In recent years, the single most politically divisive aspect of public discussions regarding criminal justice policies has likely been the charge of racial discrimination in policing and punishment. Although wide racial disparities in the American criminal justice system have been noted critically for decades, the emergence of a nationally prominent, broad-based “Black Lives Matter” movement in 2014 gave a new urgency to questions about the disparate impact of so many criminal justice policies and practices in the United States. While the existence of disparities in the system is beyond dispute, the cause and significance of those disparities has been hotly contested.

Before considering the evidence in more detail, a few words about terminology are in order. Inconsistent uses of key terms make constructive conversations about race all the more difficult to achieve. In this chapter, except where the context makes a different meaning clear, the terms “racially disparate” or “racially disproportionate” incarceration indicate that some racial group is overrepresented in the incarcerated population, that is, the group’s share of the incarcerated population is larger than its share of the general population. These terms are meant to be purely descriptive, not critical. A disparity, as I use the term, may be either warranted or unwarranted. A group’s overrepresentation in the incarcerated population might be warranted if, for instance, the group was responsible for a disproportionate share of serious crime. However, to the extent that disparate incarceration cannot be explained by reference to disparate Page 184  |  Top of Articleoffending or other appropriate, race-neutral considerations, the disparity is unwarranted and indicates that some form of unfair racial bias may be influencing some of the decisions being made by police, prosecutors, judges, and/or corrections officials. “Bias,” however, need not be a matter of deliberate racial discrimination but may instead operate at a subconscious level.

This chapter focuses particularly, but not exclusively, on one type of racial disparity: the disproportionate incarceration of African Americans. Other social groups also experience disproportionate incarceration, but most of the public conversation (and, for that matter, most of the academic research) has centered on black-white disparities, which is why they get the most attention here. The disproportionate incarceration of Native Americans (American Indians) and Hispanics (Latinos) will also be briefly considered.

By the standard conventions of researchers and government agencies, “Native American,” like “African American,” is treated as a racial category, while “Hispanic” is treated as an ethnic category. At some level, of course, all racial and ethnic categories are artificial constructs and arguably serve to divide and aggregate individual human beings in ways that do more harm than good. Still, these categories can hardly be ignored in a book on prisons and punishment. The historical development of criminal justice policies and practices in the United States has been profoundly shaped by public attitudes regarding the individuals seen as belonging to various disfavored racial and ethnic categories. Given this history, it is perhaps inevitable that these categories should continue to play a central role in criminal justice policy debates today.