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Race and Ethnicity

Race In U.s. Legal History, Native Americans, Black Americans And Crime, Policing And Minorities

The United States of the twenty-first century is a result of five hundred years of immigration combined with the surviving Native American populations. The first European settlements along the Atlantic coastline in the early seventeenth century began a three-century forced relocation of hundreds of established Native American societies.

Waves of immigrants came to the United States after the early European settlers and continued into the twenty-first century. Some came by choice, others by force. Most early immigration was from Great Britain and northern Europe. Before long, black slaves were brought in from western Africa. By the late nineteenth century, east European, Asian, and Hispanic populations had arrived.

White Anglo-Saxons dominated the settlements at the time of the American Revolution (1775–83), though this steadily gave way to a greater mix of people. By the 2000 census, about one-third of all Americans considered themselves minorities. This increasing diversity of the U.S. population raised difficult issues in the criminal justice system.

Protesters outside of the statehouse annex in Trenton, New Jersey, before state supreme court justice Peter Verniero testified to the State Judiciary Committee hearing on racial profiling in 2001. (AP/Wide World Photos)

The terms race and ethnicity are most commonly used to describe the diversity of the American population. Ethnicity refers to a group of people who share a common culture often through language, custom, and religion. Race is based on physical appearances, such as skin color, hair texture, and eye shape. Historically in the United States, people considered "white" dominated the justice system; there were white judges, white lawyers, and white prosecutors. It was not until the twentieth century that more minorities were represented in the legal process.

Regardless of how many decades or centuries different populations have resided in the United States, ethnic background and countries of origin have remained an important aspect of a person's identity. Though race is not a scientific term, it remains a powerful social influence regarding education, income, politics, and criminal investigations. A person's race is listed on various government documents such as birth certificates, driver's licenses, school enrollments, and crime statistics. Though this information can be useful it is not accurate since many Americans are a mix of nationalities.

Racial profiling

Racial profiling occurs when police stop a motorist or pedestrian based on his or her race or ethnicity. At one time, profiling was a policing practice focusing on certain suspicious behavior or circumstances likely to have criminal connections or fit into past crime patterns. Statistics found that males, especially youths, were more commonly associated with crime and this led police to focus more on this particular segment of society. While profiling is said to increase the efficiency of the police as well as the safety of the officers, it has clearly been abused.

A tendency to patrol high crime areas, many of which are in or near minority residential areas, led some to believe the police were "profiling" people of color. Additionally, a disproportionate or unusually large number of young black males were pulled over by police, leading to accusations of "driving while black" or racial profiling. Black Americans believed a majority of these young men were pulled over simply because of the color of their skin, not for any violation of the law. Such cases of racial profiling and harassment escalated throughout the 1990s.

A 1999 press conference on a New York state investigation into racial profiling among the state police. The four African American men pictured were stopped on the New Jersey turnpike and shot by state troopers. (AP/Wide World Photos)

Racial profiling became a greater public concern following the beginning of the War on Drugs. New drug laws introduced sweeping forfeiture laws allowing police to seize and keep cash or valuable property related to drug convictions. This was a major new opportunity for revenue and led to more aggressive policing in drug enforcement, particularly aimed at drug trafficking on the streets.

A focus on black youth developed as well. Police adopted new practices such as following a vehicle whose driver or passengers seemed suspicious until a driving violation was observed. The officers then searched the vehicle during the traffic stop, but only if given the driver's permission. If a driver did not give consent, he or she could be arrested. In 1996 the U.S. Supreme Court ruled this type of profiling and policing was illegal.

Studies affirmed that minorities, particularly black Americans, were more likely to be stopped out of suspicion and searched than whites during routine traffic stops. Though race made a significant difference in making stops and searching vehicles, additional data indicated that race had little impact in arrests or citations.

The death penalty

The segment of the criminal justice system that has drawn the most attention in regard to minorities is the death penalty. Nationwide over half, 55 percent, of those executed between 1930 and 1991 were black. Executions of black Americans occurred at such a high rate compared to other racial categories that in 1972 the U.S. Supreme Court temporarily prohibited death penalty sentences when a black defendant successfully argued the death penalty was applied to black offenders at a much greater rate than others for the same kind of offenses.

The disparity between white and black executions was found predominately in the South. Later studies showed blacks had a 22 percent chance of receiving the death penalty for murdering a white, compared to a white offender having only an 8 percent chance. The death penalty was applied in only 1 percent of cases involving a black murdering a black, and in 3 percent of cases involving a white murdering a black. A death sentence was four times more likely to be imposed if the victim was white. Between 1976 and 1995 only two whites were executed for murdering a black.

Further differences were discovered in the rate of offenders having their death sentences commuted (reduced) to life sentences. Some 20 percent of white death row offenders had their sentences commuted, compared to only 11 percent of blacks between 1914 and 1958 in Pennsylvania. At the end of the twentieth century some 40 percent of death row inmates were black.

The War on Drugs and imprisonment

Overall crime statistics suggest a key reason minorities experience a higher rate of incarceration is because they commit more crimes. The one clear exception, however, has been drug cases. The War on Drugs began with passage of the Omnibus Anti-Drug Abuse Act in 1986, which had a major impact on arrests, court cases, and prison population. Minorities, especially blacks, had higher rates for both arrests and incarcerations. In a 1999 report the ACLU argued that even though blacks comprised just 13 percent of drug users, blacks comprised 37 percent of drug-related arrests, 55 percent of drug convictions, and 74 percent of drug offenders sentenced to prison. These statistics indicated a strong difference within the criminal justice system regarding the treatment of minorities.

A major factor in this disparity was the appearance of crack cocaine as a major drug of choice in the 1980s. Its low cost and high potency compared to regular powder cocaine made it very attractive in impoverished inner-city areas. The new federal drug laws set penalties for the sale or possession of five grams of crack cocaine, the same as five hundred grams of powder cocaine—a felony with a mandatory minimum sentence of five years of prison.

In contrast, possession of five grams of powder cocaine remained a misdemeanor with a maximum sentence of one year in prison. One study estimated that 75 percent of cocaine users were white, were middle class, and held white-collar jobs. Several states passed laws targeting crack cocaine with stiffer penalties similar to the federal law. With police targeting inner-city areas for crack rather than the suburbs where cocaine was the drug of choice, the resulting drug arrest rates were five times higher for minorities than whites.

The overall prison population increased 84 percent in the ten-year period from 1985 to 1995 with drug offenders comprising half of the increase. Some 80 percent of drug offenders convicted and sentenced under the stiffer laws were black. Incarceration of blacks for drug offenses increased 465 percent in contrast to 111 percent for whites. The number of black women incarcerated in state prisons increased 828 percent. Over 85 percent of those convicted of crack cocaine sales or possession were black. A number of federal court districts prosecuted only crack cocaine cases involving minorities. In addition to those convicted, blacks were six times more likely to be sentenced to mandatory prison terms than white offenders.

In Minnesota, a state court ruled the state antidrug law was racially discriminatory after statistics showed the incarceration rate for blacks between 1988 and 1994 was 100 percent compared to 75 percent for whites.

For More Information


Benjamin, William P. African Americans in the Criminal Justice System. New York: Vantage Press, 1996.

Collins, Catherine F. The Imprisonment of African American Women: Causes, Conditions, and Future Implications. Jefferson, NC: McFarland, 1997.

Jones-Brown, Delores. Race, Crime, and Punishment. Philadelphia, PA: Chelsea House, 2000.

Kennedy, Randall. Race, Crime, and the Law. New York: Vintage Books, 1998.

Levin, Jack. The Violence of Hate: Confronting Racism, Anti-Semitism, and Other Forms of Bigotry. Boston, MA: Allyn and Bacon, 2002.

Mauer, Marc. Race to Incarcerate. New York: Free Press, 1999.

Russell, Katheryn. The Color of Crime. New York: New York University Press, 1998.

Web Site

"Arrest the Racism: Racial Profiling in America." American Civil Liberties Union (ACLU). http://www.aclu.org/profiling (accessed on August 20, 2004).

Additional topics

Law Library - American Law and Legal InformationCrime and Criminal Law