Running Head: DISCRIMINATION IN THE JUSTICE SYSTEM 1

Discrimination in the Justice System

Juan Landeros, Dolores Mancha, Ana Romero

HSCI 660D: Social Determinants of Health

June 15, 2018

California State University, San Bernardino

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Executive summary:

Discrimination in the justice system has been an ongoing challenge that requires policy

changes to reduce the number of incarceration rates. The problem that is being addressed in this

policy brief paper is that there is discrimination in the justice system, both explicit and implicit,

that affects individuals long after their release. The minority population is being treated poorly,

incarcerated unfairly and barred from accessing benefits that can help them succeed. Statistics

that are reported throughout the policy brief report that Hispanics and African American people

have higher rates of incarceration. In an attempt to improve discrimination in the justice system

there needs to be new standards and policies implemented that is going to create change, address

mass incarceration, and help rehabilitate people convicted of crimes so they can succeed and

become productive members of society.

The recommendations for action is the elimination of all discrimination in the justice

system. Inmates deserve the opportunity to have a fair trial and serve the appropriate amount of

time in jail or prison despite their race or ethnicity, then be released back to the community with

an opportunity to succeed. A majority of the prisons are overcrowded and underfunded which

ultimately leads to worse health outcomes. Inmates that are dealing with discrimination in prison

tend to have ongoing barriers after release. Inmates often lose the social safety net of their

families during incarceration and after release which increases their chances of reoffending.

Context and importance of the problem:

The state of California has over 200,000 individuals who are incarcerated, whether it be

within our jail system or our prison system. For some, this is seen as a signal that our justice

system is working. They believe that all these 200,000 individuals are a danger to the public and
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that putting them in a cell is in the interest of public safety. While it may be true that some of

these individuals are violent and cannot function within society, it also important to note how our

justice system has imprisoned and failed individuals who could become productive members of

society.

Looking at the racial makeup of California prisons, one significant way in which our

system is broken is through the overrepresentation of minority populations. Over 39 million

people are living in California currently, and of that population 39% are Hispanic or Latino, 38%

are white, and less than 7% are black/African American (Nellis, 2016). It would be expected, in a

just system, that the makeup of our prison population would mirror the racial and ethnic makeup

of the general population. Looking at the data on prisoners in California, it can be seen how our

system incarcerates Hispanic and African American people at much higher rates. For every

100,000 African Americans in California, there are 1,767 African Americans in the prison

system. For every 100,000 Hispanics, there are 385 Hispanics in the prison system. For every

100,000 whites, there are only 201 whites in prison. This is almost a 9:1 ratio of African

American prisoners to white prisoners, and almost a 2:1 ratio of Hispanic to white prisoners

(Nellis, 2016). The cause of these numbers can all be traced back to discrimination. One of the

biggest drivers for racial disparities in the criminal justice system was a set of drug policies,

which has now become popularized and known as “the war on drugs.” These policies were

established to address drug consumption, production, and distribution. However, the war on

drugs focused most of its policing in urban areas, poor communities, and communities of color.

This lead to more individuals of color being arrested and sentenced for drug-related offenses.

This systematic inequality did not reflect the truth about drug addiction and drug use, where all

communities seem to have the same prevalence rates of drug use and dependence. It is estimated
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that African Americans make up 13% of drug users, however, on average 36% of African

American are arrested for drug offenses, and 46% are convicted. (“Report of The Sentencing

Project,” 2013). The policies of the war on drugs created multiple racial disparities within

various areas of the criminal justice system.

Discrimination in sentencing also had a significant impact on the racial make-up our

prison communities. The mandatory minimums associated with the war on drugs charged 5

grams of crack cocaine the same as it would 500 grams of powder cocaine. People caught with

small amounts of crack were given 5-year sentences, and people with over a pound of cocaine

would also receive the same 5-year sentence. Because of the use of crack in urban communities

and communities of color, more individuals were given 5-year sentences for small amounts of

crack. The preference of cocaine amongst wealthier communities and white communities

allowed for them to get away with egregious amounts of cocaine without receiving a mandatory

minimum 5-year sentence. The war on drugs imprisoned people of color and placed them in the

cycle of incarceration. This had a profound effect on communities of color, and the family

structure of poor neighborhoods. The effects of this mass imprisonment and focus on

incarcerating the poor and people of color can be seen in these neighborhoods and our prison

system to this day.

Once out of prison, these individuals and communities still feel the effects of convictions,

which are referred to as collateral consequences. According to G.J. Chin, “Conviction can also

restrict one’s ability to hold a government contract, to obtain government licenses and permits

(Love, 2017), 4 to live in public housing or receive other benefits (Cammett, 2016; Love, 2017;

Silva, 2015), or to collect a vested public pension (Commonwealth v. Abraham, 2012).” Finding

information on these collateral consequences can be difficult, they are not listed on any
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government website, but rather are spread across policies at both the state and federal level and

are often not discussed until long after an individual is convicted and released (Chin, 2017). A

look at the Collateral Consequences Resource Center web tool that compiles collateral

consequences at the California state and federal level illustrates the sheer amount of restrictions

placed on an individual after incarceration, some of which have a direct tie to social determinants

that can lead to recidivism. In the category of restrictions on licenses in CA, there are over 500

different restrictions ranging from year-long restrictions on operating a commercial vehicle, to

denial of the certification needed to be a medical enroller (Consequence Search). These wide-

ranging restrictions create problems in finding work, finding housing, and eliminating the

criminogenic needs that an individual brings with them upon release that can lead to recidivism.

Critique of policy options:

Some policies are being presented to address the systemic discrimination in the criminal

justice system. These policies focus on addressing various levels of discrimination, such as

reforming policies or reducing the barriers to reentry into society, for former inmates. The

National Association for the Advancement of Colored People estimates that African Americans

and Hispanics account for 32% of the U.S. population, but they make up 56% of the total

incarcerated population. These statistics not only illustrate the discrimination in our judicial

system, but it also predicts the lack of diversity in the workforce. Ban the box is a nationwide

initiative to remove the checkbox, on an employment application, which asks applicants “if they

have ever been convicted of a crime.” The removal of this box from an employment application

not only reduces the barrier of employment for many former inmates, but it also provides them

with an equitable opportunity to compete for a position. Once inmates are released, they carry
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with them a criminal record that becomes a barrier to their success, by limiting the opportunities

for employment and careers.

The National Employment Law Project approximates that there are 70 million U.S. adults

with either arrests or conviction records that have impeded their employment opportunities. This

large pool of individuals is turned away and not given a chance to display their skills, due to the

negative perception of an arrest or conviction. Many times, applications are quickly discarded if

there is an indication of a previous criminal record. The applicants do not receive a callback and

are not given the opportunity to disclose their criminal record. The relevance of the crime and the

available position, are thus not taken into account. Ban the Box is merely allowing individuals to

get past the application process. The stigma surrounding former inmates is a barrier to their re-

entry back into society because it creates various challenges, like finding employment, that they

must overcome to thrive in society and not fall into the path of recidivism.

Another policy that has been approved and implemented to address the systemic

discrimination in the criminal justice system is Proposition 47. California Proposition 47, (Prop

47), reduces specified low-level drug and property crimes from felonies to misdemeanors. Prop

47 was approved on the November 2014 ballot. Prop 47 is an excellent first step but has

shortcomings. Prop 47 is reducing the number of people that are in prison, many of which were

incarcerated using the unfair policies of the war on drugs. Studies have shown that people of

color, African American people, in particular, are more likely to be charged, convicted, and

harshly sentenced. There have been many inmates that have been released since Prop 47, but

there is research that has shown racial inequality. According to Al Jazeera News in 2016, it

reported that black people are massively over-represented in the overall criminal justice system.

The statistics indicate that the prison population is almost 40 percent African American, while
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the country as a whole is less than 15 percent black. Racial inequality exists all around the world,

but especially in the prison system. This disparity needs to be addressed, its effects mitigated,

and policies need to be changed in order to decrease barriers and affect change.

These policy changes are a great first step in addressing the racial disparities in our

criminal justice system, but more needs to be done to address the barriers put in place on

individuals upon release. Prop 47 put in place guidelines to release low-level, nonviolent

offenders, and reduce their convictions to misdemeanors, but has done little to address the

criminogenic needs of these individuals that will make them more likely to re-offend and

recidivate. The collateral consequences associated with any conviction limiting the type of work

these individuals can do, restrict their ability to adopt or foster children, restrict their ability to

join the armed forces, and limit their capacity to remove themselves from the cycle of

incarceration. Ban the box strives to address the collateral consequence that can effectively bar

an individual from finding work but does little to address the restrictions on state licenses and

outright banning of certain types of work. These policies have been implemented in the state of

California, which is of little help to individuals facing the same issues in other states or at the

federal level. Policies like Ban the Box and Proposition 47 are an important step in the right

direction but will not see the most effect unless similar policies are implemented at the federal

level, and new policies are created to address collateral consequences and criminogenic needs.

Policy Recommendations:

The implications of discrimination in the criminal justice system go beyond convictions

or arrests, and these records can have a lasting impact on job outlooks, civic duties, and health

disparities. Policy recommendations need to focus on removing bans that are in place that

prohibit qualifying for government assistance programs, such as housing assistance,

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Supplemental Assistance Program (SNAP), and Medicare. Reforming policies that prohibit

former inmates from obtaining a professional license. These policies are blanket restrictions, and

equally restricts people with felony criminal records, despite the type of crime that was

committed. Licensing restrictions need to focus on set criteria that focus on the type of crime

committed, when was the crime committed, and evidence of rehabilitation (Schulte, 2014).

At the policy level, it is necessary to reexamine sentencing laws and punishments,

especially on drug-related offenses. Mandatory minimum sentences helped add to the racial

disparity seen in our current prison system, as well as the over-policing of urban and poor areas.

By altering how we police, removing mandatory minimums for drug offenses and offering

diversion and treatment as opposed to imprisonment, we can begin to address the issues and

disparities that are remnants of the drug war and exacerbate racial disparities in the justice

system. Barriers for inmates to obtain stable jobs, acquire affordable health insurance,

supplemental assistance could lead to recidivism. The United States has the largest prison

population in the world. Policies need to be evaluated, and new ones should be implemented.

Just because a person is not incarcerated doesn't mean that they have escaped legal

consequences, these individuals still lose civil rights.

The adoption and implementation of similar policies at the federal level would help

address the racial disparity fostered through the war on drugs, to a higher degree. Once released,

these individuals can attempt to become productive members of society, and with policies that

ban employers from asking about previous convictions, they can have a better opportunity to

break the cycle of recidivism. Reexamining the collateral consequences of convictions and

eliminating blanket bans that have no relation to the crime committed, can have the effect of

protecting the public while also allowing previously convicted individuals every opportunity to
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create a better life for themselves, their families, and remove themselves from the cycle of

incarceration.
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References

Bored of State and Community Corrections (BSCC). (2014). Proposition 47 and the BSCC.

Retrieved from http://www.bscc.ca.gov/s_bsccprop47.php

Chin, G. J. (2017). Collateral Consequences of Criminal Conviction. Criminology, Criminal

Justice, Law & Society,18(3), 1-17. Retrieved June 15, 2018, from

https://ccjls.scholasticahq.com/article/2721.pdf.

Consequence Search. (2017, February 20). Retrieved June 15, 2018, from

http://california.ccresourcecenter.org/consequence-search/

Green, C. (2016, November 6). California’s Prop 47: Has it helped African Americans?

Aljazeera. Retrieved from

https://www.aljazeera.com/indepth/features/2016/11/california-prop-47-helped-african-

americans-161101172049495.html

National Employment Law Project. (2018). Ban the box: U.S. cities, counties, and states adopt

fair hiring policies. Retrieved from: http://www.nelp.org/publication/ban-the-box-fair-

chance-hiring-state-and-local-guide/

Nellis, A. (2016, June 14). The color of justice: racial and ethnic disparity in state prisons. The

Sentencing Project. Retrieved from

https://www.sentencingproject.org/publications/color-of-justice-racial-and-ethnic-

disparity-in-state-prisons/

Schulte, M. (2014). Felony conviction, barrier to obtaining professional license. Georgia Center

for Opportunity. Retrieved from https://georgiaopportunity.org/access-professional-

licenses-benefit-returning-citizens/
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Report of The Sentencing Project to the United Nations Human Rights Committee Regarding

Racial Disparities in the United States Criminal Justice System. (August 2013). The

Sentencing Project. Retrieved from https://sentencingproject.org/wp-

content/uploads/2015/12/Race-and-Justice-Shadow-Report-ICCPR.pdf