Racial Bias in the Criminal Justice System

The Honorable Barbara Madsen, Racial Bias in the Criminal Justice System 47 Gonz. L. Rev. 243 (2011)


In 2008, in his speech, “A More Perfect Union,” candidate Barak Obama called for a national conversation on race in America.  In that speech, he reminded us in the words of William Faulkner: “The past isn’t dead and buried. In fact, it isn’t even past.”

As then-candidate Obama observed, so many of the disparities between black and white Americans can be directly traced to inequalities sanctioned by our state and federal laws: first, laws protecting slavery, and, later laws imposing and perpetuating segregation—Jim Crow laws—laws legalizing discrimination, preventing blacks, Asians, and other nonwhites from owning property or even becoming citizens; Fair Housing Act regulations that denied mortgages to African Americans; employment laws and regulations that excluded blacks and other nonwhites from unions, the police force, or fire departments; and laws and policies that have, at times, brought the near extinction of native cultures and, indeed, Native Americans themselves.

In a speech shortly after his appointment as Attorney General of the United States, Eric Holder had a conversation about race and racism with his colleagues at the Department of Justice.  He explained the need for understanding, and for a basic grasp of history, which is so often missing from current discussions of racial progress.  He noted—quite correctly—that “this nation has still not come to grips with its racial past nor has it been willing to contemplate, in a truly meaningful way, the diverse future it is fated to have. To our detriment, this is typical of the way in which this nation deals with issues of race.”

Race is a difficult topic, in part, because race is a social construct—it has no genetic roots.  This means that people have constructed the notion of race—often to gain advantage over others. The history of race in America is a history of injustice, and this is very difficult for Americans to hear and to accept. White Americans work hard, and they don’t feel they have any special privileges. Many lack information about the history of race, and of the laws and policies impacting Americans because of their color. Race is not an issue that should be whispered in the privacy of a home or simply ignored; it is a weighty subject that calls for public debate—even if that debate causes discomfort. . . .

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