Lady Justice Is Not Wearing A Blindfold
In 1996, Jerald Sanders, a Black man and resident of Alabama, used his pocket knife to tear a hole in a front porch screen so he could steal a bicycle stored inside.
When apprehended a few weeks later, Sanders was charged with burglary in the first degree, a Class C felony.
Because Sanders had multiple prior offenses on his record, his sentence was pushed to life in prison without parole. A Class C felony often results in a fine or minimal jail time.
Sanders’ story is not rare. Black men are sentenced to prison time that reflects not only the crime for which they are being sentenced but for their entire criminal history. According to statistics from the Sentencing Project, Blacks are incarcerated at more than five times the rate of whites.
The high rate of incarcerated people of color is intertwined with a history of institutionalized racism, said LaJuana Davis, a former attorney and professor of criminal law and procedure at Samford University.
“Most people in the criminal justice system would agree that racism plays a role in the criminal justice system,” she said. “We know that there are various racial disparities and differences in sentencing African Americans compared to whites and Latinos compared to whites” One out of every three Black males born can expect to go to prison or jail in his or her lifetime. “It’s almost impossible to avoid going to jail.”
Higher Incarceration Rates
The statistics surrounding specific charges also demonstrates a jarring disparity. According to the NAACP, “5% of illicit drug users are African American, yet African Americans represent 29% of those arrested and 33% of those incarcerated for drug offenses.”
However, new statistics from the bureau show the imprisonment rate of Black people across the United States decreased by 34% between 2006 and 2018. At the end of 2018, there were 1,501 Black prisoners for every 100,000 Black adults in the country, the study states. But that number was down sharply from 2006 when there were 2,261 Black inmates for every 100,000 Black adults.
Still, at the end of 2018, Blacks were imprisoned at more than five times the rate of whites, which was 268 per 100,000, and nearly twice the rate of Hispanics, which was 797 per 100,000.
Kira Fonteneau, a civil rights attorney and former public defender for Jefferson County, has seen her share of what seemed to be racial bias in court cases. Fonteneau credits most of the disparities in the incarceration system to fear.
Fonteneau said fear is instilled in white people through years of “racist marketing” of Black people. Racist marketing is a reference to the negative representation of people of color through media, music or advertising.
“What I see most often is irrational fear and irrational biases — preconceived notions about people of color, particularly Black and brown people. So, we as African Americans for some reason have been the victims of more brutality yet are seen as more brutal,” Fonteneau said.
Fonteneau said incarceration has been used as a tool to control Black people for hundreds of years, and that control permeates through a Black person’s life.
“I think it’s palpable right now, a fear of a loss of dominance and a loss of control and the one way we can maintain control is to continue to incarcerate,” said Fonteneau.
Fonteneau said it’s that same need for control that dictates the majority of sentences.
“You know, this white kid from Vestavia that smokes a little weed, [he’s] just doing a youthful indiscretion, but this person in East Lake who’s smoking a little weed is on his way to a life of crime and we have to snuff that out right now. Punishment is the only way we can do that. But not only do we punish them, but we have to make sure we punish them in a way that walks with them,” Fonteneau said.
Davis said the origins of these punishments can be traced back to the Jim Crow laws that began in the 1800s and were created to control Black people. While Davis said the motivation for some of those laws at the time was to create convict workers to work for free, the ultimate goal was to take away from people of color the chance to vote, have basic rights or own land.
“A lot of those laws stuck around even after the justification for them went away and while that’s part of it, I think another part of it is the legislatures wanting to control violent people and put them away forever,” she said. “So, how did we get some of those laws to start applying to things like petty theft.”
Even the process for receiving parole early based on good behavior can be much more difficult for people of color, according to a Sentencing Project report. The report made the point that parole boards look at conduct in prison when making their determinations. However, the report cited a New York Times investigation that found that correction officers in that state’s prisons were more likely to file harsh disciplinary write-ups on Blacks and Latinos than on whites for similar conduct.
Once in prison, the chance for early release is slim.
“The parole board doesn’t care. They’re reducing the number of hearings. We’re reviewing them but letting very few people out because it is not in their intention to release people,” Fonteneau said.
Profiling In and Out of Court
Davis and Fonteneau both credit the large incarceration numbers to the long history of institutionalized racism against Black people — a history that continues to plague Black people in and out of court.
“If your only encounter with people of color is that same, ‘criminal, dangerous, willing to do anything’ marketing, then that’s what you bring to the community and that’s how you interact with people in that community,” said Davis. “Sometimes when [police officers] see us, all they see is somebody doing something wrong or bad. Some officers truly do not see us as taxpayers and people who have jobs and people who have car payments just like they do.”
The over-policing of minority communities leads to more minorities being arrested, Davis said.
“If police are heavily policing minority communities, then obviously the majority of people they arrest are going to be in those communities. So, it starts long before a person gets to the courts,” said Davis.
Fonteneau said it is impossible to “look at the criminal justice system without a lens of race.”
Looking at the origins of the police department helps map out the “pattern through the criminal justice system [that] still confines people of color in vastly disproportionate rates and over-polices them in their neighborhoods in all the wrong ways and then assesses harsher penalties for the same crimes [as white people].”
“Once they’ve paid their debts to society, they also have a harder time rejoining society by finding gainful work because of those convictions … It’s almost too hard to tackle because it goes to the core of everyone’s daily lives,” Fonteneau said.
Davis said racial profiling stems from a long, historical system of discrimination that should be closely examined.
“I don’t think any prosecutor or any judge in the United States [is] going to say, ‘I discriminate against people based on color, race or religion.’ Not only that, but I think a majority of them do not believe that they do,” Davis said. “The problem is a lot of them are being presented with a system of institutionalized racism, and so once you’re in that system, even the things that you do that are so-called ‘color blind’ are essentially things that are being almost exclusively experienced by communities of color.”
“Until we turn around those types of views,” Davis said, “we’re not giving anybody in the system the motive to really look at why these things are happening.”
Enhanced sentencing, like in the case of Jerald Sanders, happens frequently. In November, 1,507 inmates were serving life without parole sentences in Alabama prisons, according to Department of Corrections statistics.
While many inmates are guilty of their crimes, there are those who are pushed through the system without proper due process and end up serving time for a crime they did not commit. Anthony Ray Hinton of Alabama is one of these people.
Thirty-five years ago, Alabama resident Anthony Ray Hinton was arrested for two capital murders and a third unrelated crime. Hinton said he had been working the night shift when the murders took place, but police asserted that a revolver found in his mother’s house was the murder weapon. Hinton was sentenced to death.
In 2002, firearm experts conducted new ballistics tests and testified the gun and bullets used in the crime did not match Hinton’s revolver. Despite this evidence, state prosecutors refused to reexamine the case.
It wasn’t until 2015 that Hinton’s case was finally overturned with the help of the Montgomery-based Equal Justice Initiative, and he was able to walk out of prison as a free man.
The Equal Justice Initiative also aided in the release of Jerald Sanders, who was released from prison after 12 years.
How such excessive sentencing can exist in the first place is a question Davis said needs close examination.
“The courts looked at [Sanders] and thought, ‘This person isn’t worth anything. He will never be worth anything. We should just put this guy away.’ And then the question becomes, why does the system think somebody like this is not worth anything; that this person is so meaningless they have to serve a life sentence for these crimes. Is that race? I don’t know, but it isn’t an unusual story itself,” said Davis.
According to Davis, it’s important to pay attention to the organization of the criminal justice system.
“The question is, are the shortcuts that we’re taking in the criminal justice system leading to the disparities we’re seeing in incarceration? The answer is yes,” she said.
“The system is moving the person through very quickly. So in terms of trying to figure out if the person is a danger to the public and future, or if it’s someone who could possibly be rehabilitated, it’s really hard to figure that out because the case is moving so fast in the time a person goes to jail and the time the person has to take a plea,” said Davis.
The courts’ speedy approach to handling cases also can sway a defendant’s plea decision. Blacks are assumed to be higher flight risks “because they are more likely to experience socioeconomic disadvantage and to have criminal records,” according to the Sentencing Project. This stigma leads to more Black defendants being placed in pretrial detention. The Sentencing Project also wrote that “pretrial detention has been shown to increase the odds of conviction, and people who are detained awaiting trial are also more likely to accept less favorable plea deals, to be sentenced to prison, and to receive longer sentences.”
The Sentencing Project also examined the obstacle of paying bonds for low-income defendants.
“Seventy percent of pretrial releases require money bond(s), an especially high hurdle for low-income defendants, who are disproportionately people of color… Blacks and Latinos are more likely than whites to be denied bail, to have a higher money bond set, and to be detained because they cannot pay their bond,” according to the Sentencing Project.
Fonteneau said that about five years ago, the Alabama Legislature created a new level of felonies called Class D felonies. The charges include crimes such as possession of a controlled substance, fraudulent use of a credit card and third-degree theft of services. Being convicted of one of these now means an individual has a felony on their record. This, Fonteneau said, is another attempt at controlling the future of incarcerated Black people.
“So, now we have this minor offense that used to be a misdemeanor but we’re going to insist that it be a felony … Felonies get reported and you have to tell people on your job application about felonies. So what does that do? It keeps people from being able to rejoin society,” said Fonteneau.
Fonteneau said it comes down to objective versus subjective sentencing. Objective sentencing is a blanket system that sentences an individual based on the severity of the crime. Fonteneau refers to it as a sort of point system.
“That is problematic because you have situations where, say, a bike is worth a certain amount of points and you end up going to prison for the rest of your life, which is too punitive,” said Fonteneau.
Subjective sentencing is based on a judge’s personal perspective.
“[Subjective sentencing] is when the judge can look at everything involved in the case and say, ‘This person had a really bad day, they shouldn’t go to prison.’ And the problem with that is white people get the benefit of the doubt, Black people don’t. Black people go to prison, white people don’t. When you introduce subjectivity, you get an unequal application of the law,” said Fonteneau.
Fonteneau’s thoughts on how to find the balance of objectivity and subjectivity: “The truth is, you can’t. There will be injustice on either side.”
Proving Racism in Criminal Justice
Those incarcerated who feel their sentencing was the result of direct racism have a hard row to hoe if they want to prove that racism and get their conviction overturned.
The U.S. Supreme Court in 1987 ruled that even “solid statistical evidence of race discrimination in the capital justice system did not offend the Constitution,” as quoted in a New York Times article. In the decades following, the court ruling has, according to Davis, “colored the entire criminal justice system.”
The ruling came in the Georgia case of McCleskey v. Kemp, in which a Black man, Warren McCleskey, was convicted of murdering a white police officer during an armed robbery in 1978. McCleskey was sentenced to the death penalty and petitioned for his sentence to be reevaluated, alleging the Georgia capital sentencing process was administered in a racially discriminatory manner.
In support of the claim, McCleskey cited a study that showed the disparities of death sentences in Georgia in the 1970s based on the murder victim’s race and the defendant’s race, called the Baldus study. The study found that Black defendants who killed white victims had the greatest likelihood of receiving the death penalty.
“That case was about a death penalty case, but the courts said if it’s not blatant intentional racism, we’re not going to look into racial bias in capital sentencing because we think there’s always going to be bias and we can’t do anything about it,” Davis said. “So, by capitulating this thought process of, ‘We can’t do anything about it so we shouldn’t even try,’ they kind of sent this message to the criminal justice community to just shrug your shoulders and move on.”
Meanwhile, Davis said, the criminal justice system leaves itself open to racism in part because of the lack of oversight of prosecutors.
“We have a process where people are being charged by prosecutors and in that system, no one has any oversight over who gets charged, what they get charged with and the sentence they get offered as a plea. That’s entirely within the prosecutors’ office and entirely within his or her discretion. And as far as I know, there is very little oversight in that process. So, if there are any disparities there, it is very difficult to figure out what they are or to have any information about them,” Davis said.
The Sentencing Project reported that “prosecutors are more likely to charge people of color with crimes that carry heavier sentences than whites. Federal prosecutors, for example, are twice as likely to charge African Americans with offenses that carry a mandatory minimum sentence than similarly situated whites. State prosecutors are also more likely to charge Black rather than similar white defendants under habitual offender laws.”
Fighting for Change
While a complete revision of the incarceration system may seem out of reach, there are plenty of people fighting for change. In addition to the Equal Justice Initiative, other organizations such as The Innocence Project and The Exoneration Initiative represent those who feel they have been wrongfully accused or feel their sentencing was the result of discrimination. According to the National Registry of Exonerations, African Americans make up 47% of exonerated cases in the United States.
Davis said making changes “starts at the top,” and individuals should use their power of the vote to work toward change.
“Start making demands of the people who represent us to change or at least try to look into some of the things we are pointing out. And I’m talking about all of us as citizens. If we see disparities against young Black males, young Latinx males, we need an answer for that and the answer can’t just be, ‘Well, they commit more crimes,’ because the studies are controlled for that,” Davis said.
“A criminal justice system that is unexamined can never be made better,” said Davis. “If you’re not trying to figure out what’s wrong, it will never be made better.”