to reduce arrests and facilitate access to minorities and low income communities. A program implemented by Pima County, Arizona that seeks to reduce the population of the county’s jails decided to offer court services in some areas where there were some workers who were not attending court dates. Terrance Cheung, the county’s Director of Justice Reform Initiatives at the moment of this interview, and Wendy Petersen, Assistant County Administrator, said that they decided to facilitate access to the court when they realized that these people had low incomes and couldn’t take off work to go to court.
Since then, they have made access to court easier, with courts opening in the area once a month “so it will be easier for the public to attend hearings and resolve their outstanding issues,” thus reducing arrest warrants.
Ashley Nellis cites as a success story the reforms implemented in New Jersey to reduce disparity, which have achieved a 28% reduction in its jail population since 2000. The greatest impact has been through changes that reestablish judicial discretion in sentencing laws related to drug-free school zones. This change seems to have had an impact on minorities: the number of African-American prisoners went down by 30%, that of Hispanics by 35% and that of whites by 16%.
This work is part of the “Second Chance” project, thanks to the Chan Zuckerberg Initiative.
Coordination: Tamoa Calzadilla and Olivia Liendo.
Research and production assistance: Ana María Carrano, Alexandra Barrera, Albany Urbaez Tahuil and Carolina Rosas.
Photography and photo layout: David Maris.
General production: Emilce Elgarresta and Stephen P. Keppel.
Social media: María Carolina Hurtado, María Dayana Patiño and Liliana Castaño.