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In the contemporary world, especially in developed countries such as the USA, racism is traditionally considered a remnant of the past and a phenomenon that marks a tragic period in the country’s history. Meanwhile, the modern way of life is typically supposed to be free of any manifestations of racism. However, the reality is drastically different from what it is supposed to be, and racism remains a key part of modern society despite numerous efforts aimed at eliminating it in all domains of life. Besides, contemporary racism is usually covert by nature and is not as explicit and evident as it used to be in the past. Consequently, it has become even more difficult to be revealed and effectively addressed. A sphere, in which racism has the most detrimental outcomes for the well-being and even life of stakeholders in the criminal justice system. Researchers and other interested parties have repeatedly emphasized that the U.S. criminal justice system is racist by nature and that representatives of ethnic and racial minorities are overrepresented in the system as compared to the White majority. Furthermore, racism is present at all levels of the criminal justice system, starting from policing that is claimed to be based on racial profiling and ending with the system of capital punishment. In the latter, racism has the most adverse consequences for the minorities since it means death for them more often than for the White criminals. Even though they both have committed the same crimes, yet the last tend to receive more lenient punishments. Hence, the current paper aims at studying the topic of racism in America’s criminal justice system with a particular focus on the capital punishment system and manifestations of racism within it. Respectively, the research question to be answered is the following: Is the criminal justice system biased and/or designed to protect the wealthy? Prior to conducting the study based on extensive research and critical analysis of credible sources addressing the issue under consideration, it is hypothesized that the U.S. criminal justice system is racist. It will be evident from the discussion of racism in capital cases, which have negative outcomes for the representatives of ethnic and racial minorities.

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Racism in the U.S.

Theoretical Considerations of the Issue

Several different theories and philosophies of punishment are applicable to the study on racism in the criminal justice system of the USA. However, the current paper will use primarily the Marxist tradition, in particular the Social Conflict Theory, for discussing the topic of racism in the system along with a brief overview of some non-Marxist perspectives that seem to be applicable. The main premise of the selected perspective is the claim that the capitalist system is a major cause of crime, while capital punishment can be considered as a demonstration of the specific White power. These and other premises are discussed in more detail below.

In fact, it should be noted that Marx did not pay particular attention to the law separately from his discussion of the state. Therefore, it has to be aggregated based on several of his writings. Marx did not provide a definition of the law, but rather focused on how it was created; moreover, he was interested in how the law could be the manifestation of the ideology (Lord Lloyd of Hampstead, 1979). According to Marx, “One of the main functions of law is to obscure power relationships” and “the legal form will refer to the right to enter freely into contracts but in the absence of equality of bargaining power this freedom is illusory”, while “the legal form is an ideological cloak” (Lord Lloyd of Hampstead, 1979, p. 733). The law can pretend to be neutral, yet it is significantly influenced and defined by the existing power relationships in society. Thus, it serves mainly to legitimate the position of the wealthy, property owners, and capitalists while failing to provide ordinary workers and the poor even with the semblance of equal rights that are guaranteed and safeguarded by the law. These Marxist views on the law and its relation to the state have served as a foundation for the development of the Social Conflict Theory.

The Social Conflict Theory argues that the law, including its content and enforcement of this content, is a manifestation and result of the interests and values of the social group that holds the most power in the society. Respectively, “Those who produce legislative majorities win control over the police power and dominate the policies that decide who is likely to be involved in a violation of the law” (Vito & Maahs, 2017, p. 171). Hence, any violation of the law is a direct consequence of the conflict that exists in the society between the dominant social group and the rest. In such a manner, supporters of this theory do not strive to find out why people commit crimes but focus on determining why some acts are considered illegal and how the dominant social group promotes its interests and values by shaping the law. The dominant social group can acquire more power than the rest based on its gender, race, and social class. With respect to the USA, the dominance is usually attributed to the “white, male, and wealthy,” who have “more power than those who are poor, from a minority group, or female” (Vito & Maahs, 2017, p. 171). Under the Social Conflict Theory, the conflict is also present in the law, especially with regards to how individuals that break the law are punished based on their social class, race, and gender. Moreover, a social group that is in power and can be considered dominant not only shapes the law with a view to promoting its interests and values but also influences the way how the law is being enforced, in other words, its power over the criminal justice system (Vito & Maahs, 2017). Hence, the criminalization of representatives of particular social groups is based not on their particular conduct and deeds, but rather on their relationships with individuals in power.

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In line with the Social Conflict Theory, some differences in the criminalization of different social groups result in the presence of bias in the criminal justice system against those groups that lack power. It is possible to reveal this bias by finding out whether representatives of the less powerful social groups (racial and ethnic minorities, as well as the poor) get to be treated in a harsher way than representatives of the dominant and powerful group (the Whites)` in the criminal justice system (Vito & Maahs, 2017). Racism becomes evident after the analysis of the arrest and incarceration statistics that can prove that racial and ethnic minorities are really overrepresented at all stages of the criminal justice system. Hence, as of 2012, the White US citizens were imprisoned at the rate of 463 persons per 100,000, while African Americans were imprisoned at the rate of 2,841 per 100,000, and Hispanics were imprisoned at the rate of 1,158 per 100,000 (Vito & Maahs, 2017, p. 173). This way, the imprisonment rate seems to prove the conflict theory. However, at the same time, men are imprisoned more often than women; this fact contradicts the theory.

Hence, the Social Conflict Theory postulates that “extra-legal factors (e.g. race, class, and gender) have a substantial impact on criminal justice system decision-making, regardless of legal factors such as offense seriousness and prior record” (Vito & Maahs, 2017, p. 174). With respect to the issue under consideration, the theory states that the race of defendants influences the capital punishment rate regardless of the criminals’ prior record and is more influential than the offense severity. Nonetheless, the research that is focused on studying relations between the race and the criminal justice system is extremely complex and difficult to conduct because of the presence of various factors that need to be taken into account. Besides, most studies focus on racial profiling, while studies that research racism in capital punishment with the application of the Social Conflict Theory are less numerous. Most researchers operating on the premises of this theory apply the racial threat hypothesis, under which, it is hypothesized that the “increases in minority populations relative to the white population will provoke racial fear and prejudice and increase punitive criminal sanctions” (Vito & Maahs, 2017, p. 175). Overall, there is mixed evidence under this hypothesis, but most researchers agree that race is a significant factor that influences decisions at all stages of the criminal justice system.

Thus, race plays a prominent role in capital sentencing and has been revealed considered a factor that influences capital punishment case outcomes in the USA. In fact, even the Supreme Court justices have voiced their concerns about the racial bias in the capital sentences, for instance, in Furman v. Georgia, which was the first court case that raised the question of racial bias (Vito & Maahs, 2017). The ruling in the 1972 case emphasized that decisions in capital cases were largely arbitrary and displayed evident discrimination and prejudice (Shaked-Schroer et al., 2008). This decision has stopped executions in the country for four years until the rules governing the decision process were partially revised, and the Supreme Court ruled in Gregg v. Georgia that the capital punishment as such was not unusual and cruel, which reinstituted the practice all over the country (Young, 2004). However, since then researchers have conducted a large number of studies showing that there really exists a racial bias in cases of the capital punishment with the most recent ones indicating that the race of the victim plays the key role in the process of decision-making in such cases (Young, 2004). Respectively, if the victim is White, the defendant is more likely to be sentenced to capital punishment than the life sentence without parole than in the case of the victim being a representative of some racial minority. This likelihood of receiving the death penalty increases even more if the victim is a White and the defendant is an African American. Irrespective of the evidence presented by numerous studies, courts have repeatedly ruled that it is not sufficient to prove the existence of a systemic racial bias in the criminal justice system (Young, 2004). This way, a hypothesis of the Social Conflict Theory about the existence of power disparities and the resulting racial bias in the criminal justice system is justified with extensive evidence.

However, not all researchers and scholars support the Social Conflict Theory in their studies that aim at revealing the racial bias in the criminal justice system. Some of them, for example, Lynch (2013), believe that racial bias cannot be revealed with the help of the sociological or psychological theories only. In turn, they claim that it is necessary to combine different views and theoretical perspectives in order to receive a viable model applicable to the research of the issue. Hence, Lynch (2013) offers building this model on the foundations of the critical race theory, under which, the race “is understood as a social category for which its meanings emerge from both historical and ongoing social and structural relations, and race organizes and hierarchizes those relations accordingly” (Lynch, 2013, p. 103). Further, Lynch (2013) suggests adding key provisions of the cognitive psychological perspectives on racism in terms of viewing the phenomenon as an integral part of the individual mind that is, in turn, a result of an influence on the collective view of racism in the society. Lynch (2013, p. 109) calls the suggested combination of theories the integrated theory of institutional bias that is aimed at explaining “how individual actors – as situated in the context of legal organizations – generate racialized outcomes.” The main dimension of the institutional bias theory selected by Lynch (2013, p. 110) is the script institutionalism, which means a process when institutional actors develop a “set of stock prescriptions of conventional action” that is largely unconscious in terms of either the meaning or consequences, as well as path institutionalism that focuses on “the constraints and boundaries of institutional decision-making while allowing for more thoughtful and autonomous action.” Lynch (2013) also suggests adding to this institutional bias theory such components as empathy and trigger points. Overall, this theory seems to be more complicated than the Social Conflict Theory discussed above, yet it is also applicable to the study of the issue under consideration.

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Racism in the U.S. Criminal Justice System Is Really Racist as Evidenced from the Empirical Studies

The above mentioned theoretical considerations about the presence of the racism and racial bias in the US criminal justice system are supported with evidence obtained from empirical studies that focus on the capital punishment system like the one where racism has the most adverse and irreversible consequences. Hence, after analysis of the existing capital punishment legislation and past cases, as well as their comparison with the drug trafficking statutes, Lynch (2013) arrives at the conclusion that the racial bias is institutionalized in the criminal justice system. One of the less obvious manifestations of racism in the capital punishment system is the inclusion of a prior criminal record as an aggravating factor that can elevate the punishment from the life sentence to the death penalty (Lynch, 2013). Since racial minorities tend to have a higher crime rate, this rule is against them. A more prominent and obvious manifestation of institutional bias concerns the presence of the death qualification of the sentencing body (Lynch, 2013). This qualification means that potential jurors have to be open to the possibility of sentencing a defendant to the capital punishment, while individuals, who are strongly against or doubtful about the capital punishment are not allowed to be jurors in such cases. This institutional bias is also racial by nature since studies show that representatives of racial minorities tend to be more sympathetic to defendants and less supportive of capital punishment while being more likely to opt for a life sentence without parole (Lynch, 2013). Therefore, representatives of racial and ethnic minorities lack the death qualification and are less represented in juror bodies; thereby, they increase the chances for capital punishment sentences for their counterparts.

In fact, this death qualification of the sentencing body as a manifestation of racial bias in the penalty phase of capital trials has been widely studied by researchers. Shaked-Schroer et al. (2008) consider it a potential field for eliminating the bias. Hence, their study (Shaked-Schroer et al., 2008) has revealed that there is a statistically significant relationship between the race of the defendant, type of the instruction given to jurors, a race of the potential juror, and sentence recommendations. The researchers have proved that there are no differences in sentence recommendations given by jurors, who received standard instructions when the defendant was white, but in the case of African American defendants with all other variables being the same, jurors tend to give more capital punishment recommendations (Shaked-Schroer et al., 2008). However, this racial bias can be reduced by simplifying instructions given to jurors before they deliberate on the case and issue their recommendations as in the case there have been found no statistically significant differences in recommendations given with respect to the White and African American defendants. It shows that jurors may lack comprehension of instructions and incorporate their racial stereotypes into the process of decision-making unless they are explicitly told that the race cannot be a factor influencing their decision. Another essential finding of Shaked-Schroer et al. (2008) is the fact that racial bias in capital punishment recommendations is less prominent when jurors are racially and ethnically diverse. In turn, when jurors are represented by Whites in the majority, the racial bias tends to be more pronounced as African American defendants are more likely to receive a death penalty recommendation than the White defendants are (Shaked-Schroer et al., 2008). This finding has serious implications for practice since, currently, most juries in the USA are composed of the Whites because representatives of this race tend to have a higher death qualification mentioned above than representatives of other ethnic and racial groups.

The death qualification of jurors and respective racial basis in the criminal justice system with respect to capital punishment cases depend on their racist sentiment and core values such as individualism, egalitarianism, authoritarianism, and symbolic patriotism. These values result in the emergence of the racial divide between representatives of different racial and ethnic groups (Buckler et al., 2008). Thus, it has been empirically proved that the racist sentiment partially accounts for differences between the African Americans and Whites in their support of capital punishment (Buckler et al., 2008). The Whites tend to be convinced that African Americans are culturally inferior since they have not worked hard enough to achieve the socio-economic success in the country, which partially justifies their support for capital punishment in cases when defendants are African Americans. Besides, the core values mentioned above have a more pronounced influence on the Whites’ attitudes to capital punishment than those held by other racial minorities. Since the Whites support individualism, they tend to consider the capital punishment legitimate and rely on the racist sentiment when making decisions in such cases since “White individualists view African Americans as squandering social service opportunities provided by the government” (Buckler et al., 2008, p. 163). The racial divide is also partially explained through the patriotic symbolism as individuals who display this value, which is more common for the Whites than African Americans in the USA, tend to support the capital punishment and rely on their racial prejudice when deciding on which defendants should receive the harshest punishment and which can be sentenced to the life imprisonment. Hence, “for the White symbolic patriot, serious crime is likely viewed as an affront, not simply to the individual victim, but to the nation, and therefore, should be dealt with in a serious manner,” and Whites tend to consider all crimes committed by the African Americans against Whites more serious than most crimes committed by Whites (Buckler et al., 2008, p. 164). In turn, even though African Americans score higher on authoritarianism, they display less support for capital punishment. However, it may be explained by the lack of extension of their informal family authoritarianism beliefs to the formal criminal justice system (Buckler et al., 2008). On the contrary, the Whites’ informal authoritarianism beliefs tend to get extended to the formal criminal justice system, which partially explains their support for capital punishment. This way, there is a statistically significant correlation between the racist sentiment, core values, and support for capital punishment that is racially divided and stronger in the Whites.

In fact, Young (2004) claims that authoritarianism can be extended to and associated with the tendency to see the world as a dangerous place and stronger conviction of individuals, who cannot control themselves and commit crimes thereby making the world even more dangerous. This negative view of human nature is translated into stronger support for capital punishment. However, this view is largely racist by nature since the Whites tend to believe either implicitly or explicitly in the cultural inferiority of racial minorities and their high likelihood of engaging in the criminal activity as a means of getting easy money instead of working hard in order to reach success (Young, 2004). These beliefs also translate into a strong preference of the White respondents “for convicting an innocent defendant over letting a guilty one go free” and this attitude is “more characteristic of those who are, than those who are not, likely to be allowed to serve on capital juries” (Young, 2004, p. 164). Hence, the death qualification of jurors envisions their strong support for capital punishment for all defendants that violate the law and especially for the African American ones that are perceived to be the most dangerous criminals. This bias explains why African Americans are overrepresented on the death row as compared to the Whites while taking into consideration that the former are a minority in the population.

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Since representatives of racial minorities are disproportionately more likely to receive capital punishment than the White defendants, their respective communities suffer from racism in the criminal justice system than the society as a whole. This way, racism pertaining to death penalty cases has significant adverse impacts on families, friends, and communities of prisoners on the death row, almost a half of whom is represented by the African Americans (Schweizer, 2013). Besides, African American defendants are 38% more likely to be sentenced to capital punishment than other individuals, who have committed similar crimes. It means that the African American community constantly faces higher chances of being stigmatized because of the created perception that it produces violent and dangerous criminals (Schweizer, 2013, p. 93). Such stigmatization negatively affects the image of the community and contributes to the reinforcement of existing racial stereotypes. Negative impacts of racism in the criminal justice system are also evident at the family and individual levels among friends and relatives of individuals that are sentenced to capital punishment. These impacts may include physical consequences, for example, suicide, and psychological outcomes, including depression, anger, PTSD-like experiences, and the like. The African Americans suffer from these consequences more often than the Whites because representatives of their racial group tend to receive more capital punishment verdicts than other groups in the USA. Therefore, racism in the U.S. criminal justice system negatively impacts not only individuals directly involved with it (defendants) but also their families and communities thereby reinforcing negative racial stereotypes about the African Americans and other racial minorities.


Withal, the above evidence supports the hypothesis that the U.S. criminal justice system is racially biased and is designed to protect representatives of the racial majority (the Whites) while discriminating against racial minorities with African Americans being the most disadvantaged group. Hence, the evidence supports the Social Conflict Theory with respect to the race, yet it does not support the theory with respect to bias based on gender since there is no conclusive evidence on the relation between the bias and social class. However, it can be argued that since racial minorities tend to represent working and lower social classes, the Social Conflict Theory seems to be right in this respect, as well. Although most researchers prove the existence of the racial bias in the criminal justice system, especially with respect to capital punishment cases, courts tend to disregard such findings. Therefore, it is necessary to develop means of minimizing and subsequently eliminating the racial bias from the criminal justice system with a view to ensuring that all U.S. citizens are equally and fairly treated by the system and receive punishments they deserve.

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