Disproportionate Incarceration

Statistics

African Americans constituted about 12.4% of the U.S. population in 2006, but they constituted over 37% of those in federal and state prisons and almost 39% of those in local jails—about 3 times their percentage in the population as a whole. Hispanics made up 14.8% of the general population but over 20% of those in prison and nearly 16% of those in jail. By contrast, non-Hispanic Whites were 66% of the total population but only about 35% of the prison population and 44% of the jail population. (In 2006 there were over 1.5 million prisoners and about 760,000 jail inmates in the United States.) One in every 41 Blacks and 1 in 96 Hispanics were incarcerated, compared to 1 in 133 of the total population and 1 in 245 Whites; this means that Blacks are incarcerated at approximately 6 times the rate of Whites. One in 9 African American men between the ages of 20 and 34 were behind bars, almost 15 times the incarceration rate for the population as a whole (which is itself the highest in the world—almost 7 times the rate in Europe) and 8 times the rate for all men.

History

Statistical disparities do not by themselves demonstrate discrimination (because it may be possible to explain them in terms of legitimate factors), but given the long history of racial inequities and institutionalized discrimination in the United States, many scholars believe that the burden of proof lies with those who would deny that a significant portion of the differences in incarceration rates today is the result of racism. In the antebellum South, “slave codes” denied Blacks most legal rights and prohibited them from gathering unless a White person was present. Punishments for many crimes were determined by race in both the North and the South. In Pennsylvania, for example, the penalty for an African American man convicted of raping a White woman was death, whereas a White man convicted of the same crime faced no more than 7 years in prison. A White man convicted of raping a Black woman in Georgia could escape with a fine.

After the Civil War, the former Confederate states introduced “Black Codes,” designed to maintain White supremacy and ensure a supply of cheap labor. For example, unemployed Blacks of no fixed abode could be arrested for vagrancy and, if unable to pay a fine, required to perform labor. These codes were struck down by the passage of the Fourteenth and Fifteenth Amendments to the Constitution during the period of Reconstruction, but these codes came to an end in 1877, southern states enacted Jim Crow segregation laws under the fiction of “separate but equal,” and Blacks and other minority racial groups continued to be treated unequally by the police and courts, despite the Constitution's promise of equal treatment. During the late 19th century, incarceration expanded dramatically in the South, with many Blacks arrested for “crimes” such as vagrancy and loitering and the creation of an extensive convict-lease system, which rented mainly Black prisoners to private landowners and businesses—a system that many regarded as worse than slavery, as employers were not concerned if their prison-laborers died. When the convict-lease system finally ended in the early 20th century, it was replaced in many states by the use of prisoners in chain gangs to build roads and labor on other public works projects. Meanwhile, pervasive racism ensured that members of minority groups continued to receive unequal treatment in the criminal justice system.

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