Disparity Vs. Discrimination in the Criminal Justice System

In examining race and ethnicity, the argument as to if discrimination exists within the criminal justice system has been going on for several years. The debate concerning racial discrimination in the justice system stems from the confusion over the definition of discrimination (Walker, Spohn, & Delone, 2004). The terms definition and disparity in the criminal justice system are often confused and causes a heated debate concerning if discrimination exists in the criminal justice system. Additionally, discrimination comes in many different forms and has several levels of seriousness (Walker, Spohn, & Delone, 2004). Disparity, in comparison, refers to a difference but does not always involve discrimination (Walker, Spohn, & Delone, 2004). To determine if discrimination exists in the criminal justice system or if the differences are a result of disparity one must fully understand the key differences between discrimination and disparity.

Discrimination is a difference based on differential treatment of people without regard to the individual's behavior or qualifications (Walker, Spohn, & Delone, 2004). Forms of discrimination in the criminal justice system are systematic discrimination, institutionalized discrimination, contextual discrimination, and pure justice (Walker, Spohn, & Delone, 2004). Systematic discrimination occurs constantly in every criminal justice system stage, every part of the country, and without variation (Walker, Spohn, & Delone, 2004). In other words, systematic discrimination occurs when a particular race, gender, age, ethnicity, or lifestyle group encounters discrimination in every stage, every part of the country, and without variation. Some people argue systematic discrimination exists whereas others argue that because systematic discrimination would mean a group of people or person would encounter consistent discrimination in the criminal justice system stages then systematic discrimination is a myth (Robinson & Williams, 2009). Institutionalized discrimination concerns disparities in results than through policies (Walker, Spohn, & Delone, 2004). The main element to institutionalized discrimination is result, not race (Walker, Spohn, & Delone, 2004). In institutionalized discrimination, people are not discriminated on intentionally but are a result of the enforcement of particular policies. For example, a form of institutionalized discrimination is found in that police are normally patrolling poor or minority neighborhoods more often because of high crime rates; therefore, higher arrest rates will exist in poor and minority areas (Robinson & Williams, 2009). The difference in the arrest rates of poor and minorities versus middle-class areas is a result of the law enforcement's practices (Robinson & Williams, 2009). Contextual discrimination concerns discrimination in particular situations or contexts (Walker, Spohn, & Delone, 2004). Contextual discrimination is discrimination that is found in some places, at certain times, and in some contexts (Robinson & Williams, 2009). An example of contextual discrimination is demonstrated in a study conducted by Demuth on the process of felony defenders in large urban courts that indicated that Hispanic defendants were required to pay higher bails yet were least able to pay bail (Robinson & Williams, 2009). Finally, concept of pure justice indicates that discrimination does not exist at any time or place in the criminal justice system (Walker, Spohn, & Delone, 2004). Because research indicates the existence of institutional discrimination than the concept of pure justice does not exist in the criminal justice system.

Unlike discrimination, disparity is a difference explained by legitimate factors (Walker, Spohn, & Delone, 2004). The main difference between disparity and discrimination is legal or extralegal factors; therefore, when a decision is made based on the seriousness of the offense and the offender's prior criminal record the difference is a disparity (Walker, Spohn, & Delone, 2004). However, when a decision is made based on race, gender, ethnicity, social class, or lifestyle the difference is a result of discrimination (Walker, Spohn, & Delone, 2004). A common example of a disparity in the criminal justice system is found in sentencing guidelines. In the 1990s the Sentencing Guidelines and Policy Statements of the Sentencing Reform Act of 1984 that applies to all federal offenses committed after November 1, 1987 created many disparities (Mustard, 2001). According to Douglas McDonald and Kenneth Carlson, the disparity between black and white increased after the establishment of the guidelines because of choices made by Congress and the United States Sentencing Commission (Mustard, 2001). One commonly known disparity created in the sentencing guidelines used today is the lengthier sentences for drug charges on crack cocaine that creates racial disparities because crack cocaine is cheaper to obtain than the powder cocaine.

Both discrimination and disparity exists within the criminal justice system at one stage or another. However, to determine whether the decision is a form of discrimination or a disparity professionals must examine the decision to decide if the decision was made based on a person's age, race, gender, ethnicity, or lifestyle or if the decision were made based on legitimate factors such as a person's prior criminal history. Forms of discrimination are normally found in arrest discretions or use of force whereas disparities are most commonly seen during sentencing. However, to determine which element affected the decision the professional must analyze the intent of the person making the decision in the criminal justice system. For example, the person must analyze whether a judge sentenced the offender to five years because of the offender's prior criminal record or because the judge has bias against African Americans. One thing that is for certain; however, is that as a society influenced by many factors that impact the criminal justice system the concept of pure justice is an almost impossible goal.

References

Mustard, D.B. (2001). Racial, ethnic, and gender disparities in sentencing: Evidence from the U.S. Federal Courts. Retrieved October 4, 2009, from http://www.terry.uga.edu/~mustard/sentencing.pdf

Robinson, M. & Williams, M. (2009). The myth of a fair criminal justice system. Retrieved October 4, 2009, from http://www.cjcj.org/files/the_myth.pdf

Walker, S., Spohn, C. & DeLone, M. (2004) The color of justice: Race, ethnicity and crime in America (3rd ed.). Belmont, CA: Thomson/Wadsworth. Retrieved October 5, 2009, from University of Phoenix, CJA423-Culturual Diversity in Criminal Justice rEsource website.