Law in Contemporary Society
Professor Moglen, I decided for this paper to write about a completely different topic from my last paper. I. Introduction II. Socio-economic Factors III. Discriminatory Laws IV. Unchecked Discretion V. General Perceptions


During high school, I became aware of the disturbing statistics concerning the overrepresentation of Blacks in the prison system. Every year the Street Law teacher, Ms. Glazer, took students to a Long Island jail. The purpose was to teach students about the realities of jail and scare them into law-abiding citizens. After the field trip, Ms. Glazer’s last cautionary message was to remind us of the plight of one girl who had the misfortune of being the only white girl in the jail. I understood the point of Glazer’s message to the other, mostly white students, but nevertheless her comment agitated me. Her remark implied that because the girl was white, she did not belong in jail. It was a mishap for her to be in jail, as oppose to all the other guilty, jail-deserving blacks. While this notion troubled me, it is a fact that African-Americans are incarcerated at staggering rates and account for half the inmates in jail today. Prisons have become synonymous for institutions holding blacks. This paper examines the reasons for this alarming condition. While the socio-economic factors are relevant, the prevalence of racial discrimination in the legal system also contributes to the disparity.


So, why are blacks overrepresented in the prison system? There are different theories to explain this phenomenon. One view articulated in Black’s The Behavior of Law suggests that people at the bottom of the economic pyramid are more likely to engage in deviant behavior. An “individual deprived of the legitimate means to improve his conditions is more likely to use illegitimate means such as theft or illicit business” (Black 254). This statement speaks indiscriminately to poor people in general. Poor people are more likely to be arrested, convicted and penalized more severely. And when wealthy people are arrested, they have certain legal advantages like better access to attorneys. People who can not afford to pay for attorneys have limited options for representation, which often means being assigned to an overworked public defender with limited resources. Stemming from the legacy of American slavery, Blacks tend to be socio-economically disadvantaged with less earning power than non-blacks. Thus, assuming the Black’s premises are true, the poor living conditions and limited financial resources of many African-Americans account for some of the statistics.


While the socio-economic factors contribute to the overrepresentation of blacks in prison, it is certainly not the only factor. To racially conscious individuals, it is impossible to ignore the role that the legal system’s hostility towards African-Americans plays in the statistics. Although laws in the twenty-first century rarely mention race, their implementation often not only have a disparate impact, but target blacks. For example, crack and cocaine users commueit the same offense in terms of culpability, mens rea, actus reus etc., yet the penalty for crack use is more severe than for cocaine use. The only difference between the crimes is that crack is generally consumed by blacks and other individuals with less economic means. The law seems to be targeting the people rather the conduct. Another example of how the law targets minorities while appearing facially (racially?) neutral was evident in City of Chicago v. Morales, 527 U.S. 41 (1999). In Morales, the Supreme Court overturned an ordinance passed by the Chicago City Council which made it illegal for a group of people reasonably believed to be gang members to loiter in the public streets. The ordinance’s vast reach resulted in 42,000 arrests within only three years following its enactment. Too often, it seemed the police “reasonably believed” that any minority youth in urban attire was a gang member. The ordinance was later described by Steve Chapman in “Courts Uphold America’s Right to Hang Out” as creating the new crime, “‘standing around while black’ to go with the old one of ‘driving while black’”(Criminal Law and Processes 164).


The broad discretion and unchecked power given to police and prosecutors contribute to the disproportionate number of blacks in the prison system. Police officers decide who is arrested and who gets off with only a warning. Drug use among blacks and whites are proportionally even, yet Blacks are thirteen times more likely to be arrested for the offense ( During undergrad, I remember a white student candidly testifying to the veracity of these findings. While driving in North Carolina (his home state) the white student was pulled over by cops, who found marijuana in his possession. The cops reprimanded him, threw the marijuana out, and sent him home. Around the same time, a black classmate of his was also spotted with marijuana by the police; however, the black student had to spend the night in jail. Police officers not only police Black people more, but use their discretion in a discriminatory manner. Prosecutors also abuse their discretion, further contributing to the disparities. Evidence of this abuse was apparent with the recent Jena 6 incident. Amidst racial tension, six black high school students were arrested and tried for getting into a high school fight. The prosecutor tried the students as adults for attempted murder, with the possibility of a 100 year sentence and no parole. After media attention and the organized efforts of Jena 6 supporters, the charges were reduced. Jena 6 is only one example of how the persistence of racial discrimination by prosecutors contributes to the overrepresentation of Blacks in jail.

General Perception

The discriminatory treatment of blacks by police and prosecutors coincide with American society’s criminalistic perception of black people in general. The events following the aftermath of Hurricane Katrina offered a glimpse of this. After New Orleans was wrecked by the hurricane, the first response by officials was to send police officers to stop looters instead of responding to the needs of the devastated victims. More revealing was the blatantly biased portrayal of blacks in the media. In one newspaper, there were separate images of blacks and whites both carrying foodstuff and toiletries in chest-high water. The caption beneath the image of the black woman condemned her as a looter, while the caption beneath the white woman sympathized with her and described her actions as finding food for her family. The perception of blacks as criminals coupled with the unchecked discretion held by police and prosecutors contribute to the alarming statistics. While the socio-economic theory offers insight into the prison dilemma, it does not tell the whole story.

* Set ALLOWTOPICVIEW = TWikiAdminGroup, ShirleyBoutin

  • I'm not sure I understand the purpose of the essay. You've set it up so only you and I can read it. You've spent a thousand words on saying something you and I both believe and consider basic. We agree that the state of American criminal justice, and in particular the size and composition of the prison population, is accounted for in part by the social practice of white supremacy. I do not think you believe me to need convincing about that. The essay makes no unfamiliar arguments, and isn't particularly precise about the ones it does make. You don't, for example, attempt to figure out who's in prison for what, and the evidence you offer for the discriminatory nature of the system (while probative) doesn't bear very directly on the immediate issue, which is the proportion of black people in prison. You would have to argue more tightly if you were trying to prove these propositions to someone unconvinced. If convincing those who don't agree isn't your intention, and if you don't mean to put forward a novel or even an unfamiliar argument in support of the proposition, what is the essay for? If I could see its purpose more clearly, I could more helpfully advise on its improvement.


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r7 - 08 Jan 2010 - 22:11:29 - IanSullivan
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