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Obama is right about the criminal "injustice system": 7 ways it's racially skewed

Mark Makela/Getty Images

President Barack Obama on Tuesday criticized the criminal justice system for its many racial disparities, characterizing it as an "injustice system."

"The bottom line is that in too many places," Obama said during a speech at the NAACP's 2015 national convention, "black boys and black men, Latino boys and Latino men experience being treated differently under the law."

Obama is right about this aspect of the criminal justice system: It is racially skewed in many, many ways. From who's incarcerated to who's policed, minority people experience a completely different justice system than their white counterparts.

1) Black people are disproportionately incarcerated

Black people are nearly six times as likely to be incarcerated as white people, and more than twice as likely to be incarcerated as their Latino counterparts. This leads to enormous inequities over lifetimes: the Sentencing Project estimated that one in three black men born in 2001 will be imprisoned at some point in their lives, compared with one in 17 white men and one in six Latino men.

Part of this disparity is explained by socioeconomic factors, including poverty and unemployment, that make black Americans more likely to commit crime than their white counterparts. But a review of the research by the Sentencing Project concluded that the higher crime rates in black communities only explained about 61 to 80 percent of black overrepresentation in prisons. This means that other factors, such as racial bias, were behind as much as 39 percent of the disparate rates of imprisonment for black people.

2) White and black Americans use and sell drugs, but black people are punished far more for it

drug use and arrests Joe Posner/Vox

Black people are much more likely to be arrested for drugs, even though they're not more likely to use or sell them.

What's behind the disparities? Sometimes, systemic racism and the subconscious racial biases of law enforcement are major factors. But often it's a collision of socioeconomic trends and otherwise race-neutral policies, according to the Sentencing Project: "Socioeconomic inequality does lead people of color to disproportionately use and sell drugs outdoors, where they are more readily apprehended by police." These types of disparities cascade through the war on drugs and the rest of the criminal justice system, leading to very skewed outcomes.

3) Black defendants get longer prison sentences for the same crimes

Black defendants generally receive longer sentences than their white counterparts for the same crime, according to a 2012 report from the US Sentencing Commission (USSC).

For example, black people have historically received harsher prison sentences for drug trafficking than their white peers. Drug trafficking sentences for black men were 13.1 percent longer than those for white men between 2007 and 2009, 9.1 percent longer between 2005 and 2007, and 9.2 percent longer between 1998 and 2003. There was no statistically significant difference in drug trafficking sentences for black and white men in 2003 and 2004.

4) Mandatory minimum sentences disproportionately punish African Americans

In the US, someone would need to possess 18 times the amount of powder cocaine as crack to get the same mandatory minimum sentence — even though both drugs are pharmacologically identical and produce similar effects.

The sentencing disparity between crack and powder cocaine used to be worse, but in 2010 federal lawmakers reduced it from 100-to-1 to 18-to-1.

The crack sentences have been widely criticized by drug policy reformers as racist. Although crack and powder cocaine are pharmacologically similar, crack is cheaper, making it more accessible and often the preferred version of cocaine in poor, black communities.

As a result, black Americans have been disproportionately arrested and charged for crack offenses. About 83 percent of crack trafficking offenders in fiscal year 2013 were black, 10 percent were Hispanic, and 5.8 percent were white, according to USSC. In comparison, 58 percent of powder cocaine trafficking offenders were Hispanic, 31.5 percent were black, and 9.4 percent were white, according to USSC.

Since crack carried a considerably harsher penalty, USSC found more than 67 percent of crack offenders in 2013 were sentenced to five or more years in prison, compared with 56 percent of powder cocaine offenders. And this is after the Fair Sentencing Act passed in 2010 and reduced the sentencing disparities between both substances.

5) Black people are a lot more likely to receive the death penalty

Vox's Dara Lind explained:

African-American defendants in cases where a death sentence is on the table are more likely to get sentenced to death than white ones — especially if the jury is all white. And at least one study indicates that might be the product of implicit bias that subconsciously associates blackness with criminality. The study, conducted by psychologist Jennifer Eberhardt (who won a MacArthur "genius grant" in 2014), looked at the facial features of death penalty defendants, and found that "the more stereotypically black a person's physical features are perceived to be, the more that person is perceived as a criminal… Even in death penalty cases, the perceived blackness of a defendant is related to sentencing: the more black, the more deathworthy."

Conversely, only 15 percent of victims of crimes that result in a death sentence are black. One Government Accountability Office study from 1990 found that in 82 percent of the cases it reviewed, "race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks."

6) Black suspects are more likely to be shot and killed by police

police shooting by race Joe Posner/Vox

An analysis of the available FBI data by Lind shows that US police kill black people at disproportionate rates: they accounted for 31 percent of police shooting victims in 2012, even though they made up just 13 percent of the US population. Although the data is incomplete, since it's based on voluntary reports from police agencies around the country, it highlights the vast disparities in how police use force.

Black teens were 21 times as likely as white teens to be shot and killed by police between 2010 and 2012, according to a ProPublica analysis of the FBI data. ProPublica's Ryan Gabrielson, Ryann Grochowski Jones, and Eric Sagara reported: "One way of appreciating that stark disparity, ProPublica's analysis shows, is to calculate how many more whites over those three years would have had to have been killed for them to have been at equal risk. The number is jarring — 185, more than one per week."

There were several high-profile police killings in the past year involving black suspects. In Baltimore, Mosby pressed 28 criminal charges against six police officers for the death of Freddie Gray while in police custody. In North Charleston, South Carolina, Michael Slager was charged with murder and fired from the police department after shooting Walter Scott, who was fleeing and unarmed at the time. In Ferguson, Missouri,  Darren Wilson killed 18-year-old Michael Brown in a highly contentious shooting that sparked nationwide protests. In New York City, NYPD officer Daniel Pantaleo killed Eric Garner by putting the unarmed 43-year-old black man in a chokehold.

7) Research shows police — and the general public — hold subconscious biases against black people

Two white ex-cops from Chicago pose in a picture that depicted a black detainee as a hunted animal — an extreme example of how police can dehumanize black men.

Chicago Sun-Times

As part of a study published in the Journal of Personality and Social Psychology in 2014, researchers studied 176 mostly white, male police officers, and tested them to see if they held an unconscious "dehumanization bias" against black people by having them match photos of people with photos of big cats or apes. Researchers found that officers commonly dehumanized black people, and those who did were most likely to be the ones who had a record of using force on black children in custody.

In the same study, researchers interviewed 264 mostly white, female college students and found that they tended to perceive black children age 10 and older as "significantly less innocent" than their white counterparts.

"Children in most societies are considered to be in a distinct group with characteristics such as innocence and the need for protection," Phillip Goff, a UCLA researcher and author of the study, said in a statement. "Our research found that black boys can be seen as responsible for their actions at an age when white boys still benefit from the assumption that children are essentially innocent."

Other research suggests there can be superhumanization bias at work, as well, with white people more likely to associate paranormal or magical powers with black people than with other white people. And the more they associate magical powers with black people, the less likely they are to believe black people feel pain.

Dehumanization and subconscious racial biases are worrying because they may contribute to greater use of force. Studies show, for example, that officers are quicker to shoot black suspects in video game simulations. Josh Correll, a University of Colorado Boulder psychology professor who conducted the research, said it's possible the bias could lead to even more skewed outcomes in the field. "In the very situation in which [officers] most need their training," he said, "we have some reason to believe that their training will be most likely to fail them."

Experts agree these subconscious biases help explain at least some of the racial disparities in the criminal justice system, which — as Obama acknowledged — are all too real.

Watch: The racism of the criminal justice system, in 10 charts

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