Is the US criminal justice system racist? Views on the topic differ. Some think that the answer is obviously yes (here and here). Others think that the answer is, instead, a resounding no (here). Still others think that the question is besides the point (here). A recent survey indicates that most blacks report having experienced racism in the justice system, and so do other minority groups. Whites, on the other hand, report having had different experiences. But a study on police-community relations showed that citizens’ opinions about the police vary along many factors, not just race.
In this course, we will explore different sides as fair-mindedly as possible. To be sure, the criminal justice system is—in some ways and to some extent—unquestionably racist in the broadest sense of the term ‘racist’. The goal of the course, however, is to look at the available evidence carefully, determine the various meanings given to the term ‘racist’ and examine how and to what extent the system is racist.
We will begin with some preliminary matters. We will discuss how to navigate information (week 1) as well as the criminal justice system (week 2). We will then take as our starting point the racial disparities in the justice system—i.e. the fact that certain races are disproportionally represented in the criminal justice system compared to their share in the population (week 3 and week 4).
Most of the course will attempt to understand why these racial disparities exist and whether racism is one of the driving forces of these disparities.
To this end, we will first look at the extensive literature on racial biases and discrimination (week 5), consider three case studies—i.e. stop and frisk (week 6); police shootings (week 7); and sentencing (week 8)—and finally ask whether racial biases and discrimination explain racial disparities (week 9). After Spring Break (week 10), we will turn to political decisions, in particular, how they affected the War on Drugs (week 11 and 12). We will then look at other explanations for racial disparities, namely disparities in crime (week 13) and structural racism (week 14).
Finally, given our investigation during the semester, we will have a comprehensive reasoned conversation about the question of the course (week 15) and draw some morals together (week 16).
Week 1: Navigating information
Jan 29 and Jan 31
How does one answer the question of the course? There is a sea of information out there — books, academic journals, newspapers, statistics, videos, blogs, etc. The problem is to navigate this information critically. We will examine different sources of information, both qualitative and quantitative. Are statistics helpful? What about Youtube videos? Can we trust newspaper articles? What about academic papers? We will devise strategies to gauge the relevance, reliability and political leanings of our sources.
Assignment #1 — DUE Feb 5
(a) Read one of the newspaper articles under Media and summarize its main message in a few sentences.
(b) Assess the political leaning of the newspaper article you summarized. Is it more conservative or progressive? Explain.
(c) Find another newspaper article on race and criminal justice with a different political leaning and summarize its main message in a few sentences.
(d) Look for statistics on race and criminal justice,describe the statistics and report where you found them. Explain why you think they can help us answer the question of the course.
(e) Find a video, blog post, Instagram post, Tweet or some other on-line material and summarize its content in a few sentences. Explain why you think this source can help us answer the question of the course.
(f) Assess the reliability of the sources you’ve gathered — i.e. two newspaper articles; one set of statistics; one video/blog/Instagram/Tweet/etc.
Week 2: The criminal justice system
Feb 5 and Feb 7
We should become clear on the terminology. In particular, we should ask, (1) what is the criminal justice system? and (2), what does it mean to say that the criminal justice system is racist?
The first question is the easiest of the two. The criminal justice system operates at different levels by means of police investigations; searches; arrests; charging decisions; indictments; pleas; trials; convictions; sentences; prisons; parole decisions. The Bureau of Justice Statistics has created a helpful flowchart that illustrates the complex structure of decision points within the federal justice system. The Office of the District Attorney for NY County has also created a similar flowchart.
The second question is more difficult to answer. We will spend significant parts of the course—besides engaging in substantive questions about whether the justice system is racist—dealing with definitional questions about racism. For the time being, this article and this video should suffice.
Assignment #2 — DUE Feb 14
(a) Think about the experience of someone with the US criminal justice system. It could be someone you read about in the news, someone you know, or even yourself. Describe this experience in as much detail as you can.
(b) Connect this experience with the different stages of the justice system as identified in the flowchart by the Bureau of Justice Statistics.
(c) Was there anything in this experience that you regard to be just, respectful and educational? By contrast, was there anything that you regard to be unjust, disrespectful or clearly racist? Explain.
(d) If you could change some components of the justice system, what would you change? Please be as precise as possible and connect your story with specific components of the justice system which you think need to be changed. Motivate your conclusions.
Week 3 and 4: Racial disparities
Feb 14 and Feb 21 — NO CLASSES on Feb 12 and Feb 19
As discussed last week, the justice system consists of different decision points, such as arrests; charging decisions; indictments; convictions; and so on. Despite the wealth of conflicting information out there, one fact is clear and uncontested. That is, the criminal justice system exhibits marked racial disparities at every decision point. There are racial disparities when it comes to incarceration (according to reports by Bureau of Justice Statistics in 2013, 2014 and 2015, and here), convictions (here), trials (here), encounters between police and the public (here).
Assignment #3 — DUE Feb 26
A friend of yours knows nothing about the US criminal justice system and does not care much. You are on a mission to convince him or her that racial disparities are so astounding and cannot be ignored.
Your thesis will be that there are racial disparities in the US criminal justice system and your evidence will consist of statistics. Collect as many statistics as you’d like but make sure that, first, the statistics you cite are relevant, and second, your sources for the statistics are trustworthy.
For some guidance and inspiration, have a look at p. 21 (‘A Research Design to Identify and Assess Racial Disparity’) of this report by the Sentencing Project.
Make your case as vividly as you can. Feel free to discuss racial disparities from the angle that you think will be most effective in persuading your friend. For example, you may focus on racial disparities across many races besides whites and blacks; you may discuss racial disparities at different decision points in the system and for different types of crimes; you may discuss how racial disparities have evolved historically; etc.
There is no fixed format for this assignment. You may write a short essay (2-3 pages), or create a video, an info-graphics, a powerpoint presentation or whatever finished product suits your fancy. Be creative!
Working in groups of 2-3 people is encouraged. Many minds who cooperate with one another often think better than one mind in isolation.
Week 5: Racial biases
Feb 26 and Feb 28
If racial disparities in the US criminal justice system exist, the question is, why do they exist? One approach is to look at the beliefs and behaviors of the individuals in the system, such as police officers, judges, jurors and legislators. The idea here is that the racism of the system is a reflection of the racism of the individuals.
The literature on implicit racial biases is of service here. Here is a 2015 summary of some studies on implicit biases by economist Sendhil Mullainathan for the NY Times. For a broader introduction, it is worth checking out the Harvard Project Implicit which contains different tests of implicit bias, along with the 2013 book Blindspot by psychologists Mahzarin Banaji & Anthony Greenwald (see, in particular, Chapter 1 and Chapter 3). A video summarizes some of the findings and NPR offers a discussion of the book.
Still, when it comes to the criminal justice system, many will wonder, do people’s implicit biases regarding race carry over to police officers, jurors, judges and legislators? The academic literature has addressed this question. The Sentencing Project has compiled a report (pp. 16-17) that reviews the research about racial biases by police officers, jurors, judges, attorneys and legislators. In addition, here is a 2014 review of the literature by the Kirwan Institute (pp. 23-26) and here is the 2017 version (pp. 19-25).
Things are complicated, however. One issue worth mentioning is that research on racial biases—in particular, research that claims there is a connection between racial biases and racially discriminatory behavior—has been challenged (see, for example, here and here).
Though related, keep in mind the difference between implicit biases (unconscious cognitive mechanisms), prejudices (beliefs and emotional attitudes) and discrimination (a pattern of behavior; see also the definition by Equal Employment Opportunity Commission and Title VII). For a survey of recent research in social psychology on the topic, have a look here.
Assignment #4 — DUE March 5
(a) Take one of the racial bias tests on Harvard Project Implicit and report the results as precisely as you can. Were you surprised of how you did? Explain.
(b) Read one of the academic papers cited in the 2014 report (pp. 23-26) or the 2017 report (pp. 19-25) by the Kirwan Institute on racial biases in the criminal justice system. Summarize the main message of the paper. In particular, answer these two questions. One: what is the thesis of the paper? Two: what is the evidence the paper provides?
(c*) Read one of the academic papers cited in the report (pp. 16-17) by the Sentencing Project. Do the same as above. [*Bonus question]
Week 6: Stop and frisk
March 5 and March 7
We shall look more closely at police officers and discuss two cases studies. The first case study is stop and frisk. The 2013 federal case Floyd v. City of New York is a good starting point. Federal judge Shira Scheindlin for the Southern District of New York ruled that the NYPD violated the US Constitution — 4th and 14th Amendments — by conducting stops and frisks that were racially discriminatory.
The Floyd decision relied on a testimony by professor Jeff Fagan, a criminologist and law professor at Columbia University. Fagan’s testimony, in turn, relied on methods of statistical inference (see academic paper), and these methods were challenged by other experts. The New Yorker has a piece summarizing the technical debate.
The debate among experts in the Floyd case shows that statistics do not speak for themselves. Here is another example. The findings of the Open Policing Project at Stanford University show that police stops are driven by racial biases, but these findings can be reached only by applying statistical models to the row data. On the other hand, economist Nicola Persico and colleagues claim (here and here) that the statistics about police stops—when properly interpreted—do not show racial bias.
Assignment #5 — DUE March 12
(a) What is judge Scheindlin’s evidence for concluding that the stop and frisk program by the NYPD was racially discriminatory? In particular, pay attention to the distinction between 4th Amendment and 14th Amendment questions.
(b) What is the crux of the debate between statisticians as explained in the New Yorker piece? Be as precise as possible, Also, which side, if any, do you take in this debate? Explain why.
(c) Look at the findings of the Open Policing Project at Stanford University. Explain, as precisely as you can, how the researcher showed discrimination by the police. What is the distinction between the outcome test and the threshold test? Which test do the researchers think is more effective at detecting discrimination? Why?
(d) Are you convinced? Or there something you think it’s missing from the study? Please explain your position–i.e. why you are convinced or why you think there is somethign missing.
(e*) Find other studies that reach a different conclusion than the Stanford study (e.g. here). Summarize these studies as clearly as you can, and also, describe the nature of the disagreement with the Stanford study. [*Bonus question]
Week 7: Police shootings
March 12 and March 14
Let’s consider our second case study: police killings. The UK newspaper The Guardian keeps a database of all police shootings in the US. The Washington Post did the same for 2016 and 2017. There are also many videos on-line with police shootings (e.g. here and here and here). The row data (see e.g. here and here) show that police officers in the United States kill blacks at significantly higher rates than whites.
But the row data—by themselves—do not demonstrate police bias. In fact, a 2014 review of existing studies—mostly by psychologist Joshua Correll and colleagues—concluded that police officers do not show racial bias in killing black suspects. These studies consist of computer simulations of shooting scenarios (try it here). The seminal study is summarized in this article. A more recent study found that police officers are racially biased, but also that this bias does not manifest itself in the decision to kill.
Interestingly, examining empirical data suggests the same conclusion. An unpublished study by Harvard economist Ronald Fryer showed that police officers are actually less likely to kill blacks than whites. A new 2016 study, based on a computer simulation, reached a similar conclusion. These studies, to be sure, have received sharp criticisms by other researchers: here, here, here, here, here.
The matter is further complicated by psychological factors. Officers may develop racial biases not because of racism, prejudice or hatred, but because they follow cognitive shortcuts to make decisions under stress. Former FBI director James Comey in a 2015 speech makes this point. It is also important to place statistics about police shootings in a wider context (see this paper).
For more information about police training to combat racial biases, see here.
Assignment #6 — DUE March 19
(a) Read Fryer’s study or the study based on computer simulation. You are not expected to understand all the technical details, but at least, carefully read the abstract and as much of the paper as you can. Summarize the main points of the paper. In particular, summarize the thesis and the evidence provided.
(b) Read carefully one criticism of the paper you have summarized (here, here, here, here or here). Summarize the main points of the criticism. In particular, summarize the thesis and the evidence provided.
(c) What is your position? Do you agree with the paper you have summarized or with the criticism? Carefully motivate your position.
(d*) Find another academic paper about racism in police shootings. Summarize the main points of the paper you have found. [*Bonus question]
Week 8: Sentencing
March 19 and March 21
The research about racial biases in sentencing decisions is extensive. The 2010 report and 2017 report by the US Sentencing Commission offer a comprehensive review of the literature. The Sentencing Project also compiled in 2005 a more accessible review of the literature. Both documents tell a similar story. Racial disparities in sentencing decisions exist, even after controlling for other variables.
Now, are racial biases and discrimination the cause of these disparities? This is a difficult question. Some studies (here and here) found that judges exhibit racial biases, and yet, there is no clear evidence that their biases affect their decisions at sentencing. Consistent with this, a recent study claims that a significant part of the racial disparities in sentencing decisions can be explained by racial disparities in prosecutorial charging decisions early on in the judicial process.
So,e of these studies contained advanced statistics, using notions such as odds ratios in logistic regression, quantile regression. There is no need to master these notions, but it is good idea to have a sense of they mean.
Week 9: Explaining racial disparities
March 26 and March 28
Our discussion of racial biases is not yet complete. We have not discussed biases of prosecutors (e.g. here), attorneys and jurors (e.g. here). The literature is vast and we cannot cover it all in a limited time. We should move on to another topic.
We are looking for an explanation of the racial disparities we see in the US criminal justice system. Let’s grant for the sake of argument that many individuals in the criminal justice system do have racial biases. The question is, how much of the existing racial disparities in the justice system can be accounted for by the racial biases of the individuals in the system?
Finding an answer to this question is tricky. For one, conservative blogger Philippe Lemoine did some calculations in a blog post and concluded that racial biases don’t explain much. (For more on the same topic, see here.) On the other hand, the liberal newspaper HuffPost in a 2016 piece has arrived at a different conclusion.
Arguably, if racial racial biases exist, they should account for at least some of the racial disparities that we see in the system but probably not for all of them. On this score, a report (pp. 5-10) by the Sentencing Project argues that racial biases are one among other factors driving racial disparities. We shall examine the other factors in the following weeks.
Week 10: Spring break
Apr 2 and Apr 4 — NO CLASSES
Week 11: The War on Drugs
Apr 9 and Apr 11
Legislative decisions form another putative driver of racial disparities in the justice system. As a case study, we will examine disparities in minimum sentences for crack v. powder cocaine within the larger context of the War on Drugs.
Some argue that the War on Drugs was an instrument used by the political elites, both Republicans and Democrats, to oppresses minorities and gain political consensus from working class white voters. The oppression took place not by means of slavery or Jim Crow, as happened in the past, but rather, through legislative decisions that would criminalize certain behaviors rather than others.
Michelle Alexander in her bestselling book makes this point. Here is a video of Alexander summarizing her main argument. The documentary The 13th makes a similar point. Here is an interview of the filmmaker Ava DuVernay with NPR.
Week 12: The War on Drugs (cont’d)
Apr 16 and Apr 18
James Forman Jr at Yale Law School in his 2017 book and in an academic paper offers a different perspective. He agrees with Alexander that legislative decisions in the War on Drugs did create the racial disparities we see today, but he also believes that these decisions were not a systematic effort to oppress minorities. In fact, Forman’s research shows that these decisions were prompted by political leaders who had in mind the interests of the black community. Further, Forman points out that racial disparities depend to a significant extent on disparities in incarceration rates for violent crimes, not for drug crimes.
Another legal scholar, John Pfaff, at Fordham Law School argued in his 2017 book that what drove mass incarceration was not the War on Drugs but prosecutorial discretion (see, also, a review of the book here and here).
Week 13: Crime and victimization disparities
Apr 23 and 25
Some commentators believes that racial disparities in the US criminal justice system are a function of crime and victimization disparities. That is, blacks are disproportionately represented in the criminal justice system because they commit, and are victim of, a disproportionate number of crimes.
For example, conservative commentator Heather MacDonald at the Manhattan Institute in NYC has articulated this argument in great detail (here, here and here). Conservative think tank Prager University made a video arguing that racial disparities are a function of crime disparities. But not only conservatives emphasize this point. For example, criminologist Peter Moskos from John Jay College of CUNY, in conversation with economist Glenn Loury from Brown University, recognizes the different rates of victimization and criminality in a video, and so does Paul Butler in Chapter 4 of his 2017 book. While no one denies that blacks disproportionally contribute to crime, different commentators interpret this fact in different ways.
Week 14: Structural racism
Apr 30 and May 02
Let’s recapitulate what we have done so far. We started out with racial disparities, the fact that blacks are disproportionately represented in the criminal justice system. We examined three possible causes:
(1) racial biases, for example, biases by police officers in stops and frisks and police shooting, or biases by judges in sentencing decisions;
(2) legislative decisions in the War on Drugs; and
(3) crime and victimization disparities.
Only answer (1) suggests racism, and partly does answer (2), depending on whether the motivations of legislative decisions were racially motivated or not. Answer (3), instead, seems to neutralize the charge of racism.
If you notice, we only looked at isolated variables, such as biases of individuals or groups of individual or legislative decisions. But there is another approach, not individualistic but structural. According to the structural approach, racism is not the result of racist beliefs and behaviors by individuals. Rather, racism is a structure that has political, economic and social roots. We cannot understand racism unless we investigate its political, economic and social roots.
Here are some examples. The podcast series Seeing White explains the structural approach to the study of racism. The paper by sociologist Bonilla-Silva defends a structural definition of racism. This course explains extensively the ideas of racisms and white privilege.
Structural analyses—though not necessarily endorsing the idea of structural racism—are offered, for example, by philosopher Elizabeth Anderson in her book on the imperative of integration and economist Glenn Loury in his book on the anatomy of racial inequality (see a review of the book and recent talk by Gloury himself).
The common thread here is that the justice system is just a component in a much larger set of institutions and practices. Talking about racism in the justice system is unduly restrictive.
Week 15: Debating
May 7 and May 9
I hope you got a sense that the question of this course is complicated. I hope you now have a more informed understanding. Intelligence Square hosted a debate on whether police are racially biased. We will examine this debate carefully its moves and countermoves, the appeal to statistics and the social sciences, the reframing of the questions, its hidden assumptions.
Week 16: Review
May 14 and May 16