Defining Racism and the Difficulties of Proving Discrimination Our group is taking the position that the perception of the criminal justice system as being racist is a myth. Since this assertion can be interpreted in many ways, it is necessary to specify what it means and does not mean. First, we are going to explain that there is racial prejudice and discrimination within the criminal justice system, in that there are individuals, both white and minorities, who make decisions, at least in part, on the basis of race. We do not believe that the system is characterized by prejudice and discrimination against minorities "systematic." Individual cases appear to reflect racial prejudice and discrimination by the offender, the victim, the police, the prosecutor, the judge, or prison and parole officials. But conceding individual cases of bias is far different from conceding pervasive racial discrimination. There are studies that argue that the evidence at most decision points fail to show any overall racial effect, in that the percentage outcomes for minorities and whites are not very different. There is evidence, however, that some individual decision makers (for example, police officers, judges) are more likely to give "breaks" to whites than to minorities. it appears, however, that there is an equal tendency for other individual decision makers to favor minorities over whites. This "canceling out effect" results in studies that find no overall racial effect. It is important to note that though racial discrimination has occurred numerous individual cases against minorities and whites, there is no systematic bias against minorities. Second, if one defines racism as a conscious attitude or conscious behavior by no evidence that most individuals in the system make decisions on the basis of race. In short, the definition of racism often predetermines the answer to the question "is the criminal justice system racist?" Furthermore, to argue that there is no systematic bias against minorities in formal decisions does not speak to the issue of whether the police are more likely to "talk down" to minorities or to show them less respect. The fact that a police officer may call a 40-year-old minority man a "boy" does not necessarily mean that the officer will be more likely to arrest that man (or, if he does, that his decision is based primarily on the racist stereotype). Harassment and indifference to important cultural needs could exist, by not being systematically reflected in formal processing decisions. Third, the assertion that the criminal justice system is not racist does not address the reasons why minorities appear to commit crimes at higher rates than whites even before coming into contact with the criminal justice system. It maybe that racial discrimination in American society has been responsible for conditions that lead to higher rates of offending by minorities, but that possibility does not bear on the question of whether the criminal justice system discriminates against minorities. Thus the question of whether the criminal justice system is racist must not be confused with that of whether minorities commit crimes at a higher rate than whites because of discrimination in employment, housing, education, and so forth. It may be that racial discrimination produces a gap in offending between minorities and white offenders move through the criminal justice system. If the gap dies not increase after the point at which offenses occur, the system cannot be held responsible for the gap that results at the end of the system (prison). Fourth, the assertion that the criminal justice system is not racist does not deny that racial prejudice and discrimination have existed in or even been the dominant force in the design and operation of the criminal justice system in the past. There is evidence suggesting that racism did permeate the criminal justice system in earlier periods of American history, especially in the South. The evidence regarding northern cities, however, does not support the discrimination in the criminal courts of nineteenth-century Philadelphia "or indeed for those in any northern city in the same period. But the question today concerns racial prejudice and discrimination. Fifth, I am not suggesting that the nondiscrimination theory has been proven by the existing literature. But surely the burden of proof rests on those who hold that the system is racist. Though I do believe that the weight of the existing evidence supports the nondiscrimination theory rather than the discrimination theory, I do not believe that the case for the nondiscrimination theory has been proven. The belief that the criminal justice system is racist is a myth in the sense that there is insufficient evidence to support this position.