'Policing plays a key role in maintaining structural inequalities between people of color and white people in the United States" 

Edwards, Lee and Esposito, "Risk of being killed by police use of force in the United States by age, race–ethnicity, and sex" (8/5/2019, National Academy of Sciences)

Racial Disparities in Incarceration are a Result of Bias at Each Discretionary Point in the Criminal Justice System

Racial disparities exist at each point in the Criminal Justice System "decision tree," leading to the overwhelming consequence that people of color make up 62% of the incarcerated population while representing only 38% of the overall population.

What are the discretionary decision points?

• Law Enforcement Policy-Who and where police patrol and what offenses are selected for enforcement.
• Law Enforcement Patrol-Who will be stopped, for what reason and who will be searched. Who will be given a warning and who will be charged. Who will be arrested and taken to jail and who will be released with a summons.

• Judges-What conditions will be imposed for release from jail-bail, OR, pre-trial supervision. 

• Prosecutors-Which cases will be dismissed and which will be prosecuted. What terms will be offered in a plea "bargain." What sentencing recommendations will be made.

• Judges-What sentence will be imposed. Will probation be granted. What other terms will be required.

• Probation/Parole-Who will be revoked. Who will be assisted.

• Judges-Who will be arrested for failure to comply with sentencing sanctions.

• Defense Attorneys-Whose case will be championed and whose will be "processed."

Because bias exists at each decision point, the net result is that white, middle-class defendants who are most similar to the white, middle-class people making those decisions, are more likely to be diverted from incarceration while people of color and in a lower socio-economic class are main lined directly to prison and jail. 

While overt racism is real, in many instances what may appear to be bias against people of color is actually bias in favor of white-middle class people: those who are most similar to the people in power. This is the insidious form of racial bias that defines white privilege and fills prisons with persons of color. 

Racial Bias in Discretionary Decisions is Reinforced by Disparities in the Racial Make-up of the Decision Makers

Attorneys and Judges are Overwhelmingly White

But racial disparities do not exist soley on the defendant side of the system. The disparities exist at an even greater level on the power side of the system. While white, non-Hispanic peoples make up 62% of the general population, they make up 85% of all lawyers and judges in the United States. The legal profession remains one of the least racially diverse of any profession. 

"In terms of racial and ethnic diversity in the legal field, the numbers paint an even bleaker picture. For instance, according to the ABA’s National Lawyer Population Survey, 4 percent of active attorneys identified as Black or African American in 2007 and 4 percent identified as Hispanic or Latino. By 2017, those numbers rose only slightly to 5 percent each. Yet, data collected by the U.S. Census Bureau indicate that, as of 2016, Black or African American individuals made up 13.3 percent of the total U.S. population and Hispanic or Latino individuals made up 17.8 percent of the total U.S. population. The percentage of active attorneys identifying as Asian remained steady at 2 percent, and those who identified as Native American remained around 1 percent. These numbers sometimes vary slightly across reporting agencies, but the fact that these minority populations remain woefully underrepresented in the legal profession is obvious no matter where you look."

Laffey, A and Ng, A, "Diversity and Inclusion in the Law: Challenges and Initiatives" American Bar Association Article (May 2, 2018)

"It is crucial to the acceptance of a justice system that any people see themselves as participants in it, not just the recipients of its outcome. Fundamental fairness in any legal system must also have the appearance of fairness that comes with inclusion of all races." -Lawrence Baca

National Native American Bar Association, "THE PURSUIT OF INCLUSION: An In-Depth Exploration of the Experiences and Perspectives of Native American Attorneys in the Legal Profession,"  Tempe, AZ 2015

Law Enforcement is Overwhelmingly White

Police departments too suffer from an imbalance between the racial and ethnic diversity of the communities they serve and the make up of the officers on the force. In a 2015 study of 269 police departments serving communities with more that 100,000 residents the authors found that  "Racial and ethnic minorities were underrepresented by a combined 24 percentage points on average when shares of police officers were compared to Census population estimates for each of the 269 jurisdiction reviewed."  "Diversity on the Force: Where Police Don't Mirror Communities"  A Governing Special Report-September 2015.

Classism and Racism are Branches of the Same Tree

The source of such disparities is deeper and more systemic than explicit racial discrimination. The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color. The wealthy can access a vigorous adversary system replete with constitutional protections for defendants. Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system. "Report to the United Nations on Racial Disparities in the U.S. Criminal Justice System" The Sentencing Project (April 2018)