Latinos in the Criminal Justice System

In 2016, the poverty rate among Latinos (19.4 percent) was more than twice as high as for whites. Median income for Latinos ($47,675) was a quarter less than that of their white counterparts ($65,041).

Latinos in CJ System_chart3.jpg

More than a third of all Latinos are foreign born, and nearly a third of all Latinos ages 5 and older report that they speak English “less than ‘very well,” according to the U.S. Census.

While not constituting a racial category in official statistics, Hispanics are often perceived racially as being nonwhite.

Long-established practices and policies in the criminal justice system greatly disfavor poor people, communities of color and the foreign born. For the nation’s 57 million Latinos, the results are most obvious in their overrepresentation among prison inmates. But Latinos’ disadvantages begin at the first encounter with police and then accumulate at every successive stage. As with the overall problem of mass incarceration, a potent solution lies in addressing the misuse of jails — the processes that put people there and keep them there longer than necessary. 

Simply being poor can produce jail time and even prison sentences when money bonds are the price of freedom and courts impose fees and fines with no consideration of an individual’s ability to pay. And the collateral costs escalate for poor people who face a greater likelihood of losing employment and housing because of even a short stay in jail.

Add to that the potential complications that noncitizens, including lawful permanent residents of longstanding,  face interacting with a criminal justice system that is increasingly intertwined with immigration enforcement. And all the while they are trying to overcome language barriers that hinder effective relations with law enforcement.

Finally, blacks and Latinos routinely contend with overpolicing and discriminatory practices evident in even the most routine interactions with law enforcement such as traffic stops

“People of color are overrepresented in the criminal justice system. Race, whether consciously or unconsciously, affects every discretionary point in the criminal justice system.”

That was among the conclusions drawn by 25 criminal justice leaders — public officials, practitioners, advocates and researchers — in a 2015 report by the Brennan Center for Justice at New York University. 

The Brennan report, and much other research, portrays the disparities experienced by blacks and Latinos as the cumulative result of many decisions that begin with the first encounter with police and can continue beyond imprisonment to the terms of probation and parole. Much of that disadvantage accumulates in the early stages of the criminal justice process when decisions are made about whether to jail people who have yet to be convicted of a crime. 

Disparities in traffic
stops and searches

An analysis by the Stanford Open
Policing Project.

Some of the key decision points include the greatly disproportionate likelihood of being stopped by police, of being searched once stopped and of being arrested for a minor offense. Disparities also develop in decisions over who gets detained after charging, with blacks and Latinos more than twice as likely to end up in jail pending trial. Among those who are released, the terms of supervision are more onerous than for whites, leading to a disproportionate share of technical violations that put individuals back in jail. Meanwhile, the fines and fees imposed on defendants disproportionately burden low-income blacks and Latinos who also face aggressive collection tactics and compounding debt. 

Summarizing the cumulative impact on individuals who have yet to be convicted of a crime, the Brennan report concludes:

“Jails provide a gateway to deeper entanglement in the criminal justice system. Often, decisions made before a defendant arrives at the jailhouse door — by police, prosecutors, judges or others — result in the racial disparities that are eventually reflected in jails. These disparities in turn help create racial disparities throughout the rest of the criminal justice system.”

 
For more information on sentencing disparities for Latinos and African-Americans with state-by-state analyses, see the Sentencing Project’s 2016 report “The Color of Justice: Racial and Ethnic Disparity in State Prisons.”
 

Disparities

Latinos’ cumulative disadvantage in the criminal justice system becomes clear in view of the disparities in the rates at which they end up behind bars compared with whites. 

Latino men were incarcerated at three times the rate of white men in 2016, according to data from the U.S. Bureau of Justice Statistics, and even as incarceration rates for all groups have fallen over the past decade, the disparity has remained. Indeed, with new historical data, BJS finds that the number of Latinos held in state or federal incarceration increased between 2006 and 2015 while the number of whites and blacks declined. Meanwhile, the Pew Research Center reports that in 2016, Latinos represented 16 percent of adults in the U.S. but accounted for 23 percent of the prison population. 

 
Incarceration Rate in State and Fed copy1.jpg
 
 
Bureau of Justice Statistics

Data on the Latino jail population in county and municipal facilities are somewhat fragmented and inconsistent. 

Jail incarceration rates and disparities
State by State

Vera Institute Interactive

Nonetheless, signs of disparities abound. Latinos have higher incarceration rates than whites in states with very high overall jail incarceration rates (measured as the number of people jailed per 100,000 residents age 15 to 64) as well as in those with low rates and some in between, according to a data analysis by the Vera Institute of Justice. 

The range of disparities widely reflects differences both in local policies and in data collection mechanisms. For example, in Minnesota, with a very low overall incarceration rate, Latinos were jailed 150 percent more frequently than whites in 2015. In California, also a state with a relatively low overall incarceration rate, there was only a 40 percent difference. The same year in Pennsylvania, with a very high overall rate, the disparity was of 163 percent while in Louisiana, also a high incarceration state, the spread was 45 percent. Disparities differ widely and inconsistently from state to state, and the overall incarceration rate does not seem to matter. 

Latino Public Opinion on Criminal Justice
Presentation and
press brief

These disparities do not go unnoticed by Latinos across the country. LatinoJustice PRLDEF, a civil rights organization, commissioned Latino Decisions to conduct a first-of-its-kind national poll assessing Latinos’ attitudes toward the criminal justice system. Released in January 2018, the poll found that Latinos overwhelmingly believed they were more likely to be targeted by law enforcement and be subject to unlawful deadly force than white people. They were also overwhelmingly in support of rehabilitation over incarceration and restoring the vote to people with felony convictions. 

 
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Source: Vera Institute. Incarceration Trends

Low income

“Poor people are held in jail to await trial when they cannot afford bail, fined excessive amounts, and hit with continuously mounting costs and fees. Failure to pay begets more jail time, more debts from accumulated interest charges, additional fines and fees, and, in a common penalty with significant consequences for those living below or near the poverty line, repeated driver’s license suspensions. Poor people lose their liberty and often lose their jobs, are frequently barred from a host of public benefits, may lose custody of their children, and may even lose their right to vote.”
— Peter Edelman, “Not a Crime to Be Poor: The Criminalization of Poverty in America” (2017)

 
“... [T]he State cannot justify incarcerating a probationer who has demonstrated sufficient bona fide efforts to repay his debt to society, solely by lumping him together with other poor persons, and thereby classifying him as dangerous. This would be little more than punishing a person for his poverty.”
—Justice Sandra Day O’Connor, Bearden v. Georgia,1983
 

The economic situation of many Latinos in the U.S. contributes to overrepresentation in the criminal justice system. The Joint Economic Committee of the U.S. Congress found that 21.4 percent of Latinos, and 28.9 percent of Latino children, lived in poverty in 2015. White households’ median net worth is 10 times that of Latinos, whose wealth decreased 40 percent following the Great Recession. Low-income communities are more likely to experience crime as well as overpolicing. Not only are poor communities more likely to get caught up in the criminal justice system, but they also are disproportionately affected by its consequences, such as unemployment, unstable housing and mounting fines and fees. 

“Los Que No Cuentan ... Latino Lives Discounted”
By Franklin Cruz, Justice Management Institute

Over the past two decades, the criminal justice system has greatly increased its use of bail bonds, a practice that greatly disfavors low-income populations by linking their freedom to their ability to make larger cash payments. Between 1990 and 2009, the share of pretrial releases involving financial conditions rose from 37 percent to 61 percent, and nearly all of that reflected an increase in the prevalence of surety bonds, the type of bail that typically involves debt to a bail bondsman, according to a study by the Bureau of Justice Statistics. About 9 in 10 detained defendants had a bail amount set but were unable to meet the financial conditions required to secure release, according to the BJS report.

The cost of this growing reliance on bail bonds has fallen heavily on Latinos. The Pretrial Justice Institute found that Latinos are disproportionately more likely than whites to be given monetary bail rather than being released on their own recognizance. High bail amounts can prevent people from getting out of jail — often harming employment, housing and families — and make it much more likely for defendants to take a plea bargain rather than going to trial. High bail amounts put further economic stress on families. 

Bearden v. Georgia
The Supreme Court on unconstitutional fines

Fees and fines constitute another form of penalty that falls hard on poor people, particularly Latinos. And, it is not just that poor people have trouble coming up with the money. Failure to meet deadlines often results in additional fines that continuously compound if the person is unable to pay. Moreover, failure to pay can lead to additional charges, a bench warrant, arrest and jail time simply because a person is poor. As such, fees and fines are important element in the cumulative disadvantage faced by Latinos in the criminal justice system. 

 A 2015 report by the White House Council of Economic Advisers concluded that since the 1990s, state and local governments have increasingly turned to monetary sanctions to offset the costs of rising incarceration rates. The White House report found that 12 percent of incarcerated persons were subject to fines in 1986 but that by 2004 the figure had increased to 37 percent and that when fees are included, 66 percent of all prison inmates had been subject to some form of monetary sanction. 

Fines and fees are more commonly applied in cases of misdemeanors and minor infractions than in cases involving felony charges. Meanwhile, the number and type of fees have risen substantially. For example, a 2010 Brennan Center report found that Florida had added 20 categories of financial obligations since 1996. 

The lists vary widely by state, but fees can be charged for representation by a public defender, court appearances, room and board in jail, parole and probation services, and electronic monitoring. Fines and additional fees often accrue with a failure to pay an original fine on time, producing a cascade of consequences that can rapidly outstrip an individual’s ability to pay, thereby increasing the likelihood of incarceration. 

Given that fees and fines are typically assessed without consideration of an individual’s ability to pay, the White House report asserted that fines “serve as a regressive form of punishment as the same level of debt presents an increasingly large burden as one moves lower on the income scale.” Since Latinos are disproportionately concentrated at the low end of the income scale, they suffer disproportionately from the reliance on fees and fines as a form of punishment and a means to generate revenue. 

The same is true with bail bonds. The poor are inevitably disadvantaged if a bank balance determines whether an individual can leave jail while awaiting trial. As the White House report concludes, “the growing use of bail bonds, meanwhile, has often resulted in jurisdictions detaining the poorest defendants, rather than those most likely to pose a risk to public safety.”

Mental health

People suffering from mental illness are dramatically more likely to serve jail time. The Bureau of Justice Statistics reports that 44 percent of jail inmates have been diagnosed with a mental disorder by a health professional, and 26 percent of those inmates reported suffering symptoms of serious psychological distress in the prior 30 days. Latino communities have unique vulnerabilities in the area of mental health. In a 2016 survey by the American Psychological Association, Latinos were the demographic group that reported the highest levels of stress, which contributes to depression and other mental health problems. Furthermore, it is well-documented that discrimination and uncertainty around immigration status can harm mental well-being. 

While mental health problems affect all communities, many barriers prevent Latinos from accessing the services they need. The U.S. Department of Health and Human Services reports that in 2014, Latinos received mental health treatment half as often as whites. This was due, at least in part, to lack of health insurance coverage, biases and cultural incompetency in treatment settings, language barriers, and stigma around mental health issues. Barriers to proper treatment put Latino communities at a heightened risk of more severe mental health problems.

People of color

Like African-Americans, though to a lesser extent, Latinos are more likely to be stopped, searched and arrested than their white counterparts. Similarly, blacks and Latinos are more than 50 percent more likely than whites to have an interaction with police that involves a use of force of some kind, and a variety of factors including the characteristics of the individuals involved and the context of the encounter do not eliminate the racial disparities, according to a 2018 study published by the National Bureau of Economic Research. Multiple factors are at work, but there is growing recognition, including among law enforcement agencies, that implicit bias is part of the problem. 

Meanwhile, these well-established tendencies have had an impact on public opinion. One major national survey found that Latinos, like blacks, are much more likely than whites to say that police violence is a serious problem nationally and are less likely to express trust in the police who patrol their communities. Less than half of Latinos in a Pew survey expressed confidence that police will treat Hispanics and whites equally. The sizable fraction of the Latino population — nearly one-fifth — made up of unauthorized immigrants adds another complication. A 2012 survey conducted in Cook (Chicago), Harris (Houston), Los Angeles and Maricopa (Phoenix) counties found that 44 percent of all Latinos and 70 percent of undocumented Latinos reported being less likely to contact the police if they have witnessed or been a victim of a crime because they fear that police will ask about their immigration status or the status of people they know.