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Walhalla, Donaustauf, Germany

The myth of a color-blind justice system in America

Ever wonder why Lady Justice looks the way she does?   She is modeled after the Roman goddess Iustitia and is an allegorical personification of the justice system.   She is usually depicted with a scale in one hand, a sword in the other, and wearing a blindfold.  Why?  Well, she is to use the scale to weigh the evidence.  Then, based on the evidence, she is to swing the sword in order to levy a swift and appropriate punishment.  And during all of this, she is supposed to be blind – or impartial – to the defendants’ wealth, power, status, and presumably, to the colors of their skin.

justice statue lady
“Justice statue lady” by William Cho. Public domain via Pixabay.

As of December 31, 2016, an estimated 1,506,757 individuals were under US state and federal correctional jurisdiction. Of those 1.5 million justice-involved individuals, 1,395,141 (92.5%) were classified as men and 111,616 (7.4%) as women. (The Bureau of Justice Statistics only offers the gender binary for classification purposes.)  In 2016, Whites comprised 61.6% of the US population, Hispanics/Latinx 17.6%, and Blacks/African Americans were 13.3%.  Yet, the percentage of sentenced prisoners that same year was White 30.2%, Hispanic/Latinx 23.3%, and Black/African American 33.4%. For those older than 18 in the US, this is a rate of imprisonment of 274 per 100,000 Whites, 857 per 100,000 Hispanics/Latinx, and 1,609 per 100,000 Blacks/African Americans.  Black adults are imprisoned at almost six times the rate of Whites.  So, what does Lady Justice make of this?  She might use her scales to examine the evidence – do folks behave differently or are they treated differently?

Do African Americans commit 6 times more crime or more severe crimes than Whites?  No.  They don’t.   There are some variations in offending by race/ethnicity.  FBI data suggest that Blacks commit more murder than Whites and Whites commit more rape.  African American offenders were disproportionately arrested for robbery and gambling as compared to their percentage in the population.  And Whites were disproportionately arrested for burglary, larceny-theft, other assaults, sex offenses, drug abuse violations, DUIs, arson, and vandalism, when compared to their percentage in the population.   When researchers control for legal and extra-legal variables, people of color are significantly more likely to be punished and are punished more severely for the same offenses committed by their White peers.

So then, disproportionality does not necessarily mean disparity? Disproportionality simply indicates that something is out of proportion with what is expected.  It is a mathematical calculation that doesn’t assess fairness or justice. Disparity, on the other hand, often includes the expectation that outcomes are fair and/or just.   Therefore, it depends on the goal or purpose.  We might ask Lady Justice about her goal/purpose.

The mission of the US Department of Justice is, “To enforce the law and defend the interests of the United States according to the law; to ensure public safety against threats foreign and domestic; to provide federal leadership in preventing and controlling crime; to seek just punishment for those guilty of unlawful behavior; and to ensure fair and impartial administration of justice for all Americans”.  Does the US justice system ensure fair and impartial administration of justice for all Americans?  Or has the blindfold fallen off and folks are treated differently by the system?

So as Lady Justice continues her work with the First Step Act and the reauthorization of the Juvenile Justice and Delinquency Prevention Act, the time is right for national justice reform and smart decarceration – but this must include a specific focus on racial and ethnic disparities.  A race-based problem requires a race-focused solution. Social work’s history and connection to the juvenile and criminal justice system, along with the ethical principles of service, social justice, dignity and worth of the person, and integrity, and a commitment to racial equity – can make us powerful allies for change.

Featured image: “Walhalla, Donaustauf, Germany,” by Markus Spiske. Public Domain via Unsplash.

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