During the 1990s, arguments over racial disparity in the criminal justice system attained a renewed vigor. Of course, this debate is not new. Criminologists have long debated the presence of racial disparity at various places in the criminal justice system, from initial on-the-street encounters between citizens and police officers to the sentencing behavior of judges. (1) What is new is the use of statistics designed to persuade the public, and not just other academics and researchers, that grave racial disparities exist in the system, and that these disparities necessitate significant policy changes. For example, the Sentencing Project, a group that has advocated the use of an array of alternatives to incarceration even as our nation has imprisoned an increasing share of our citizens, (2) published a report in 1990 based on government data that showed that almost one-in-four black men in the United States aged twenty to twenty-nine were then under the control of the criminal justice system-in prison or jail, on probation, or on parole. (3) This figure quickly became a widely used benchmark for measurement of the impact on inner city minority communities of our ever greater reliance on imprisonment. The Sentencing Project issued a follow-up report in 1995 that reported that the ratio had risen to one-in-three, (4) and in Washington, D.C. and Baltimore was actually even higher than one-in-two. (5) The use of these statistics-numbers that came from publicly available data that had never been pulled together in this way before-was a stroke of genius. It captured the essence of one of the most significant, if usually unnoticed, aspects of our incarceration uber alles approach to criminal justice: Reliance on imprisonment was having a hugely disproportionate impact on communities of color. Another example involves federal sentencing practices, race, and the so-called "War on Drugs." Draconian sentences for drug crimes have been a feature of the federal penal system since the adoption of the federal sentencing guidelines in the 1980s. (6) But one feature of the sentencing system seemed to stand out among all the others: sentencing for possession of "crack" cocaine versus cocaine in powder form. Possession of these two forms of the same illegal drug results in wildly differing consequences. Defendants convicted of possession of 500 grams of powder cocaine receive a mandatory minimum sentence of five years in prison; those caught with the "crack" form receive the same mandatory five-year sentence for just five grams. (7) The "crack" form of cocaine was much more commonly possessed by black sellers than by sellers of other races; the powdered form was found much more commonly among whites. (8) Some advocates charged that this led to the burgeoning racial disparities in federal prisons; these prisons are increasingly populated by blacks serving longer average sentences for drug crimes than whites. (9)
As persuasive and important as these arguments have been, one must also remember to exercise caution when using statistics in the debates on crime. While the numbers cited above can help to frame the debate on race and criminal justice, it is also possible to use statistics improperly and to use statistics to approach problems from too simplistic a perspective. For example, blacks are over-represented among those arrested and imprisoned in this country- practically everywhere, and for almost every type of crime. (10) Does this mean that the criminal justice system, in the form of police making arrests and judges passing sentences, discriminates based on race? Not necessarily, as there may be many other explanations for these disparities. Thus, while statistics may indeed illuminate discussions of racial disparities in criminal justice, using an incorrect or incomplete statistic to prove a point may not only be unhelpful but misleading.
Scholarship and research on racial profiling illuminate a unique perspective on the use of data in addressing the disproportionate representation of minorities in the criminal justice system. …