Disparity And DiscriminationEssay Preview: Disparity And DiscriminationReport this essayDisparity and discrimination are similar in that when referring to these terms they both mean inequality or lack of similarity. However, there is a difference in these meanings in the context of the criminal justice system. When evaluating these terms as they relate to the criminal justice system, disparity and discrimination of racial and ethnic groups has been recognized by many for some time. In some situations disparity can be a result of discrimination in the justice system. Disparity refers to inequity of all aspects of the criminal justice system, from arrests to sentencing for certain groups of people; it nearly always refers to racial and ethnic disparity. Racial disparity in the criminal justice system is present when the proportion of a racial or ethnic group within the control of the system is greater than the proportion of such groups in the general population (The Sentencing Project, 2008). Racial disparity has been definitively established, though it may not always be related to intentional discrimination. Discrimination, on the other hand, is a distinction based on the personal characteristics of an individual resulting in some disadvantage to that individual (Law Encyclopedia, 2011).
To better understand the differences between disparity and discrimination, researchers have created a discrimination/disparity continuum regarding processing in the criminal justice system. There are five elements on the spectrum, ranging from the highest levels of discrimination to no discrimination at all. These elements range from systematic discrimination, institutionalized discrimination, contextual discrimination, individual acts of discrimination, and pure justice (Law Encyclopedia, 2011). “At one end of the spectrum, pure justice, there is no racism in the system, and longer sentences and higher rates of incarceration for members of minority groups result purely from higher rates of criminal involvement” (Law Encyclopedia, 2011, para. 10). At the other end, systematic discrimination suggests that decisions are made according to racist assumptions and those members of minority groups are always discriminated against at every stage of the process. The in-between points on the spectrum represent varying levels of discrimination, and this would result in institutional terms that work to the disadvantage of minorities (Law Encyclopedia, 2011).
When considering discrimination in the court system, there is a distinctive composition of racial and economic structure in the United States that systematically put people of color at a disadvantage, and some of these disadvantages carry over to the criminal justice system. For instance, minority defendants are more likely to be poor and therefore less likely to be represented by private attorneys or be released before trial (Law Encyclopedia, 2011). There is extensive research indicating that members of minority groups do not, statistically, meet with the same results as white people in the judicial system (Toth, Crews, & Burton, 2008). Although, these may not be cases of intentional discrimination, studies have shown that there is sufficient evidence that, controlling for other relevant factors, African Americans and Latinos are more likely to be incarcerated than whites and, and in some jurisdictions, receive longer sentences (The Sentencing Project, 2008).
In summary, the Supreme Court of the United States of America has held that private attorneys and defendants are constitutionally protected from discrimination. This has led a number of civil rights organizations to seek and make changes in terms of the procedures of judicial review, such as requiring that private attorneys, as prosecutors or judges, determine all available facts and to require them to present all available evidence. These changes have included:
Clarifying that private attorneys, at their discretion, may choose not to provide witness testimony when, however, it would be contrary to the interests of the accused or their legal representation, including a desire to preserve the public’s interest in the trial process (Wiebe M).
Increasing the capacity of prosecutors and judges to use their discretion, rather than just to identify the accused and to use their resources wisely, and reducing the scope of their time and resources for prosecuting those who could testify as well (Toth, &).
Binding of parties and the state courts not to require that the accused identify and explain under oath to a witness when they appear before the trial judge (Toth, &).
Dismalizing that the decision to make or not to make changes to the state’s legal system undermines justice (Toth, &).
The Supreme Court has also held that “the constitutionality” of private attorneys’ and judges’ choice not to provide evidence of such conduct is simply inadequate to make it constitutionally protected under the due process clause of the Fourteenth Amendment (U.S. v. Walker, 3 Wheat. 2d 604, 812, 728 P.2d 704). Such an approach to the trial process may be particularly pertinent when it is necessary to protect the public safety in the absence of the criminal investigation and if the decision is not challenged or challenged within the limits of the law (Toth, & Toth et al., 2012). It is unlikely that any justice in the U.S. legislature will rule that a private attorney’s decision to provide testimony of nonconsensual consent would violate section 120301, which allows an action under common law to be brought under public action.
References
Akin, S., Kromer, R., Renschke, O., Linnell, R., & DeFelice, J. (2009). The Constitution and the Bill of Rights. New York: Basic Books, Inc, pp. 715–8.
Adenbach, J., Purdy, C., Linnell, L. C., Linnell & R. E. Martin (2006). The Constitution and Courts: The Case for and Against the Judicial System. Indianapolis, IN: Greenwood Press, pp. 1479–1600.
Akron, B. M. (1976). “The Law of Judicial Conduct in Massachusetts (1789-1960).” Public Law 86 p. 1141.
Barak, A. R. (1974). The Impact of the First and Fourteenth Amendments on Early Criminal Trial. New York: Praeger, pp. 179–190.
Barak, A. R., & A. S. Kahl, eds. (1975). “A Critique of the Legal Theory of Early Criminal Trial” Administrative Law Review 2–6 (3.).
Blanchard, J. A., & J. D. Stigler, eds. (2005) The Supreme Court and Judicial Conduct: A Study of the Effects of the Third Amendment to the U.S. Constitution. Detroit, MI: University of Michigan Press, pp. 581–591.
Blank, D. W., & Smith, A. S. (2002). “The American Trial System and the Criminal Justice System,” American Journal of Political Economy 61 (1): 25–39.
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Racial disparities in the court system can occur when the dissimilar treatment of similarly situated people based on race takes place. Professionals in criminal justice differentiate between legal and extralegal factors to explain racial disparities in criminal justice (Cliffnotes, 2011). Legal factors provide valid explanations of an offenders criminal activities, the seriousness of an offense, and any prior criminal record. These are legitimate reasons for disparities because they are relevant to an individuals criminal behavior. Extralegal factors include race, class, and gender. These are not legitimate causes to base decisions, because these factors only relate to group membership rather than criminal behavior (Cliffnotes, 2011). However, it should be clear that deciding sentences based solely on legal
trivial factors does not take into account the criminal justice process that determines an individual defendant’s race, ethnic, or religious affiliation or disability. Although these factors include a variety of factors (including race, class, and gender), one is crucial: Race. In deciding criminal appeals, judges must look at race and the other criminal factors. In other words, race matters for the legal decision to be made. Race, class, and gender are important factors. Race means different things to different individuals. But it does not differentiate them in the way that it seems to do before.
Race is not a factor in the criminal appeals process, but that does not mean that racial differences are not fundamental to decision-making. Historically, states have tried to avoid racial disparities in sentencing and for sentencing. In 1989, Louisiana passed SB 944, which gave an individual the right to have his or her right to seek a state court judge’s sentence if such a sentence was unfavorable for the interest of justice. The Louisiana Supreme Court stated that “[i]n any case involving sentencing or mandatory minimum sentencing, the courts must consider all relevant factors… and the factors to be considered will need to bear on the merits of the case in evaluating a decision as to sentencing for the particular offense, the individual, and the family members. ” A Louisiana court must consider all relevant factors. For a criminal sentencing judge to decide the merits of a case, the judge must consider and analyze whether the sentencing process is appropriate (Fletcher, 2014) and the court’s policy needs to be more flexible (Mackford, 2015) and reflect the needs of the justice system in the area of family law (e.g., Blackberry v. Northridge and Northridge v. United States).
A similar problem exists in other criminal justice systems (Dalhuis and Schleuwie, 2011), so the courts and judicial system should always consider race. They also are important for their effectiveness in determining the level of penalty and sanctions the judge ought to impose.
In the criminal appeals system, the justice system has been largely successful since the 1970’s. Although the Supreme Court noted that the justice system serves as a tool to address issues of race and race-based disparity in sentencing and of the justice system’s effect on race, it has often neglected the racial disparity in criminal sentencing (cf. R. & E.B.R. v. State of Illinois, 1985, ¶ 6). We emphasize that the Supreme Court recognized racial disparities in sentencing and sanctions but did not address the question of whether the justice system serves to address the problem. In R. B.F.D. v. New York City (1970), the Court stated that “[f]reedom of race in the system is not a function of any race or race or race-based imbalance in the system that exists primarily to make it more likely that an offender is charged with felony or civil for his or her race.”
We believe that the only way to address racial disparities in criminal justice—whether in the federal criminal justice system, state, state courts, or an individual’s state or local jurisdiction—is to focus on identifying and addressing the underlying causes of the disparities. It is important to define the issues and factors for sentencing under the federal criminal justice system when deciding whether to grant
t is not sufficient to explain disparities in criminal justice with respect to any one group. For that reason, in criminal cases the legal factors determining the appropriate sentence should be examined. Specifically, a judge may consider the seriousness of a criminal offense to determine sentence length and may consider whether the person involved in the crime was involved in, or was convicted of, the crime. This approach may also include reviewing the factual record of witnesses, evaluating legal information, and determining whether it is true that the person involved in the crime received appropriate treatment, or both. A jury in criminal court may find that the defendant met his or her burden if he or she had a valid cause to believe that the criminal conduct on which the defendant was charged in this case was, or was not, serious or considered serious to justify the sentence. (See the “Case law” section for more information.) When a jury decides that the defendant was guilty, a trial judge may consider the seriousness of the charges and the fact that the defendant was responsible. (See “Guilty to misdemeanor” section for a detailed discussion of this question.) If a prosecutor determines, through a thorough inquiry, that the defendant committed the crime, and the charge has been proven to be a serious offense, it might take a jury of three or fewer. A court may decide only once in the jury’s absence. If the jury finds the defendant committed one or more charges, then the prosecutor is guilty of filing a false jury summons, or charging with contempt of court a criminal act committed on the defendant, or both. In addition to the usual questions about whether the defendant committed one or both charges, the prosecutor may consider a different element of the offense at trial. The relevant element to make a reasonable finding of the defendant’s guilt can include the presence of drugs, alcohol, or other drugs. It is unclear who will be able to prove such a connection, but it is likely that it will be a person who possesses or possesses a controlled substance, or is under the influence of alcohol, marijuana, or other illegal drugs (Cliffnotes, 2010; Robinson et al., 2009). Therefore, in criminal cases, it is important to consider the severity of the drug’s effects for a variety of reasons. (See the “Dirty Driving” section for details.) A high-level prosecutor may consider the defendant as a potential subject of diversion by not only the court, but also within the State, and it may take three or more states in which the defendant lives to find a higher degree of diversion. In Arizona, the Supreme Court has addressed DUI that results in impaired driving charges and is split on the question of whether to consider the defendant as a defendant in a separate case. The Court concludes that only a defendant in a DUI case would have a “high-level” intent because that defendant does not have a blood alcohol content of 0.08% or greater and is not capable of being impaired. The State makes the distinction only with respect to the defendant’s driving history, and it must be carefully considered in determining whether an accused defendant would have a constitutional right to be considered if the court had determined or decided in the defendant’s favor. See also “Ex-intragenarian” section. However, it could lead to an impairment-based conviction if there were other factors beyond the defendant’s normal driving record to demonstrate a
t is not sufficient to explain disparities in criminal justice with respect to any one group. For that reason, in criminal cases the legal factors determining the appropriate sentence should be examined. Specifically, a judge may consider the seriousness of a criminal offense to determine sentence length and may consider whether the person involved in the crime was involved in, or was convicted of, the crime. This approach may also include reviewing the factual record of witnesses, evaluating legal information, and determining whether it is true that the person involved in the crime received appropriate treatment, or both. A jury in criminal court may find that the defendant met his or her burden if he or she had a valid cause to believe that the criminal conduct on which the defendant was charged in this case was, or was not, serious or considered serious to justify the sentence. (See the “Case law” section for more information.) When a jury decides that the defendant was guilty, a trial judge may consider the seriousness of the charges and the fact that the defendant was responsible. (See “Guilty to misdemeanor” section for a detailed discussion of this question.) If a prosecutor determines, through a thorough inquiry, that the defendant committed the crime, and the charge has been proven to be a serious offense, it might take a jury of three or fewer. A court may decide only once in the jury’s absence. If the jury finds the defendant committed one or more charges, then the prosecutor is guilty of filing a false jury summons, or charging with contempt of court a criminal act committed on the defendant, or both. In addition to the usual questions about whether the defendant committed one or both charges, the prosecutor may consider a different element of the offense at trial. The relevant element to make a reasonable finding of the defendant’s guilt can include the presence of drugs, alcohol, or other drugs. It is unclear who will be able to prove such a connection, but it is likely that it will be a person who possesses or possesses a controlled substance, or is under the influence of alcohol, marijuana, or other illegal drugs (Cliffnotes, 2010; Robinson et al., 2009). Therefore, in criminal cases, it is important to consider the severity of the drug’s effects for a variety of reasons. (See the “Dirty Driving” section for details.) A high-level prosecutor may consider the defendant as a potential subject of diversion by not only the court, but also within the State, and it may take three or more states in which the defendant lives to find a higher degree of diversion. In Arizona, the Supreme Court has addressed DUI that results in impaired driving charges and is split on the question of whether to consider the defendant as a defendant in a separate case. The Court concludes that only a defendant in a DUI case would have a “high-level” intent because that defendant does not have a blood alcohol content of 0.08% or greater and is not capable of being impaired. The State makes the distinction only with respect to the defendant’s driving history, and it must be carefully considered in determining whether an accused defendant would have a constitutional right to be considered if the court had determined or decided in the defendant’s favor. See also “Ex-intragenarian” section. However, it could lead to an impairment-based conviction if there were other factors beyond the defendant’s normal driving record to demonstrate a
t is not sufficient to explain disparities in criminal justice with respect to any one group. For that reason, in criminal cases the legal factors determining the appropriate sentence should be examined. Specifically, a judge may consider the seriousness of a criminal offense to determine sentence length and may consider whether the person involved in the crime was involved in, or was convicted of, the crime. This approach may also include reviewing the factual record of witnesses, evaluating legal information, and determining whether it is true that the person involved in the crime received appropriate treatment, or both. A jury in criminal court may find that the defendant met his or her burden if he or she had a valid cause to believe that the criminal conduct on which the defendant was charged in this case was, or was not, serious or considered serious to justify the sentence. (See the “Case law” section for more information.) When a jury decides that the defendant was guilty, a trial judge may consider the seriousness of the charges and the fact that the defendant was responsible. (See “Guilty to misdemeanor” section for a detailed discussion of this question.) If a prosecutor determines, through a thorough inquiry, that the defendant committed the crime, and the charge has been proven to be a serious offense, it might take a jury of three or fewer. A court may decide only once in the jury’s absence. If the jury finds the defendant committed one or more charges, then the prosecutor is guilty of filing a false jury summons, or charging with contempt of court a criminal act committed on the defendant, or both. In addition to the usual questions about whether the defendant committed one or both charges, the prosecutor may consider a different element of the offense at trial. The relevant element to make a reasonable finding of the defendant’s guilt can include the presence of drugs, alcohol, or other drugs. It is unclear who will be able to prove such a connection, but it is likely that it will be a person who possesses or possesses a controlled substance, or is under the influence of alcohol, marijuana, or other illegal drugs (Cliffnotes, 2010; Robinson et al., 2009). Therefore, in criminal cases, it is important to consider the severity of the drug’s effects for a variety of reasons. (See the “Dirty Driving” section for details.) A high-level prosecutor may consider the defendant as a potential subject of diversion by not only the court, but also within the State, and it may take three or more states in which the defendant lives to find a higher degree of diversion. In Arizona, the Supreme Court has addressed DUI that results in impaired driving charges and is split on the question of whether to consider the defendant as a defendant in a separate case. The Court concludes that only a defendant in a DUI case would have a “high-level” intent because that defendant does not have a blood alcohol content of 0.08% or greater and is not capable of being impaired. The State makes the distinction only with respect to the defendant’s driving history, and it must be carefully considered in determining whether an accused defendant would have a constitutional right to be considered if the court had determined or decided in the defendant’s favor. See also “Ex-intragenarian” section. However, it could lead to an impairment-based conviction if there were other factors beyond the defendant’s normal driving record to demonstrate a