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Disparity and Discrimination in Criminal Law


The laws of natural justice affirm that the law should be applied proportionately. The fact that America’s justice system has failed in addressing equitable justice to all is critical (Cole, 2004). Whereas some feel that the system favors the majority groups, some are crying foul over the discriminate application of law. Consequently, the minor groups are subject to unwarranted sentences as opposed to their majority counterparts. The judicial system, starting from arrest to incarceration has come under serious criticism (Cole, 2004). Disparity and discrimination within the corridors of justice have been debated. Whereas some believe that the two are one and the same, the reality is that they differ. This paper gives a critical examination of disparity and discrimination as far as the criminal law is concerned.

Criminal Law and Multiculturalism

USA remains one of the developed nations that embrace multiculturalism. Consequently, the issue of race and ethnicity is vitally important in the understanding of social interaction and relationships (Michalowski, 2009). It is wrong to think that racism, prejudice and discrimination are long gone. Whereas some scholars believe that multiculturalism leads to dilution of national identity and social cohesion, others contend that multiculturalism appreciates what people from different backgrounds offer. In addition, these people develop skills to coexist peaceful and equitably.

The criminal justice system (CJS) requires that a culture of effective communication, interaction and interpretation of the information is nurtured. This is however not the case especially where multiculturalism is rampant. Ineffective social interaction has caused misunderstandings, conflicts and undue stress (Michalowski, 2009). The police, prosecutors, counsels and judges encounter misunderstanding and misinterpretation among individuals from various groups. The fact that the CJS is made up of employees from an array of cultures emphasizes the need to appreciate cultural, racial and ethnic diversity. Police officers, prosecutors and counsels have however failed to appreciate this fact. The result has been misunderstanding, hence discrimination in the CJS.

Disparity and Criminal Law

Disparity is defined as the imbalance of arrests and convictions for particular groups of people. The study of racial disparity has indicated that it cannot be expressly related to intentional discrimination (Mauer, 2006). This is because some legal factors such as severity of the offense, legislative policies and previous criminal record may also contribute to such variations. Illegitimate racial disparity is said to occur when people are treated differently on basis of their race. Overt racial bias against the vulnerable members of the society is rampant. It has been established that poverty aggravates racial disparity. Consequently, differential treatment within the justice system is observed (Cole, 2004). The Constitutional Rights Foundation (CRF) affirms that the onset of racial disparity manifests itself with arrest policies and parole conditions. CRF is categorical that more black and Hispanic men characterize the prison population.

Statistically, the blacks’ and Hispanics’ prison representation is 25% and 16% respectively. This is far much below that of white males, which lies at 4%. It is however worthy to note that the fraction of blacks in the American population stands at 12% (Mauer, 2006). In addition, death sentences have recorded disparity over the past. Black males have the greatest probability of being sentenced to death. The fact that 40% of those who face the sentence are black males is unfortunate (Tompson, 2008). Various states have recorded extensive cases of disparity. For instance, a survey conducted in California indicated that the whites have a 7% more chance of having their charges reduced. The blacks and Hispanics are disadvantaged in this regard. Similarly, in New York, most inmates represent the Black and Hispanic populations. Probation sentence is not easy to come by for the minority groups.

It should be noted that disparate arrests lead to a corresponding disparate sentencing. The cumulative impact of racial disparity manifests itself from one judicial stage to the next. For instance, the detaining of minorities pending trial may cause disparate sentencing due to inadequate counsel representation (Cole, 2004). Racial disparity is a threat towards the implementation of a balanced justice system. The rejection of the principle of equal justice is observed when racial discrimination increases the disparity levels. Consequently, professionals are addressing disparate judicial treatment with an aim of enhancing values of justice, public safety and fairness. The realization of a democratic society lies within a fair criminal justice system (Tompson, 2008).

Discrimination and Criminal Law

The CJS has frequently been put on the spot light for granting unearned privileges on white criminals. The whites still form the greatest percentage of the American population xxxxx. They exert immense political and economic influence as opposed to the blacks and Hispanics. Research has it that whites will form the minority group by the year 2035. The only important issue however is that they will still control 70-80% of American wealth. Increased economic and political influence leads to compromise of legal proceedings in favor of the whites (Michalowski, 2009).

The administration of criminal justice has been faced by a growing rate of racial and ethnic discrimination (Cole, 2004). The African Americans are the most vulnerable group in terms of racial discrimination. Statistically, about 34% of the blacks spend their life in prison. In addition, felony charges have led to the loss of voting rights for 14 million black men (Mauer, 2006). Racial profiling and police brutality are directed towards the minority groups. The fact that the minorities (Blacks and Hispanics) form the greatest percentage of those incarcerated is unfortunate. The high rate of incarceration does not imply that minorities commit more crimes than the majority. Rather, it is the unequal and discriminatory justice treatment that plays a crucial role (Tompson, 2008). In view of this, arrests, convictions and incancerations favor the majority group. Several indicators attest to the fact that indeed racial and ethnic discrimination do occur.

Racial profiling practices have disproportionally incarcerated people based on color. Despite the fact that Blacks contribute 12% of the population, 38% of them are arrested for drug related offenses (Davis, 2007). Consequently, 59% of those convicted or drug offenses are African Americans. Their lack of favorable plea bargains with a prosecutor sends 74% into prison. Despite the fact that drug use is the same among all racial groups, minorities have a greater probability of going to prison. Whites are usually offered plea bargains and lesser charges as opposed to their minority counterparts. Consequently, the death penalty is guaranteed once established that the victim is a white. Africans who kill whites have a 3-fold likelihood of being sentenced to death compared to the whites (Mauer, 2006). The elimination of disparate justice elements, creation of equalized treatment and the balancing of all judicial processes are vitally important. The investigation, arrest, prosecution, sentencing and incarceration should be consistent with the laws of natural justice.

Deliberate disadvantaging of minority groups as well as advantaging of the majority groups should cease. The CJS should be strict in ensuring that all crime victims are treated equally. Ending institutional discrimination will foster fairness in the CJS (Gould, 2002). The application of the Social Darwinist ideologies has negatively affected the CJS. Consequently, non-white minorities enter the CJS on a different playing level compared to the whites.

Disparity versus Discrimination in Criminal Law

An open mind is usually necessary when examining the underlying principles that distinguish disparity from discrimination. It is therefore important to have a follow up of cases from the initial stages to the final stages. This is because the effects of both disparity and discrimination are carried forward to the next step within the justice system (Davis, 2007). Disparity and discrimination are similar in the sense that criminal variations are observed among different racial groups. However, differences do exist. Whereas racial discrimination causes racial disparity, vice versa is not true (Tompson, 2008). The nature of crimes committed their seriousness, and past record of the criminal help in understanding the real differences. It is factual that some cities are inhabited by a large population of a particular racial group. The arrest, conviction and incarceration rates will therefore target the largest group. Discrimination on basis of age, sex and race is regarded as a vice in the society. In this view, disparity accrues from discrimination. It manifests itself in the stages of criminal justice system (Mauer, 2006).

Counsel representation is one of the major concerns in the CJS. Majority groups find it easy to hire attorneys, who represent them in court. On the contrary, indigent minority groups find it difficult to hire counsels. Despite the fact that the government provides counsel representation for the indigent, the law still favors the majority groups. Six black youths were charged with rape in Alabama in 1993 (Cole, 2004). The Alabama Supreme Court sentenced them to death. It was however noted that no evidence was presented to support the charges. It took two years before the sentence was overturned. The US Supreme Court ensured that counsel representation was in place. This move was vital in establishing the true nature of charges. In fact, the Supreme Court found them innocent. The Due Process has been ignored by the CJS in favor of the whites. How many more cases like this happen under the carpet? Discrimination has also led to disparate counsel representation (Gould, 2002).


In conclusion, it should be appreciated that a clear distinction between discrimination and disparity is non-existent. The fact that both depict a variation in the rendering of justice is evident. This makes it difficult for all law enforcers to administer justice as and when due. It is important for the justice systems to be consistent and fair. People who break the law should receive equal treatment regardless of their racial and color affiliations. The criminals’ past record and seriousness of the crimes should be the major considerations. The law should apply equally regardless of whether one is in the urban or rural areas. The interpretation of the law should be clear to eliminate discriminate and disparate practices. Consequently, true justice will be realized.


Cole, D. (2004). No Equal Justice: Race and Class in the American Criminal Justice System. New York, NY: The New Press.

Davis, A. J. (2007). Arbitrary Justice: The Power of the American Prosecutor. Oxford: Oxford University Press.

Gould, L. (2002). Privilege and the Construction of Crime. New York, NY: Prentice Hall.

Mauer, M. (2006). Race to Incarcerate. New York, NY: The New Press.

Michalowski, R. (2009). Social Class, Crime, and Justice. New York, NY; Prentice Hall.

Tompson, A. (2008). Releasing Prisoners, Redeeming Communities: Reentry, Race and Politics. New York, NY: New York University Press.

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