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Running Head: CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
Criminal Justice System and Critical Race Theory
Name
Institution
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
Abstract
This paper examines the criminal justice system through the lens of critical race theory as
comprised in the United States and its web of interconnectedness and whether its design meets
the standard of substantive justice in balancing minority individual rights with the government’s
obligations to promote and protect individual and social rights by engaging in due process.
Critical race theory posits that it is crucial to understand the intersection of race, ethnicity and the
criminal justice system in order to understand the cycle of crime, poverty and incarceration
among the minority communities in the United States. Racial bias in the criminal justice system
has been characterized by charges of police brutality and visible allegations of over prosecution
of minority communities. In light of the death of George Floyd, a harmless black man who died
at the hands of the police in the summer of 2020, race and racism have been central in
demonstrations, protests and movements that have opposed and seek to end police brutality and
issues surrounding systemic racism in the criminal justice system such as over prosecution and
high incarceration rates of minority communities. This paper seeks to elucidate how the criminal
justice system responds to the charge of visible minority community of police brutality and over
prosecution by looking at the US criminal justice system by exploring race as a social construct
and how racial bias is used as a social control tool in order to propose possible reforms in the
criminal justice system that will aid in the protection of minorities and achieve standards of
substantive justice
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
Introduction
The criminal justice system consists of government and private institutions tasked with the
responsibility of prosecuting and convicting criminals. The criminal justice system is built on a
series of interconnected pillars, including academia, police departments, forensic agencies, the
judiciary, and correctional and rehabilitation institutions. These pillars are designed to uphold
legal justice ideals. Constitutional safeguards and protections can not be granted or safeguarded
without the unwavering devotion of individuals who work in the criminal justice system. As a
result, such professionals must adhere to the criminal justice system’s ethical norms and maintain
a consistent level of integrity and maturity in their character to avoid what has been seen as the
criminal justice system’s bias and discrimination against minority communities expressed
through cases of police brutality and over prosecution.
The founding fathers of the United States firmly asserted that “all men are created equal”(Feagin,
2013). However, African Americans, native Americans and women were left out of the country
being created. The new nation was thus designed to create social and financial dominance for
whites while oppressing the minority communities through legal segregation and the criminal
justice system. In developing a theory of systemic racism, Joe Feagin states that to understand
the modern caste system, there is a need to comprehend how race influences the character,
structure and development of society to create systemic racism that has been used to socially
exclude and marginalize the minorities and is embedded in the criminal justice system(Feagin,
2013).
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
The Criminal Justice System in the US
The criminal justice system in the United States exists to enforce the country’s legal
code(Neubauer & Fradella, 2018). It consists of the judiciary, the police department, and the
corrections system. A criminal justice system, at the least, should exhibit through the use of a
reputable code of conduct, such values as competence, dependability, transparency,
accountability, and trustworthiness(Neubauer & Fradella, 2018). The criminal justice system
functions through the coordination of these distinct institutions to make offenders and criminals
pay for their criminal acts while delivering justice and compensation to the victims.
The three distinct parts of the criminal justice system are law enforcement, adjudication and
corrections(Neubauer & Fradella, 2018). In the United States, the police are a civil agency
charged with the responsibility of enforcing laws and maintaining order at the local, state and
federal levels. The United States lacks a singular national police force, despite the presence of
federal law enforcement agencies. Federal agents work for certain government officials,
including the Federal Bureau of Investigation (FBI); the Bureau of Alcohol, Tobacco, Firearms
and Explosives (ATF); and the Department of Homeland Security (DHS). These federal agents
only have jurisdiction over subjects that are expressly within the federal government’s authority,
and their areas of specialization are typically limited. To put this into perspective, a county
police officer may respond to emergency calls, work at the local jail, or patrol areas as needed,
while, on the other hand, a federal agent is likely to investigate weapons or drug trafficking
suspects.
Detection of a crime marks the first step in law enforcement. It occurs when the responsible law
enforcement agency, whether the police force or the specialized agencies, receives a report from
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
a complainant or a witness, or when a crime perpetrator is apprehended(Samaha, 2000). The law
enforcement officers then check the information provided and conduct the investigation. Law
enforcement officers have an obligation to detain suspected perpetrators, obtain and preserve
evidence, identify the motive of the crime, and compile police reports by summarizing the
investigation’s findings. Their responsibilities include safeguarding the rights of culprits,
claimants and witnesses, as well as performing police operations in accordance with the
applicable law(Neubauer & Fradella, 2018).
A criminal case is adjudicated through the judicial process. Adjudication, in its simplest form,
refers to the legal process through which a court renders judgement on the parties in a
case(Neubauer & Fradella, 2018). As with the criminal justice system’s law enforcement
component, courts are organized at the federal, state and special-jurisdictional levels. The court
process begins with pre-trial services when the prosecutor receives the police report from the law
enforcement agency. The prosecutor then evaluates whether the facts necessitate a criminal case
in which the accused offender would then face charges(Howell, 2014). The prosecutor represents
the victim of the crime and, by extension, the state or community that has been harmed by the
actions of the perpetrator.
The adjudication procedure then proceeds to the arraignment of the suspected offender in court.
At this stage, the suspect is read the charge (s) lodged against them and, as such, becomes a
defendant in the case and has to enter a plea of guilty or not guilty with the assistance of legal
counsel(Neubauer & Fradella, 2018). Following the arraignment, the defendant faces trial to
determine their guilt in cases where a not-guilty plea was entered. If the defendant is found
guilty, they are convicted and the court renders an appropriate sentence.
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
The US court system is adversarial in nature, that is, it involves two-sided arguments between
the prosecution and the defense(Neubauer & Fradella, 2018). The prosecution advocates for the
victim’s interests and, by extension, the society whose rules and regulations the offender has
violated. On the other hand, the defense maintains the criminal’s innocence and works to have
the offender acquitted. A trial frequently results in an appeal during which the party alleged to
have been disadvantaged by the ruling of the court tries to rebalance the odds in a higher court
which either affirms or reverses the lower court’s verdict.
Sentencing refers to the process of imposing a penalty on an offender proven guilty following a
previous trial(Neubauer & Fradella, 2018). The judge imposes the punishment, adhering to set
norms, standards, and guidelines that set limitations on punishment meted on offenders. The
discretion of the judges and the mitigation process also influence the punishment that will be
rendered to the offenders. In the United States, the death penalty is one of the punishments that
can be rendered to a person found guilty of committing a heinous crime, while capital
punishment is rendered on a case-by-case basis. The Federal Death Penalty Act of 1988
sentences all homicide convicts to death while capital punishment is not rendered to convicts as a
practice.
Corrections is the third component of the Criminal Justice System(Neubauer & Fradella, 2018).
While the term "corrections" implies reform and rehabilitation, it also refers to all convicts,
including those on death row(Neubauer & Fradella, 2018). The term "corrections" as used by the
US Federal and state criminal justice systems refers to what many consider to be severe and
merciless "penology". In any event, the correctional component oversees both jailed and
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conditionally released criminals as well as those serving non-custodial sentences but who require
supervision nonetheless.
The correctional network consists of both public and commercial institutions, as well as staff and
other stakeholders who must adhere to administrative legal criteria. The process involves reform
and rehabilitation programs aimed at rehabilitating qualified offenders and preparing them for
readmission and reintegration into society as key and useful members of society.
Critical Race Theory
Critical race theory will underpin this research in examining how the criminal justice system
should respond to the charge of visible minority community of police brutality and over
prosecution in the US. The critical race theory movement is comprised of activists and
intellectuals who are dedicated to examining and reforming the link between race, racism, and
power. It encompasses a broader viewpoint that incorporates history, economics, self-interest,
emotions, and the unconscious into the conventional civil rights discourse. Critical race theory
casts doubt on the liberal order’s core foundations, which are equality, legal reasoning, and
impartial constitutional law principles. Instead, it touches on a range of topics, such as
affirmative action, unfair sentencing of racial minorities in the criminal justice system, and raceconscious policing and districting.
Critical race theory questions the experiences of whites as the social norm and rests its analytical
model on the different experiences of people of color(Delgado & Stefancic, 2017). It creates a
new context that asserts that it is vital to comprehend the social, psychological, and emotional
context of racial oppression to understand the way that subsisting inequities are tied to earlier,
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more insidious forms of racial exclusion(Delgado & Stefancic, 2017). It is on the critical race
theory that Kimberlee Crenshaw developed the related concept of intersectionality.
Intersectionality is a conceptual framework for understanding how a person, a group of people,
or a social situation are impacted by a variety of forms of discrimination(Shields, 2008). It
considers people’s multiple identities and experiences in an attempt to comprehend the
complexities of the prejudices that they face(McCall, 2005).
Propagators of critical race theory acknowledge that the problem of racism cannot be resolved
without first taking note of race and its place as central to the law and structure of the criminal
justice system of the United States(Delgado & Stefancic, 2017). Critical race theory emerged in
the 1970s as a necessary theory to advance the gains of the euphoric accomplishments of the
civil society in the 1960s that had been halted and in ways were being reversed(Delgado &
Stefancic, 2017). Scholars such as Derrick Bell, Alan Freeman and Richard Delgado set their
minds to task by recognizing the necessity for new ideas and ways to counteract emergence of
subtler kinds of racism.
Among the basic tenets of critical race theory is first acknowledging that racism is normal and is
an everyday experience of a majority of colored people in the US. Secondly, critical race theory
recognizes that systemic white-over-color predominance serves critical functions for the majority
group both mentally and materially. The first characteristic of critical race theory recognizes that
racism seen as normal is difficult to treat or heal because it is not recognized(Delgado &
Stefancic, 2017). Therefore, only rules that require uniform treatment of people can remedy the
most egregious forms of discrimination.
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
The second characteristic of critical race theory adds a dimension that because racism benefits
both elites and working-class majority groups materially and psychologically, vast portions of
population are not motivated to abolish it. Derrick Bell surprisingly suggests that Brown v Board
of Education, long seen as a great achievement in civil rights litigation was as a result of the
desire to satisfy the interests of the white elites rather than as a need to assist blacks(Delgado &
Stefancic, 2017).
“Social Construction, a third tenet of critical race theory asserts that the idea of race and races is
a creation of social cognition and connections(Delgado & Stefancic, 2017). These ideas are
social constructs invented by society to maintain social control and are abandoned as convenient.
Society routinely disregards that skin tone account for a negligible proportion of a person’s traits
and behaviors. The concept of differential racialization is also another concept of critical race
theory. The dominant culture racializes distinct minority groups at various points in time in
response to evolving requirements that benefit the majority(Delgado & Stefancic, 2017).
The concepts of intersectionality and antiessentialism are inextricably linked to differential
racialization. Critical race theory refutes that no individual possesses a single, easily articulated,
unitary identity. Every individual has many, potentially contradictory identities, loyalties and
allegiances. Finally, there is the concept of a distinct black voice. This notion asserts that
minority status implies a presumption of capacity to speak on race and racism.
Minorities in the US Criminal Justice System
Minority group members risk discrimination in the criminal justice system on the basis of their
ethnic origin, race, religion or language. Furthermore, as a result of their age, gender, sex, sexual
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orientation or disability, some of these people in minority groups endure extra and intersecting
types of prejudices. Certain groups and individuals are especially susceptible to certain forms of
prejudice within the criminal justice system. Minority children, women and men, and people
living with disabilities continue to suffer from police brutality and over prosecution as a result of
prejudice in the criminal justice system.
Minority children in the US, such as black and Latino kids, under the age of 18, account for the
majority of children in the criminal justice system(Katherine Rosich, 2009). This might be
explained by law enforcement authorities' discrimination, but it could also be explained by the
greater degree of social exclusion faced by those groups in the US(Katherine Rosich, 2009).
Social exclusion frequently results in cycles of impoverishment, sexual abuse, gang activity,
substance misuse, educational hurdles, and limited opportunities for meaningful work. Minority
children may also experience further discrimination if their parents are involved in the criminal
justice system as a result of a lack of sufficient social and educational opportunities(Katherine
Rosich, 2009). For Latino children, who are hugely underrepresented in criminal justice
literature, over prosecution occurs when they are 30% more likely to be referred to juvenile court
by law enforcement than black children.
Minority women seem to suffer more due to factors such as prosecutor’s inaction, judicial
stereotyping, police indifference and cases of sexual abuse against women held in
custody(“Crim. Justice Syst. Soc. Exclusion Race, Ethn. Gend.,” 2018). These difficulties are
increased as a result of the convergence of race and sex with other factors, such as poverty,
geographical boundaries, and language. Many of them endure greater levels of assault than other
women and face additional barriers to getting legal protection and recourse. Women from ethnic
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minority groups who are charged with or convicted of crimes frequently come from poor
backgrounds and are over prosecuted in the US criminal justice system. These women require
special assistance in overcoming barriers to services prior to, during, and after trial.
Law enforcement agencies in the US, as well as other criminal justice personnel, use aggregate
data to designate particular locations as "high crime zones" promotes and replicates racial
inequity over time(Katherine Rosich, 2009). The collateral repercussions of contemporary
policing techniques support criminalization as a geographical and racial phenomenon, further
instilling stereotypes and inequalities. Neighborhoods and their citizens are thus labeled as
criminals(Katherine Rosich, 2009). Police officers and other law enforcement agents use these
techniques to rationalize increasing surveillance and contact with people of color, even when the
practices disproportionately affect individuals who are not criminals. This leads to
overcriminalization and over prosecution of people and the instillation of fear, hatred, despair,
anxiety, and a sentiment of police arbitrariness. Additionally, increased police engagement
increases the likelihood that communities may be subjected to police errors and wrongdoing,
including unjustified deaths.
Research Discovery
Critical race theory demonstrates that minorities are disproportionately criminalized as a result of
the way crime is defined. Numerous fatal acts carried out by the white majority and not classified
as crimes can be contrasted to numerous behaviors by minority groups that are thoroughly
policed. Racial profiling of the minority by the police and statistical discrimination discriminates
against law abiding minority groups and only serve to alienate young people.
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CRIMINAL JUSTICE SYSTEM AND CRITICAL RACE THEORY
In response to the charge by the visible minority community of police brutality and over
prosecution, the criminal justice system in the US should take several steps in order to meet the
standards of substantive justice. Substantive criminal reform can only be achieved when
effective police accountability is established and when there is promotion of integrity for all
stakeholders in the criminal justice system. Effective police accountability necessitates a system
where the public, civil rights bodies, and the state, together with the police officers, are
represented. A system where everyone is represented creates diversity and inclusivity and thus
minimizes discrimination and over prosecution of minority defendants(Nations & Nations Office
Drugs, n.d.). Judges, prosecutors, and other professionals in the criminal justice system should be
a reflection of the community’s racial, cultural, and ethnic diversity.
A democratic society requires a representative law enforcement authority that reflects the
broader public. Whereas this is not a guarantee of protection against prejudice and police
brutality, it is a critical component of upholding the credibility and transparency of law
enforcement agencies. It will minimize the disproportionate effects on minority groups, such as
police brutality, racial profiling, and over prosecution. There should be promotion of appropriate
representation of members of minority groups, inclusive of recruitment and advancement of
these members in the criminal justice system(Jefferson, 1992). Increasing racial and ethnic
groups in law enforcement develops the competence of law enforcement personnel and is critical
in restoring the minority population’s faith in the criminal justice system.
In addition, training should be accorded to judges and prosecutors, taking into consideration
racial and ethnic diversity in order to build an appreciation for the unique requirements of
minority groups. Consequently, there will be a reduction in overt prejudice against minority
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defendants in the criminal justice system and the possibility of violating their rights to fair trial
and equality before the law. The criminal justice system should also come up with a framework
that monitors the operations and activities of police officers prior to, during and after they occur.
While the above are necessary steps to achieve accountability and integrity in the criminal justice
system, there is a need to raise awareness about racial inequalities through education and
affirming the idea of race, equality, and inequalities through the lens of critical race theory and
intersectionality theory. Michelle Alexander, in her book, The New Jim Crow: Mass
Incarceration in the Age of Colorblindness, argues that the US criminal justice system has been
designed to target black men and consequently impoverish African-American communities and
cast them into subordinate status. She argues that the criminal justice system is a tool for social
control in a world where race does not exist(Alexander, 2011).
Conclusion
To achieve best practices in policing and be proactive in responding to the charges of visible
minority community of police brutality and over prosecution, the US needs to acknowledge that
its criminal justice system violates the right to equality, the right to liberty, the right to freedom
and the right to fair trial for a majority of minority groups in the country. While the above
recommendations might be necessary steps in the right direction, police brutality and over
prosecution can only be curbed by enacting specific legislation prohibiting racial and ethnic
profiling. Law enforcement statistics, especially on ethnic and racial data, should guide such
reform and legislation. This should lead to the adoption of a code of conduct that restricts the
targeting of minorities by law enforcement institutions and their officials, and affirmative action
in the recruitment of minority groups into the criminal justice system. Overall, an integrated
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approach guided by the tenets of the critical race theory should be adopted into the criminal
justice system to establish a framework that protects minorities and includes them in law
enforcement.
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