Law in Contemporary Society

The Merits of Increasing Minority Presence in the Criminal Justice System

-- By AshleySimpson - 23 Feb 2010

It is important that minorities take positions in the criminal justice system in order to achieve greater fairness in both the perception and the application of the law. Though the mere presence of minorities in law enforcement, government prosecution and the judiciary is not a sufficient means on its own to stop the growing disparity between minorities and white criminals as represented in incarceration rates, their presence is a necessary factor in the process of reducing the institutional biases, that among other problems contribute to the disproportionate incarceration of minority groups, especially with respect to the black community.

The Incarceration Disparity

As of 2005, the national average ratio of Black to White prisoners and the ratio of Hispanic to white prisoners were both 1.8 to 1 and as of 2008, the total number of individuals incarcerated was 2,304,115. Institutional biases have contributed to a situation in which members of certain groups are targeted, thereby increasing their prison terms. For instance, the difference between sentencing of powder and crack cocaine is believed to target minorities from lower socio-economic backgrounds who are more likely to deal with crack than its more expensive powder alternative. The same drug in different form has garnered a 100 to 1 ratio in terms of its sentencing.

Minority Participation as a Safeguard Against Institutional Racism

The war on drugs serves as a testament to the contention that this problem persists. The toll that this perception takes on minority communities is that it polarizes the authority and those communities. Racially motivated investigations and stops all build into the perception that law enforcement will not treat minority groups fairly. Encouraging minorities to take positions in the criminal justice system would work to alleviate this problem. The presence of black people in the criminal justice system facilitates the perception among the black community that there are advocates or at least individuals who will listen to them and understand their points of view. Minorities working within the criminal justice system can promote both informal and formal cultural training so that the entire criminal justice staff can better interact and understand different community perspectives. When black communities take ownership of their criminal justice system through participation, they take ownership of the application of laws. Individuals who abuse their discretion by engaging in racially motivated arrests and prosecutions are more accountable when a group joins the justice process as opposed to allowing it to victimize them.

While it is true that these officials-- police officers, prosecutors and judges -- are subject to institutional constraints such as arrest quotas and the pressure to prosecute certain offenses, their perspectives as minorities and their interests as citizens remain. Some might also argue that black law enforcement officials are more racist or just as racist than other police officers. Being a minority does not protect individuals from various biases however in some cases, it will frame how that police officer deals with different cultures and understands them. Regardless, the more minorities take part in their justice system, the better able they are to control racially motivated abuses of discretion no matter who commits them.

Race in the Judiciary

Justice Sotomayor has been both criticized and praised for her statements on the perspective of race in the judiciary. Though I disagree with her 2001 statement “that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life,” I do believe that her perspective gives an understanding of facts that can potentially contribute to fairer conclusions. Law is not a science or a formal application of rules to specific fact patterns so to achieve an exact or “correct” solution in each application. Rather it is a fluid interpretation that is subject to the perspectives of those who administer it. While all white judges do not have the same perspective, minorities have different views. If these views are not allowed access to the judicial process, it will lead to the marginalization of those groups. Justice Sotomayor’s status as a Latina may not make her a better judge than her white counterparts but she enhances the process nonetheless through her understanding of those perspectives. The presence of other minority viewpoints would likely do the same.


As a black law student, the question remains whether these motivations are sufficient to permit me the keep a position with the justice system, despite the aforementioned institutional racism present. Personally, my experience working in a prosecutor's office indicates that the institutional racism of the justice department would not hamper my ability to work on the prosecutorial side of the justice system. While working for the department of justice, I found value and satisfaction in my work. Whether I worked on securities prosecution or a child abuse investigation, I felt as though I was helping the public through my work and that feeling compelled me to continue. Of course, I thought about how the criminal code affected minorities. Unfortunately, when you are black, that identity—that characteristic—is something that society reminds you of everyday. However, if I were to quit a job every time the particular institution demonstrated institutional racism, I would be relegated to my mother's couch for the rest of my life. From my perspective, the satisfaction that I felt in helping my community outweighs the institutional racism of the criminal system. The slight hope that I can alleviate those institutional harms is an even stronger motivation. I understand that others might not share my conclusion and that is fine. I can only speak for myself. Though I am uncertain that I will return to the justice department, if I did, I am certain that I would be comfortable with my decision.

It's hard to think of anyone who would really want to disagree with any of the propositions you advance, Ashley. There may be people who aren't familiar with your statistics, but they're not people who have ever thought about these issues before, and no matter how inexperienced they are, the case for not having more minority representation in the justice system is not very popular or very easy to make.

So the primary drawback to this essay is that you played it completely safe. I can't dispute with you the proposition that the ideas expressed here seemed unfamiliar to you: if you tell me these are the ideas you had, as opposed to familiar ideas that you've seen before and that felt a little old to you even as you put them down on the page, I'm not going to doubt you. But when I look at the publications of the organizations you mention, or consider what was said ad nauseam about that single sentence of Sonia Sotomayor's as a result of the meaningless Arnoldian flap created by Republicans seeking partisan advantage from opposing her nomination, I can't locate any sentence of your draft that isn't something said elsewhere within reach of the sources you cited or the incident you discuss.

It seems to me that you've worried so much about not failing that you've hindered yourself from success. The goal is to experiment with two activities: (1) generating new ideas, and (2) communicating them to others in ways that persuade others to engage. There's an inherent risk in having new ideas, but the risk lies in a different quarter than it seems to me you expect. It feels to me as though your primary concern is to avoid having a "wrong" idea. But as I keep struggling to express for people, a "wrong" idea can be more useful than a "right" idea if it leads to other ideas that are in turn valuable to our process of thought. Failed experiments and wrong ideas are inherently necessary to learning; it's only brain-dead systems of perversely stupid mis-evaluation that treat failed experiments as indications of poor performance.

Suppose you want to teach people to ask better questions, meaning questions that are more insightful, more basic, and which lead to broader and more durable learning experiences? How would you teach asking better questions? In my view, you would encourage people to ask questions, first by providing examples of provocative questions that people haven't asked themselves before, then by experiments in asking questions, following the questions beyond their answers to their implications, and then lastly by editing the resulting thought process to improve the breadth, daring, and sophistication of the question asked.

So that's what we're doing. But if concern to avoid failure of an experiment—which is not in itself a bad thing and is absolutely certain to accompany most meaningful learning experiences—prevents you from asking questions of any breadth or daring, the progress we can make is stringently limited.

So I'd shift the question someplace much less familiar, less safe, and more likely to lead in new directions.

Thank you for your input on my paper. I think with respect to your argument that the position I took is not a very hard position to advance, I disagree. I found it very difficult to determine what I believed concerning this issue as it's never been a question that has been presented to me before. Coming from a prosecutor background and studying the criminal justice system here at Columbia has left me very conflicted as to whether or not it would be meaningful for me as a minority to work in such an environment. My background tells me that prosecutors are the good guys; that cops are the good guys. These are the individuals who seek justice through their work. I have also seen this drive for justice through the work of the Federal Defender's office. On the other-hand, my studies highlight the imperfections of the justice system that go beyond the intentions of the prosecutors, especially with regards to its effect on minorities. While I do not believe that the justice system should be totally scrapped, this is an important inquiry for me (as I believe it should be for all minorities considering a similar career path) and this essay served as a jumping point for my self-discovery. My goal in law school is to find direction and through my studies of the problems with the criminal justice system, I am still conflicted as to whether or not becoming a prosecutor is the right direction for my career. I think playing it safe would be to ignore this question. However, I understand now that it failed to generate the completely new ideas that you sought through this learning experience. I'm not sure how to change this essay and if there is no means through the next writing assignment to do so, I'll come to office hours for more direction.

Lastly, I am driven to succeed and I hope that that drive continues.

Hey Ashley,

Having read your paper, I think I understand what Eben is getting at. Your paper puts forward an argument clearly and persuasively, and it succeeds as a piece of writing. What it doesn't capture, however, is you.

The underlying question that your paper raises for the reader is, given that the justice system disproportionally impacts minorities in harmful ways, why do you want to be involved in this work? Adding minority representation to law enforcement might eliminate racists from positions of power, but it does nothing to reduce the impact of systematic or social injustice. An African-American AUSA is still pushing forward the same destructive drug prosecutions and advocating for the same destructive mandatory sentencing guidelines with the same disparate impact--why do you want to be the person pulling the lever?

Now it might be that you feel that personal criminal responsibility generally supersedes the underlying impact of social and economic injustice. It might be that you feel that impoverishment or a history of discrimination is neither excuse nor justification for committing an armed robbery or attempting a rape or generally flouting the law. Alternatively, you might truly believe in the value of the laws you want to enforce: a true crusader against drugs, to use the above example. Or perhaps you feel that crime, at its most basic level, is solely about a victimizer and a victim--no matter their respective racial backgrounds.

I understand the motivation to help challenge the marred perception of law enforcement becoming involved and doing your job professionally and well--taking the power out of the hands of those that would abuse it. Yet the question you leave open is how you intend to reconcile yourself to the more subtle, yet still dangerous, problem of affecting peoples' lives, often in a racially disproportionate manner, due to systems outside of your control. You may have a solid rationale for defending such a choice. You may find that being part of such a system doesn't quite sit well with you, such that you need to reconsider your position. Either way, therein lies an interesting and provocative question that your essay hints at but ultimately skirts.

--Main.RonMazor - 1 Apr 2010


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r7 - 13 Jan 2012 - 23:14:08 - IanSullivan
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