SOCIAL CONSTRUCTION IN THE U.S. CRIMINAL JUSTICE SYSTEM
The U.S. criminal justice system is described as a network of government agencies and institutions, including law enforcement, court systems, and correctional institutions. In theory, it is a system based on the principles of law and order, where all are treated equally under the law and justice prevails. Unfortunately, the current system has become innately problematic for specific populations, especially for black American’s who are more likely to experience burdens and less likely to receive benefits in all aspects of U.S. Society. Justice is often distributed according to money and status. Political power and monetary influences have infiltrated the neutrality of the system and reinforced the social roles of various groups in U.S. society. This essay applies concepts from the Social Construction and Policy Design Framework (aka “ Social Construction Framework”) to this very complicated and deeply flawed system, with special focus on the intersection between race and the criminal justice system.
The Social Construction Framework is based on the work of Anne L. Schneider and Helen Ingram and examines how the consequences of policy solutions are distributed across society. This framework allows for the identification of the societal characteristics that contribute to patterns of social justice. The theory also provides a pathway to understand how policy can either reinforce or change the social construction of different groups with respect to the current design of America’s criminal justice system. Furthermore, the framework’s design provides additional context when viewing the impact of criminal justice policies on affected groups. 2020 has challenged the foundation and construction of society in America where social narratives have long been used to reinforce inaccurate belief systems. The senseless deaths of George Floyd, Brionna Taylor and countless others have brought the disparities in the justice system to light. The Social Construction Framework can be used to identify the weaknesses that allow such events to happen, so they can be rectified in future policies.
THE SOCIAL CONSTRUCTION FRAMEWORK
In the Social Construction Framework, each group is “socially constructed” (categorized) according to societal attitudes which, in turn, determines how they are perceived by the other groups. Groups that conform to societal ideals and norms are more positively constructed while groups that fail to meet those expectations are more negatively constructed. There are four main categories summarized in this framework. The first group, known as the “Advantaged”, is positively constructed and consists of politically powerful individuals who receive the benefits of a policy without being subject to its burdens. The second group is known as “Contenders”. Contenders are also a politically powerful group, though they are negatively socially constructed. This group receives benefits from policies but is also subject to mostly symbolic burdens. The third group, labeled as “Dependents”, are another positively socially constructed group, but with very little political power. This group often receives the burdens of policy with largely symbolic benefits. The final group, “Deviants”, are the most negatively constructed group with the least amount of political power. They are the most likely to be blamed for the problems in society and are assigned the majority of society’s burdens. The Social Construction Framework can be broadly applied across multiple facets of society, including criminal justice policies.
SOCIAL CONSTRUCTION APPLIED TO THE CRIMINAL JUSTICE SYSTEM
In the criminal justice system, defendants and victims are often treated according to the social construction of the group they are assigned to. Often, it is a person’s group membership status that predicts how they will be treated by the system. The disparities that negatively constructed groups consistently face during interactions with law enforcement and the courts have been painfully evident for years but have only recently managed to gain the public’s attention. The application of Social Construction Framework begins with the identification of the characteristics making up each group:
Advantaged: The most advantaged in our criminal justice system tend to be those who are white in the middle to upper classes. This group is often able to hire representation and receives lower conviction rates than offenders in any of the other groups. Acquittals are higher in this group and sentences are disproportionately low. Members of the Advantaged group are viewed more empathetically by the system and are able to capitalize on this. Their well-paid defense teams understand the power the group’s positive construction has over juries and will use it to their advantage. One of the most common tactics is to coach clients to use non-verbal communication techniques to sway jury opinions in their favor, including how to dress and carry oneself in a way that evokes an emotional response from jurors. This provides them with an advantage over defendants who are represented by overworked and underpaid public defenders. The 2016 case of a white college student, Stanford swimmer Brock Turner is one example of the disproportionate benefits received by this group. Turner was convicted by a jury of several counts of sexual assault. Prosecutors recommended Turner serve six years for his crimes, but he ended up only serving three months of an already lenient six-month sentence. At trial, Turner’s father protested in court by claiming the sentence was “a steep price to pay for 20 minutes of action.”
Contenders: Wealthy and well-connected defendants are often considered to be Contenders, depending on one’s views regarding the moral value of wealth. The case of multimillionaire and financier Jeffrey Epstein and the several years he spent sexually abusing dozens of young women provides one such example. In 2008, Epstein pleaded guilty and was sentenced to prison in the state of Florida on solicitation of prostitution of an underage girl. He served approximately 13 months and was given work release 6 days per week for 12 hours a day (which were spent at his home, largely without supervision). The deal Epstein received in exchange for his guilty plea, not only erased other charges against him, but it also granted him immunity from the federal criminal charges he was facing at the time. There is little doubt it was only made possible because of his extensive wealth and connections. Epstein was eventually arrested again in 2019 for sex-trafficking but found dead in his cell of an alleged suicide before the case made it to trial.
Dependents: Drug offenders were once considered to be deviants in the Social Construction model. However, societal views and judgments regarding drug use have shifted away from criminality and toward illness. This shift has resulted in a more positive social construction of those who suffer from substance use disorders. Treatment is now seen as a preferred alternative to jail. However, the transformation of drug offenders from deviants to dependents seems to be heavily influenced by a person’s race and socioeconomic circumstances, as evidenced by inconsistencies in access to treatment options: including medications such as Buprenorphine, a drug which is effective in reducing opioid cravings, but is prescribed to white Americans at 35 times the rate it is prescribed to black Americans.
Deviants: The criminal justice system is one of the most significant reminders of racial injustice in U.S. society today. Empirical evidence indicates black offenders and victims alike receive the majority of its burdens compared to members of other groups in equivalent circumstances. The following section expands on some of the excessive burdens that fall on the black community.
THE INTERSECTION BETWEEN RACE AND SOCIAL CONSTRUCTION IN THE CRIMINAL JUSTICE SYSTEM
Interactions with Law Enforcement: Black Americans are significantly more likely to experience negative interactions with police when taking population proportions into account. The root of this problem likely dates back to slavery when the sole purpose of the first U.S. police force, known as the “Runaway Slave Patrol” was to capture and “control” escaped slaves. The name inscribed on the badge given to members of the “patrol” remains eerily similar to the one worn by law enforcement officers even today. The history of policing also corresponds with the portrayal of black men as deviants in the 1915 film Birth of a Nation, which was also the first film to be screened in the White House under President Woodrow Wilson. Birth of a Nation portrayed black men as sexually deviant monsters who attacked innocent white women.
Many police departments and unions deny the systemic and institutional racism inherent in policing. However, empirical evidence indicates otherwise. According to traffic data collected over 14 years in North Carolina, black drivers were stopped 63 percent more than other drivers and were searched 115 percent more than white drivers, even though contraband turned up more often in searches of white drivers. In addition, black men are 2.5 times more likely than white men to be killed by police, while black women are 1.4 times more likely to be killed by police than white women. These examples demonstrate the existence of implicit bias in law enforcement responses and the need for institutional change.
Interactions with the Court System: Racial disparities within the court system are also well-documented. Drug crime policy in particular has unduly affected the black community beginning with the Nixon administration. Drug Policies in the Reagan era such as the Anti-Drug Abuse Act of 1986, further contributed the enormous racial disparities in the treatment of drug crimes. Crack and cocaine are chemically identical. However, cocaine tends to be used more by whites, while crack is used more by blacks. Yet, the federal penalties created in the 1986 act treated the two substances substantially different at a ratio of 100:1. (which decreased to 18:1 in 2010 by the Fair Sentencing Act). Incarceration rates increased substantially for black Americans as a result of the harsher penalties they experienced. By 1990, federal incarceration rates for Black Americans had risen from 11 percent higher than incarceration rates for whites to 49 percent higher. The Violent Crime Control and Law Enforcement Act of 1994, also known as the “1994 Crime bill” included new provisions such as Mandatory Minimums and Three Strikes, along with massive increases in funding for law enforcement and the prison system compared to prevention programs, while also granting incentives to states who enacted Truth in Sentencing laws. These additions further impacted communities of color by reinforcing generational poverty resulting from these increases in penalties.
Racial differences also exist in sentencing lengths between white and black defendants, even when the crimes are identical. An updated 2017 report by The United States Sentencing Commission found disparities of up to 20 percent between the two races. Alternatively, the variances in death penalty cases focus on the race of the victim. Consistent data over time demonstrates the death penalty is much more likely when the victim is white. This includes a 2011 study in Louisiana which found the odds of a death sentence to be 97 percent higher for crimes involving white victims than for black victims.
FEED FORWARD EFFECTS OF THE SOCIAL CONSTRUCTION FRAMEWORK
The “feed forward effect” in Social Construction Framework explains why policies continue to reinforce the existing distribution of power among different groups. This reinforcement is made possible through the existence of long-standing stereotypes and accompanying narratives that allow some groups to remain in power. The sentiment of which is continuously recycled through various societal channels. Consequently, it is not uncommon for someone to respond defensively when they are reminded of the effects of systemic racism, especially when they have benefitted from the perpetuation of policies that reinforce such societal dilemmas. Often, one will attempt to offer a defense claiming they have no responsibility for events that occurred in the distant past while refusing to acknowledge the collateral damage resulting from indifference. This response serves as a reminder of the opposition faced by those who wish to modify the current trajectory of social policy.
The feed forward effect further teaches us that a society does in fact remain accountable for its history when it fails to allow oppressive policies to be replaced by new approaches that are focused on distributing benefits and burdens across all groups equitably. Current social policies in the U.S. continue to place asymmetric burdens on black Americans. The over-policing of black neighborhoods, divergent experiences in the criminal justice system, and strategic voter suppression laws are modern day versions of poll taxes and vagrancy laws. However, they are not the only consequences. Decades of targeted drug policies and exaggerated media portrayal have also contributed to disparities in health care. Black Americans are often under-treated for pain when seeking care compared to other races due to unfair stereotypes. Additionally, the maternal mortality rate for black mothers is three times higher than for white mothers, and overall rates of disease and health outcomes are worse for black individuals than for other races. These gaps are especially evident when observing the covid-19 mortality rate, which is much higher for black and Hispanic Americans than for whites. Housing policies such as redlining and the creation of ghettos have evolved into zoning policies and practices that expose black communities to increased environmental hazards. Black Americans are also marginalized in other institutional settings, including the education system where black children are more likely than their white peers to be disciplined for breaking the same rules. It is crucial, especially for those who enjoy white privilege, to recognize the consequences resulting from these uneven distributions of burdens and benefits in U.S. society.
The time to address issues of systemic racism, especially those resulting from the social construction of black Americans in U.S. society and institutions, is long overdue. Black Lives Matter is not about changing a profile picture on social media for a week, nor is it about attacking law enforcement; it is about equity and justice. All lives cannot matter until black lives matter and it is the responsibility of society to change the social narrative and hold policymakers accountable. Continuing to allow the upper echelons of society to enjoy benefits at the expense of others is to be complicit in oppression.
