The Latina/o prison population upsurge

The Latina/o presence in the US prison population today is troubling, especially in view of the dramatic increases over the last 20 years. In 2004, the rate of Latina/o incarceration in State and Federal prisons was 2.6 times greater than for Whites (1,220 per 100,000 compared to 463 per 100,000) (Bureau of Justice Statistics, 2005). As Walker et al. point out (2004, 105), "One in four federal prison inmates is Latino, even though fewer than one in eight US residents is Latino." However grave these statistics appear, the severity of the problem of Latina/o incarceration becomes ever more evident when one considers the exponential increase over the last two decades.

In concluding that Latinas/os are "the fastest growing minority group being imprisoned," the Bureau of Justice Statistics (1997, 9), found that from 1985 to 1995, "the number of Hispanics in prison rose by 219% , with an average 12.3% increase each year." While Latinas/os represented 10.9% of all state and federal inmates in 1985, by 1995, the percentage had grown to 15.5% (p. 9). Since then, annual growth in the Latina/o prisoner population has continued. The total percentage of Latina/o prisoners in state and federal jurisdictions had increased to 19.2% by the end of 2004 (Bureau of Justice Statistics, 2005, 8).

As Simon (2007, 141) observes, mass imprisonment in the United States has not produced "racially uniform" results.² In 2001, approximately 7.7% Latino males were current or former state or federal prisoners – almost three times the number of White males (2.65). In a lifetime, Latino males at 17.2% are also nearly three times as likely to go to prison as White males (5.9% ) (Bureau of Justice Statistics, 2003b, 5, 8).

When examining Latina incarceration rates for 2004, the Bureau of Justice Statistics (2005, 8) finds that "[ f] emale incarceration rates, though substantially lower than male incarceration rates at every age, reveal similar racial and ethnic disparities." Although African American women experienced an incarceration rate four times that of Whites (170 per 100,000 compared to 42 per 100,000, respectively), at 75 per 100,000, Latinas were not far behind at nearly twice the rate of White women (p. 8).

In a state-by-state look at Latina/o incarceration, the racial/ethnic disparities are strikingly severe. Incarceration rates of Latinos/as as compared to Whites can be summarized as follows:

• In nine states, between 4 and nearly 8% of adult Latino men are incarcerated.
• In 12 states, between 2 and 4% of Hispanic adults (men and women) are incarcerated.
• In 10 states, Latino men are incarcerated at rates between five and nine times greater than those of white men.
• In eight states, Latina women are incarcerated at rates that are between four and seven times greater than those of white women.
• In four states, Hispanic youths under age 18 are incarcerated in adult facilities at rates between seven and 17 times greater than those of white youth (Human Rights Watch, 2002, 2).³

Mass imprisonment, race, racialization, and Latina/o prisoners

A major contributor to the rise in Latina/o imprisonment rates is the phenomenon of mass imprisonment. As defined by Garland (2001a, 1, 2), mass imprisonment is characterized by unprecedented high rates of incarceration that are "markedly above the historical and comparative norm for all societies of this type," and by "the systematic imprisonment of whole groups of the population," rather than of individuals. With respect to this phenomenon, the United States far surpasses other comparable countries, such as those in Europe and Scandinavia, with an incarceration rate 6–10 times higher (p. 1). Additionally, Latinas/os increasingly appear to meet the criterion of a group systematically subjected to disproportionately high levels of imprisonment.

Citing LaFree et al. (1992) and Sampson and Lauritsen (1997), Loïc Wacquant (2001, 82) points out that racial inequality in the penal system becomes most discernible when one considers how the ethnic composition of prisoners in the United States reverses dramatically, "turning over from 70 percent white at the mid-century point to nearly 70 percent black and Latino today, although ethnic patterns of criminal activity have not been fundamentally altered during that period." Focusing on the African American experience, he posits that the current ethno-racial makeup of the prisons is part of a continuum that can be traced to the institutions that have historically provided the means for dominating and dividing persons based on race and ethnicity. Moreover, Wacquant argues (2001, 83–84) that just as the institutions of slavery and Jim Crow provided the means to keep "African Americans 'in their place,' i.e., in a subordinate and confined position in physical, social, and symbolic space" in earlier times, the ghetto and the ever-expanding prison system in the United States in the Post-Civil Rights era form "a carceral continuum that ensnares a supernumerary population of younger black men, who either reject or are rejected by the deregulated low-wage labor market, in a never-ending circulus between the two institutions." He posits that a symbiotic relationship between ghetto and prison exists that "enforces and perpetuates the socioeconomic marginality and symbolic taint of the urban black subproletariat, feeding the runaway growth of the penal system that has become a major component of the post-Keynesian state" (p. 84). Wacquant asserts further that this symbiosis "plays a pivotal role in the remaking of 'race' and the redefinition of the citizenry via the production of a racialized public culture of vilification of criminals" (p. 84).

If applied to Latinas/os in the United States, Wacquant's thesis resonates as similarly true, given the historical and present-day Latina/o experience and place in US society. Regarding the question as to which groups would be most vulnerable to incarceration at present, it is worth noting that, in addition to African Americans, other groups considered "nonwhite" were typically subordinated and targeted for discrimination in US history. As early as 1740, the South Carolina Slave Code identified "the people commonly called negroes, Indians, mulattos and mestizos have [ been] deemed absolute slaves, and the subjects of property in the hands of particular persons the extent of whose power over slaves ought to be settled and limited by positive laws so that the slaves may be kept in due subjection and obedience" (quoted in Hall et al., 1996, 37). Indeed, as the institution of slavery evolved in the United States, a person considered a mulatto or a person "of mixed race" raised the presumption of slavery (p. 191). This history is instructive as to how Latinas/os would be regarded in later years, since persons of mixed racial backgrounds, as many Latinas/os are, have been and often continue to be viewed with disdain, and subject to discrimination by the dominant "White" social structure. Consonant with Wacquant's analysis, Latinas/os, like African Americans, are perceived as a poor class of people of color that pose a threat to the social order, and thus must be controlled and dominated.

Historically, race has played a central role in defining US laws and policies having to do with Latin Americans and subsequently with Latinas/os in the United States. Premised on the ideology of the racial, religious, and cultural superiority of Anglo Americans known as Manifest Destiny, in 1848, at the end of the US-Mexican War, the United States wrested approximately half of Mexico's land base, an area that now comprises roughly one-third of the continental United States (Stephanson, 1995; Perea et al., 2000, 248; Morín, 2005). Indeed, as Horsman (1981, 208) notes "[ t] he catalyst in the overt adoption of a racial Anglo-Saxonism was the meeting of Americans and Mexicans, in the Southwest the Texas Revolution, and the war with Mexico." Advancing the image of Latin Americans as racially "other" and the White Anglo American as superior was key to justifying the US imperial enterprise of the 1800s, including, in addition to its conquests in Mexico by 1848, the subsequent colonization of Puerto Rico and of other islands and peoples in 1898 (Morín, 2005, 17–41).

In addition to justifying Anglo-American territorial expansion and hegemony, the racially negative depiction of Latin Americans played a crucial role in securing Anglo-American power and control over the conquered territories and the peoples of those territories. Although the Treaty of Guadalupe Hidalgo of 1848 was supposed to afford US citizenship and equal rights under US law to Mexicans in the conquered territories, contrary to international law, Mexicans were not granted equal rights and full protections. "Whiteness" became the standard for deciding who is or is not deserving of equal rights of US citizenship. The characterization and categorization of Mexicans in the newly conquered territories as mongrels, barbaric, and inferior provided abundant justification for their subordination and unequal treatment (Horsman, 1981).

Similarly, under present US law, Puerto Ricans in their own homeland do not benefit from full rights under the US Constitution, even though they were made US citizens through a unilateral act of Congress in 1917. As peoples of a territory colonized by the United States, Puerto Ricans cannot vote for the President of the United States who is empowered to recruit and order them to fight US wars. Moreover, they have no voting representation in the US Congress, a body that legislates on all of the most fundamental aspects of their political, economic, social and cultural lives (Perea et al., 2000, 246–366; Morín, 2005, 17–41). The Supreme Court decisions, known as the Insular Cases, that form the legal framework that have helped justify the separation of the right to political participation from citizenship for the people of Puerto Rico, as well as of Guam and the Virgin Islands, still operate today in a manner that casts Puerto Ricans as a form of "second-class citizens" (Rivera Ramos, 2001, 160–161). In fact, in Balzac v. Porto Rico [ sic] , 258 US 298 (1922), the US Supreme Court made clear that in spite of having been accorded "citizenship," Puerto Rico is not considered "part" of the United States and thus basic constitutional rights, including such fundamental rights to a trial by jury under the US Constitution, are not automatic, but can only be accorded if granted by the US Congress.

Conquest and the undermining of basic rights have led some analysts, such as Angel Oquendo (1996), to point out the parallel experiences of Puerto Ricans and Mexicans in ways that help define the concept of what it is to be "Latino" in the United States. Post-1848, Mexicans and many other Latino/a groups have continued to be disempowered and discriminated against, as US laws and the criminal justice system were readily infused with racialized portrayals of Latinos/as as "other" or as dangerous "aliens." As Bender (2003) points out, the stereotype of Latina/o as "criminally inclined" has persisted in US law, media, and society, from the earliest period of Anglo-American conquest to the present. Alfredo Mirandé (1987) has characterized the long trajectory of unequal treatment of Latinas/os under the US legal and criminal justice systems as "gringo justice." The racialization of Latinas/os within US society and its criminal justice system helped to establish and advance a system premised on biases that have continued to empower and favor Whites over Latinas/os and other people of color.

The 1855 "Greaser Act" – an anti-vagrancy law enacted in California that defined vagrants as "all persons who are commonly known as 'Greasers' or the issue [ children] of Spanish and Indian blood"⁴ – was a deliberate use of criminal law to specifically target persons of Latin American descent based on "racial" criteria. By the 1940s, Mexican Americans in Los Angeles had been relegated to the socioeconomic margins of society, as manifested by their poverty and segregation into barrios in a city that used to be a part of Mexico.

In an early example of the systematic racial profiling of Latinas/os, military and law enforcement personnel singled out for attack Latino youths who defiantly wore zoot suits as a form of self-identity and expression. Today, the 1943 Zoot Suit Riots are remembered as emblematic of a legal and criminal justice system predisposed to characterize Latina/o youths as criminals, in order to maintain Latinas/os subordinate to the dominant White society (Escobar, 1999; Acuña, 2007, 201–205).

Like African Americans, Latinas/os, too, have suffered the indignities of de jure segregation. In fact, the practice of school segregation of children of Latino ancestry was legal and common until the 1940s, when it was challenged in Mendez v. Westminster School District of Orange County in 1947⁵ – a case that served as a precursor to the landmark 1954 Brown v. Board of Education case. In Hernandez v. Texas, 347 US 475 (1954), decided by the US Supreme Court three weeks before Brown, the Court struck down the practice of excluding persons of Mexican descent from service as jury commissioners, grand jurors, and petit jurors. In its decision the Court acknowledged the many years during which Mexicans suffered Jim Crow-type treatment, including school segregation, separate bathroom facilities, and restaurants that held signs announcing "No Mexicans Served" (Hernandez v. Texas, 347 US 475, 479–480 [ 1954] ; See also, Olivas, 2006).

The upsurge in anti-immigrant and anti-Mexican sentiment in the 1950s, gave rise to yet another law targeting Latinas/os: "Operation Wetback." Under the federal program created by this law, growing nativist demands to stop Mexican migration were satisfied through a military operation that purported to deport undocumented Mexicans from the United States. As its derogatory name implies, safeguarding human and civil rights was not a concern. In fact, this law served as a pretext for illegal searches and seizures and resulted in the mass deportation of many Mexicans with US citizenship (Mirandé, 1987, 125–129; Acuña, 2007, 225–226; Healey, 2007, 310). As a result, from 1954 to 1959, Operation Wetback led to the deportation of more than 3.7 million persons of Mexican ancestry, many of whom were US citizens (McWilliams, 1948/1990, 315–318; Mirandé, 1987, 125–129; Perea et al., 2000, 317).

Today, in the application of contemporary US law and in the operation of criminal justice system, Latinas/os most often continue to be relegated to a "racialized" status. The use of abusive language and racial and ethnic slurs by police officers, racial profiling, the excessive use of physical and deadly force against Latinas/os and other people of color has been found to be a regular occurrence (Amnesty International, 1998, 17–54; Morín, 2005, 43–68; Walker et al., 2007, 110–138).

Another example of how racialized groups are targeted by law enforcement and discriminated against by the justice system is the common practice of racial profiling. Although illegal, in recent decades, racial profiling remains a problem in law enforcement. Its practice by New Jersey State Troopers during the decade of the 1990s, in which at least eight out of every 10 cars driven by Latinas/os and African Americans were singled out for searches on the New Jersey Turnpike, brought to the fore the systematic and institutionalized discrimination practiced in the day-to-day operations of the criminal justice system (Kocieniewski and Hanley, 2000, A1).

Reports issued by the New York State Attorney General and the US Commission on Civil Rights have provided additional evidence that in New York City, race has frequently been used as the sole criterion in the acts committed by law enforcement agents, making evermore apparent the problem of racial profiling as it affects Latinas/os (Spitzer, 1999; US Commission on Civil Rights, 2000). While the New York City Police Department insisted that the reason Latinos/as and African Americans were stopped and frisked at higher rates was because they live in high crime rate neighborhoods, the State Attorney General's report found that, even after accounting for differences in crime rates between communities of color and White communities, Latinos/as were still "stopped" by police officers 39% more often than Whites, across all crime categories, in New York City (Spitzer, 1999, x).

Studies conducted in other cities reveal a similar pattern of illegal racial profiling by the police. In a study conducted in Chicago, 80% of African American high school students and 62% of Latino/a high school students reported being stopped by police, with 62 and 63% , respectively, reporting that, when stopped, they were treated disrespectfully by the police (Freidman and Hott, 1995, 111). The pattern of racial profiling and "stops" by law enforcement officials strongly point to a continuation of longstanding stereotypes of Latinas/os and other people of color as a criminal element in society. This pattern along with other aggressive police tactics, stricter sentencing laws, and the practice of selective prosecution appear to play a part in elevating the number of Latinas/os and other people of color ending up in the prison system.

Consistent with Wacquant's hypothesis, many Latinas/os in the United States have experienced similar patterns of ghettoization as African Americans in the post-1960s' Civil Rights Era. Many often live in highly segregated and mostly poor areas in cities such as Los Angeles or New York, where they have been most often susceptible to abuse by law enforcement officers and the criminal justice system (Morín, 2005). Indeed, Wacquant (2001, 101), citing Ellis (1993), observes that by "the late 1980s, three of every four inmates serving a sentence in the prisons of the entire state of the New York came from only seven black and Latino neighborhoods of New York City which also happen to be the poorest areas of the metropolis, chief among them Harlem, the South Bronx, East New York, and Brownsville."

The experience of many Latinas/os who have lived under de facto segregation since the middle of the 20th century, is similar to that described by Wacquant (2001, 84), having gone from living in ghettos that resemble prisons to prisons that are now like ghettos. It should not come as a surprise, then, that analysts have concluded that Latinas/os manifested their dissatisfaction and disillusionment with the criminal justice system through their participation in the unrest that followed the acquittal of the White police officers involved in the Rodney King verdict in 1992, with a majority of those arrested being Latina/o and a considerable amount of damage occurring in areas where Latinas/os live (Martínez, 1993; Pastor, 1993).

Crime policies and their impact on Latinas/os

As mentioned earlier, the formulation of public policy around the fear of crime, and the enormous role of media in driving crime policies based on the fear, is also influential in producing incarceration rates skewed against African Americans and Latinas/os (Beckett and Sasson, 2004; Western, 2006; Simon, 2007). Given that national data show a decline in the number of crimes committed since the 1990s, it appears that "[ c] rime rates themselves may not have driven the prison boom, but long-standing fears about crime and other social anxieties may form the backdrop for the growth in imprisonment" (Western, 2006, 48). As Beckett (1997) notes, since the 1960s, politics and policymaking shifted from the "war on poverty" to the "war on crime" and the "war on drugs," often linking poverty with crime, especially poverty in "minority" communities. Notions about rehabilitation through the penal system gave way to a bourgeoning "culture of control," with fear-filled images of criminals as virtually irredeemable "'career criminals', 'drug addicts', 'thugs' and 'yobs'" (Garland, 2001b, 135). Coupled with this imagery is a profoundly racialized victim, "not all victims, but primarily white, suburban, middle-class victims, whose exposure has driven waves of crime legislation" (Simon, 2007, 76). Moreover, modern crime legislation has come to represent victims in many powerfully symbolic ways, even when victims may not be referenced in the legislation, and, thus, even police are often portrayed in such legislation as victims themselves, not only of criminals, but of defense lawyers, soft-on-crime judges, misguided parole and probation officers, and so on. Prison cells, meanwhile, are the purest expression of the public's embrace of and promise to protect the victims, and potential victims, of crime. (Simon, 2007, 76)

Although crime between 1993 and 2000 dropped by almost one-third, it continues to dominate both the news and entertainment media (Beckett and Sasson, 2004, 43, 100). To the extent that the media's influence on public policy can be measured, it appears to "encourage punitive attitudes, especially when the offenders depicted are African American" (p. 101). Hence, the power of the media lies not only in its ability to project fear but also it its capacity to convey a highly racialized picture of crime to the public.

Fear of violent crime has been a primary reason for adopting stiffer penalties that aim to incarcerate violent offenders. But it has not generally been the case that the vast majority of those imprisoned are there for committing violent offenses. In fact, the percentage of persons sentenced for nonviolent drug offenses constituted the largest group of federal prisoners, at 55% in 2003 and 60% in 2002 (Bureau of Justice Statistics, 2006c, 10).⁶ Of the prisoners held in state facilities, violent offenders from 1995 to 2003 most often have constituted only half of those incarcerated: 46.5% in 1995, 49% in 2001, and 51.8% in 2003 (Bureau of Justice Statistics, 2003a, 1; 2006c, 9).

Many analysts point out that current policies formulated on the fear of crime frequently produce racial/ethnic inequalities in the prison system (e.g., Beckett, 1997; Garland, 2001a, 2001b; Harris, 2002). "Get-tough," anti-drug strategies, commonly referred to as the "war on drugs," amount to "the single greatest force behind the growth of the prison population" (Human Rights Watch, 2003, 1). It is a strategy that has been increasingly recognized as a "war" being fought almost entirely in Latino/a and African-American communities, based mainly on a mistaken perception that communities of color bear most of the responsibility for drug-related crime in the country (Donziger, 1996; Cole, 2001; Human Rights Watch, 2003; Walker et al., 2007).

Contrary to conventional perceptions, Latinas/os have not been shown to be any more inclined to engage in illegal drug activity than Whites. Citing the 2002 National Survey on Drug Use and Health, the White House Office of National Drug Control Policy (2003, 1) makes plain that "[ t] he lowest rate of lifetime illicit drug use was among Hispanics (38.9% ) and Asians (25.6% )" while Whites had a 54% rate of drug use over a lifetime, followed by African Americans at 43.8% . Moreover, the data show Whites abusing certain drugs at higher levels. The Office of National Drug Control Policy found that "[ o] f 12th graders, whites tended to have the highest rates of use for a number of drugs, including inhalants, hallucinogens, LSD, ecstasy, heroin without a needle, amphetamines, sedatives (barbiturates), tranquilizers, and narcotics other than heroin" (p. 2).

Despite these statistics, the "war on drugs" waged in communities of color has had the "devastating" effect of skyrocketing drug-related arrests and incarceration rates of Latinas/os and African Americans (Donziger, 1996, 116). Of a total of 23,784 federal offenders charged with drug trafficking in 2001, most were Latina/o (44.7% ) while only about a quarter (26.2% ) were White and 28.4% were African American (US Sentencing Commission, 2001, 14, Table 4). For state prisons, the statistics are similarly dire. In 1996, 40% of Latinas/os sentenced to state prisons were convicted of drug-related crimes (Bureau of Justice Statistics, 1999, 6). When one considers the available evidence demonstrating that drug use among Whites is as high, and in some instances higher, compared to other racial and ethnic groups, it seems inconceivable that in 1991 Latinas/os and African Americans comprised 92% of drug arrests in the City of New York (Donziger, 1996, 116).

In the haste to combat the perceived drug problem in communities of color, recourse to racial profiling is common, with Latinas/os along with African Americans most often being singled out. There are documented instances in which law enforcement personnel have been trained to identify narcotics dealers by looking for "people wearing dreadlocks and cars with two Latino males traveling together." Further, a 1999 Drug Enforcement Agency (DEA) intelligence report identified major heroin traffickers as "Colombian, followed by Dominicans, Chinese, West African/Nigerian, Pakistani, Hispanic, and Indian. Midlevels are dominated by Dominicans, Colombians, Puerto Ricans, African Americans and Nigerians" (Harris, 2002, 49).

Drug-courier profiles used by federal agents at airports have included very long lists of seemingly odd and broadly defined categories, such as persons who "made a local call after deplaning ... made a long-distance call after deplaning ... carried a small bag ... carried a medium-size bag ... carried two bulky garment bags ... dressed casually ... left the airport by taxi," and anyone falling under the category of "Hispanics" (Cole, 1999, 47–49).

As Georgetown University Law Professor, David Cole (2001, 248) notes, "racial profiling studies ... make clear that the war on drugs has largely been a war on minorities. It is, after all, drug enforcement that motivates most racial profiling." Racial profiles appear not to reflect correctly the racial background of either illicit drug consumers or of traffickers. US government data about drug use points to Whites using drugs at much the same rate as persons from other racial or ethnic groups. In 2001, "[ t] he rate among blacks was 7.4 percent, whites 7.2 percent, and Hispanics 6.4 percent" (Substance Abuse and Mental Health Services Administration, 2002, 1). Although precise data in this area is difficult to obtain, illicit drug users also report that they typically obtain drugs from persons of the same race, suggesting that Latinos/as and African Americans may not necessarily be more involved in illegal drug distribution either (Riley, 1997, 1; Cole, 2001, 247).

The impact of the "war on drugs" has also adversely affected women generally, and Latinas in particular. Women in the United States have experienced a drastic increase in incarceration rates, nearly double the rate for men since 1980 (Mauer et al., 1999, 1). "Drug offenses accounted for half (49% ) of the rise in the number of women incarcerated in state prisons from 1986 to 1996, compared to one-third (32% ) of the increase for men" (p. 2). The number of women imprisoned for drug offenses in state facilities increased by 888% from 1986 to 1996, and by 129% for nondrug offenses (p. 3).

Latinas in prison fare even worse, compared to White women, as the following statistics indicate:

• In state prisons and jails, Hispanic females are incarcerated at almost twice the rate of white females (117 persons to 63 persons per 100,000 [ persons in the] population).
• Hispanic women are three times as likely to go to prison in their lifetime as compared to white women (1.5% versus 0.5% ).
• In the US general population, 9.7% of women are Hispanic. In the US prison population, 15% of women state prisoners and 32% of women Federal prisoners are Hispanic.
• Between 1990 and 1996, the number of Hispanic female prisoners rose 71% .
• In New York, Hispanic women are 41% of the state's prison population but constitute 44% of women sentenced to prison for drug offenses. (Sentencing Project, 2003, 2)

For Latinas, imprisonment represents more than a temporary a loss of personal liberty. As Díaz-Cotto (2006) points out in her study of Chicanas in prison, Latinas often face discrimination, harassment, and abuse. Moreover, Latinas must also cope with the harmful effects of imprisonment on their children and family life.

The courts, the police and Latinos

The disproportionately high rate of incarceration of people of color has provoked criticism of the laws that have brought changes in sentencing – including strict mandatory minimum sentencing laws, "three-strikes" legislation, and so-called "truth in sentencing" laws, designed to replace indeterminate sentences with clearly defined penalties, without the possibility of early release on parole (Jacobson, 2005, 45). Whether stricter state and federal sentencing policies have had a discriminatory impact on people of color has been a subject of considerable study (Walker et al., 2007, 231–280). Some prominent analysts affirm that changes in sentencing guidelines may have worsened the racial divide within the criminal justice system (e.g., Tonry, 1995). Others conclude that, on balance, discrimination occurs and harsher penalties are imposed, but within certain contexts, as when a person of color is accused of a crime against a White person as opposed to another person of color (Walker et al., 2007, 280).

Studies that specifically look at bias against Latinas/os in sentencing reveal a consistent pattern. In analyzing sentencing data collected by the State Court Processing Statistics program of the Bureau of Justice Statistics for the years 1990, 1992, 1994, and 1996, Demuth and Steffensmeier (2004, 1008) found "in general, Hispanic defendants were sentenced more similarly to black defendants than white defendants. Both black and Hispanic defendants tended to receive harsher sentences than white defendants."

In an earlier study examining ethnicity as well as race as a factor in sentencing, Steffensmeier and Demuth (2001), using quantitative and qualitative data gathered on Pennsylvania sentencing practices, show that Latinas/os are vulnerable to harsher penalties because of the prevalence of negative stereotypes and biases that associate Latinas/os with illegal drugs activities, low intelligence, and the rise in neighborhood crime. Their qualitative data reinforces this conclusion, with one particular Pennsylvanian judge from a county with an expanding Latina/o population, stating: We shouldn't kid ourselves. I have always prided myself for not being prejudiced but it is hard not to be affected by what is taking place. The whole area has changed with the influx of Hispanics and especially Puerto Ricans. You'd hardly recognize the downtown from what it was a few years ago. There's more dope, more crime, more people on welfare, more problems in school. (Steffensmeier and Demuth, 2001, 168)

A comprehensive review of bias in the courts confirms the familiar pattern: Both Latinas/os and African Americans experience bias in sentencing practices and policies, and as a result they receive harsher sentences than Whites. An examination of 40 recent and methodologically sophisticated studies on the effects of race and ethnicity on sentencing – including 32 studies of state court decisions and eight studies of federal court decisions – concluded that Black and Hispanic offenders – and particularly those who are young, male, or unemployed – are more likely than their white counterparts to be sentenced to prison; they also may receive longer sentences than similarly situated white offenders. Other categories of racial minorities – those convicted of drug offenses, those who victimize whites, those who accumulate more serious prior criminal records, or those who refuse to plead guilty or are unable to secure pretrial release –also may be singled out for more punitive treatment. (Spohn, 2000, 481–482)

The Sentencing Reform Act of 1984, 28 U.S.C. 991 (b)(1)(B) (Supp. 1993), designed to prevent "unwarranted sentencing disparity among defendants with similar records who had been found guilty of similar criminal conduct" appears not to have eliminated the influence on sentencing decisions of legally irrelevant factors, such as racial and ethnic characteristics and immigrant status. Based on data on 14,189 defendants convicted of drug offenses, Albonetti (1997, 817) points out that in spite of the new federal sentencing guidelines adopted as a result of the Sentencing Reform Act of 1984, "judges impose significantly more severe sentences on defendants who are not US citizens and on defendants who are black or Hispanic."

It is also important to note that biased sentencing is possible because federal judges can circumvent strict sentencing guidelines: Although the federal sentencing guidelines severely constrain judges' discretion in deciding between prison and probation and in determining the length of the sentence, they place only minimal restrictions on the ability of judges (and prosecutors) to reduce sentences for substantial assistance or acceptance of responsibility. Mandatory minimum sentences also can be avoided through charge manipulation. (Walker et al., 2007, 273)

Overwhelmingly, the studies on the effects of judicial and prosecutorial discretion on federal sentencing show that African Americans and Latinas/os are treated more harshly in sentencing than Whites (Walker et al., 2007, 273). Most notably, Steffensmeier and Demuth (2000) in examining federal court data gathered by the US Sentencing Commission from 1993 to 1996 found that the ability under the federal sentencing statute to "depart downward" from the sentencing guidelines resulted in leniency towards White defendants and harsher sentences for Latina/o and African American defendants (p. 722).

In examining the operations of the criminal courts and the treatment of Chicano rights movement members in Los Angeles in the late 1960s, Haney López (2003) puts forth the theory that race often functions as a matter of "common sense" in the courts, as it does in the course of many day-to-day events. He found that White judges, even unwittingly, tended to privilege those of their own race and socioeconomic background, while placing Mexicans at a disadvantage, basing their decisions on a form of "common sense" that implicitly accepts that White persons like themselves are generally worthy of such opportunities as serving on a grand jury above Mexicans (p. 8). Thus, Haney López asserts that such "common sense" practices are illustrative of how race today is constructed on a daily basis, and functions to the benefit of Whites over Latinas/os and other people of color, in the courts and in society at large.

The subject of whether police treat people of color differently from Whites has drawn considerable attention. Regarding police practices on the streets, criminologists have written about the racial halo effect, "a dynamic whereby being white American, in and of itself, reduces the odds of being viewed with suspicion or being questioned by an officer" (Weitzer and Tuch, 2006, 19; see also Weitzer, 1999). It has also been said that law enforcement officers are indoctrinated to uphold practices that result in the unequal treatment of people of color. In explaining why even an officer of color may treat persons of his own community unfairly, Anthony Miranda, a former New York City Police Sergeant and spokesperson for the National Latino Officers Association, states that Latina/o recruits undergo a process of assimilation into a police culture that seeks to separate them from their own communities and identities as Latinas/os (Morín, 2005, 81–88). In his view, officers – including Latina/o officers – often internalize a "them-versus-us" view of police-community relations, regardless of their race (p. 83). Once integrated into the force, police officers typically adhere to the notorious "code of silence" to shield each other from prosecution when facing severe allegations of wrongdoing, abuse or brutality against persons of color (Amnesty International, 1998; Human Rights Watch, 1998; Morín, 2005).

Myths and the media: projecting Latinas/os as criminals

A close look at Latinas/os and crime in the United States reveals that Latinas/os are not necessarily imprisoned at higher rates because they are more prone than Whites to commit crimes. As Walker et al. (2004, 4) point out in their study of Latinas/os and the US criminal justice system, Latinas/os are generally less likely to be involved in violent crime "than their non-Hispanic counterparts."⁷ The overwhelming majority of incarcerated Latinas/os are convicted for relatively minor, nonviolent offenses, and/or are first-time offenders;⁸ and Latinas/os are more likely than Whites to be arrested and charged for drug offenses even though they are no more likely than other groups to use illegal drugs, and less likely to use alcohol. Evidence in support of these facts notwithstanding, major news and entertainment media, generally, paint a very different picture of crime in the United States, frequently linking Latinas/os with criminal behavior (Bender, 2003). Invariably, such characterization helps promote attitudes that favor prison expansion as a solution to a perceived crime problem.

Studies show that the major media tend to be saturated with stories that inaccurately represent Latinas/os. As reported by the National Association of Hispanic Journalists, 66% of network news stories about Latinas/os in 2002 focused exclusively on three topics: crime, terrorism, and illegal immigration. José Padilla, the suspected "dirty bomb" terrorist, occupied "a central role in the coverage of Latinos ... with 21 network stories or 18 percent of all stories aired on Latinos" (Méndez-Méndez and Alverio, 2003, 3). Moreover, post-September 11 anti-immigrant sentiments and the politically opportunistic use of crime in election campaigns pose a formidable challenge to reversing the relentless drive to incarcerate. In spite of the facts that belie their portrayals by the media, Latina/o youth and Latina/o immigrants, in particular, are consistently and repeatedly associated with criminality conduct in the media.

Latina/o youths and crime

Despite a recent spike in violent crime,⁹ the country has experienced a precipitous drop in violent crime – 58% from 1993 to 2005¹⁰ (Bureau of Justice Statistics, 2006a, 1). Nonetheless, polls have shown an increase in the fear of crime as well as an upsurge in its media coverage. As Dorfman and Schiraldi found (2001, 3), the National Crime Victimization Survey reported violent crime at its lowest in 25 years; nevertheless, 62% of those surveyed believed that juvenile crime was rising. They note that the fear of being victimized by crimes committed by youth of color was especially strong, even though "Whites are actually three times more likely to be victimized by Whites than by minorities" (p. 4). Dorfman and Schiraldi show that media coverage has tended to present an exaggerated, unbalanced picture of crime. "While Blacks and Hispanics were overrepresented as violent offenders, Whites were underrepresented as violent offenders on the evening news" (p. 15).

Bias in the criminal justice system ostensibly correlates with the high rates of incarceration among Latina/o youth (Villarruel et al., 2002; Walker et al., 2004). National data reveal that Latina/o youth are charged with violent offenses at five times the rate of White youth and serve longer sentences than White youth – as much as 143 days longer for violent crimes (Villarruel et al., 2002, 2–3). In Los Angeles, Latina/o youth are incarcerated at rates much higher than White youth – 7.3 times as often from 1996 to 1998 – and Latina/o youth are prosecuted as adults more often than White youth – 2.4 times as often from 1996 to 1998 (Villarruel et al., 2002, 2).

The fear of youth gangs has spawned support for new laws that have had a disproportionate impact on youth of color (Villarruel et al., 2002; Walker et al., 2007, 386–390). Gang databases, provided for under laws enacted in California and Arizona, for example, have been reported to have become vehicles for unfairly targeting Latina/o youths and other youths of color (Villarruel et al., 2002, 62; Zatz and Krecker, 2003). While seemingly race-neutral, anti-gang laws carry heavier penalties for gang membership and have had a disparate impact on Latina/o youth, who are more readily identified as gang members than are Whites, by law enforcement officers (Zatz and Krecker, 2003, 192).

Latina/o immigrants and prisons

In recent years, legislation focused on reigning in immigrants entering the country has spurred anti-immigrant sentiments. In the national media, no one has been as effective and persistent in the proliferation of fear and false information about immigrants, as CNN's Lou Dobbs. In a recent exposé in the New York Times, David Leonhardt (2007) revealed that in 2003, Lou Dobbs had falsely stated on one of his broadcasts that, "One-third of the inmates now serving time in federal prisons come from some other country – one-third." Contrary to Dobb's assertions, at midyear 2005, noncitizens actually comprise less than one-fifth (19% ) of all prisoners in federal custody – well below one-third – and noncitizens in federal and state facilities combined only comprised 6.4% (Bureau of Justice Statistics, 2006b, 5). As Butcher and Piehl (2005) point out, immigrants to the United States actually have lower incarceration rates than other groups in the population. While it is assumed that factors such as low education levels and low average wages would predispose immigrants to engage in criminal conduct, in the main, immigrants tend to come to the country highly motivated to use their skills to forge a better life, and are not interested in run-ins with the law that would thwart this goal. Thus, Butcher and Piehl find that immigrants are typically self-selecting and not typical of the general population.

The presumed link between crime and immigrants from Latin America, and Mexico specifically, has been shown to be unsubstantiated. As an empirical study of Mexican immigrants revealed, "it is currently the case that immigration and criminal justice policies which appear neutral in relation to Hispanic immigrants, actually bias and distort public perceptions of immigration and crime by inflating Hispanic rates of imprisonment" (Hagan and Palloni, 1999, 617). In a comparison of noncitizen immigrants and citizens in state prisons, Hagan and Palloni found that after taking into consideration factors such as age and vulnerability to pre-trial detention, noncitizen Latin American immigrants are actually less likely to be involved in crime than citizens. The study notes that noncitizen Latin American immigrants come to the United States with strong cultural and family traditions that are incompatible with criminal behavior (pp. 630–631). In addition to finding that noncitizen Latin American immigrants are not more involved in criminal activity than citizens, they also noted that "by other measures of well-being – including smoking, alcohol consumption, drug use, and pregnancy outcomes – Mexican immigrants are generally found to do well and sometimes better than citizens" (pp. 630–631). To the extent that Latina/o cultural strengths serve to deter crime, the study's authors recommend that "we may wish to place the priority in policy formation on ways to preserve, protect, and promote the social and cultural capital that Mexican immigrants bring to their experience in the United States. An increasing reliance on imprisonment detracts from this goal by banishing immigrant males from their families and communities" (p. 631).

The distinction between US-born Latina/os and foreign-born Latin Americans is significant. Rumbaut et al. (2006, 84) make clear that: Both national and local-level findings ... turn conventional wisdom on its head and present a challenge to criminological theory. For every ethnic group without exception, the census data show an increase in rates of incarceration among young men from foreign-born to the US-born generations, and over time in the United States among the foreign born – exactly the opposite of what is typically assumed. Paradoxically, incarceration rates are lowest among immigrant young men, even among the least educated, but they increase sharply by the second generation, especially among the least educated – evidence of downward assimilation that parallels the patterns observed for native minorities.

Among the challenges Rumbaut et al. (2006, 85) identify for developing well-informed and reasoned criminal justice policy is that contemporary criminology has centered on race mostly along Black/White lines, keeping "ethnicity, nativity, and generation out of the analysis."¹¹ They point out that This is compounded by the national bad habit of lumping individuals into a handful off one-size-fits-all racialized categories (black, white, Latino, Asian) that obliterate different migration and generational histories, cultures, frames of reference, and contexts of reception and incorporation – omitting from scholarly scrutiny the complexities introduced by millions of newcomers from scores of different national and ethnic origins. (Rumbaut et al., 2006, 85)

Further complicating matters, Latin American immigrants are generally recognized as underserved by law enforcement agencies and are susceptible to negative experiences with the criminal justice system. They face numerous obstacles to establishing good relations with police and other law enforcement agencies, and many barriers to successfully traverse the criminal justice system, including language barriers and the fear of being subject to immigration law enforcement (Walker et al., 2007, 107). Moreover, as Johnson (2003, 346) points out, "[ j] udicially-sanctioned race profiling is central to the US government's enforcement of the immigration laws," adversely affecting Latinas/os, African Americans, and other people of color.¹² Hence, noncitizen immigrants have become more susceptible to aggressive and arbitrary immigration policies and practices.

In the period following the events of September 11, 2001, heightened enforcement of federal immigration laws has rendered Latina/o immigrants increasingly vulnerable. Not surprisingly, the number of persons detained by the US Immigration and Customs Enforcement (ICE) agency "more than doubled between 1995 and 2005" (Bureau of Justice Statistics, 2006c, 10). At year-end 2005, 19,562 persons were being held for immigration violations (p. 10). Moreover, as Mark Dow (2004) has documented, those in the US immigration prison system are subject to horrific arbitrariness and many forms of abuse by officials and guards that, for which they are unable to seek adequate redress due to their noncitizen status.

Although organizations, such as the Mexican American Legal Defense and Education Fund, have vehemently objected to new legislation that would further threaten the rights of immigrants, including proposed laws that would empower state and local police to enforce federal immigration laws (Walker et al., 2007, 117), in the current climate of anti-immigrant hostility, it is likely that undocumented immigrants will continue to confront new efforts to criminalize their status. As Rumbaut et al. (2006, 84) indicate, the driving forces behind the rates of incarceration of immigrants are the "myths and stereotypes about immigrants and crime [ that] often provide the underpinnings for public policies and practices and shape public opinion and political behavior."

Overcoming the challenges to change

Tragically, the many factors that contribute to mass imprisonment also present severe challenges toward the adoption of the most sensible reforms and changes in the criminal justice system that would lower incarceration rates in the United States. The impetus to continue to subordinate and dominate communities of color in US society, the formulation of public policy around crime and the fear of crime, and the role of the media in promoting fear and negative images of Latinas/os and other people of color are among the factors that not only favor the trend in prison expansion, but work to prevent change. Many proposals and strategies to address the disparate treatment of Latinas/os within the criminal justice system remain unimplemented.

Recent studies of Latinas/os and the criminal justice system have recommended measures that could help the criminal justice system rid itself of policies and practices that adversely and disproportionately impact upon people of color (Villarruel et al., 2002; Walker et al., 2004; Morín, 2005). Broader acknowledgement of the unfair impact of the criminal justice and correctional system on Latinas/os could be an important first step toward ending some of the most detrimental facets of the Latina/o experience within the criminal justice arena. Proposals to curtail racial profiling and other practices that lead to the harsher and longer sentences for Latinas/os and other people of color than Whites, are included among recent policy recommendations. Addressing longstanding inadequacies of the system that have negative consequences on Latinas/os – such as inadequate bilingual and culturally competent services – are also among the recommendations found in a number of analyses on Latinas/os and the criminal justice system (Villarruel et al., 2002; Walker et al., 2004; Morín, 2005).

There are also specific recommendations for reversing the mass imprisonment phenomenon which merit serious consideration and, in many instances, implementation. For instance, Jacobson (2005) stresses the need to recognize that mass incarceration has led to many inequitable results, including the unfair treatment of certain racial and ethnic groups. He calls for the downsizing of the prison system as a solution to the prison population explosion, and suggests various seemingly efficacious and cost-effective alternatives. His proposals support sentencing reform, strategies to reduce recidivism rates, job training, and increased community-based services.

Other sensible recommendations and approaches, as advocated by Travis (2005) and Jacobson (2005), seek to address the problems of recidivism and prisoner reentry. Their recommendations include creating or enhancing education opportunities and job training while in prison, the development of programs that help sustain and strengthen family and community ties during incarceration, and establishing projects that, in other ways, help enable incarcerated persons to become productive upon their release.

Greater dissemination of the accurate information about the realities of Latinas/os in relation to the criminal justice and penal systems could prove to be constructive and indispensable in the effort to mobilize communities and political support for the process of achieving substantive change. Comprehensive efforts in Latina/o communities, similar to that proposed by Villarruel et al. (2002) – efforts that involve engaging parents, youths, community, law enforcement, and the political process – provide a model for effecting needed and long overdue changes in the prison and criminal justice system – changes that may assist in turning around the dangerous trend toward increased Latina/o imprisonment.

Notes

¹ Data collected by the US Justice Department's Bureau of Justice Statistics are cited throughout this article. The Bureau of Justice Statistics uses the US Census Bureau as its collection agent to gather information about the prison population in each of the 50 states and the Federal Bureau of Prisons (Bureau of Justice Statistics, 2005, 11). Unlike other data collected under four federally recognized racial categories (White, Black, Asian or Pacific Islander, and American Indian or Native Alaskan) used by government agencies, including the Uniform Crime Reports from the Federal Bureau of Investigation (FBI), the Bureau of Justice Statistics National Prisoner Statistics program data includes "Hispanics" as a category in gathering information. While inconsistencies in the collection and use of the "Hispanic" designation occur state by state (Walker et al., 2007, 14–16), the Bureau of Justice Statistics data on the racial and ethnic composition of the prison system is considered among the most reliable information of its kind available and, therefore, it is used widely in criminal justice analyses.

² Both data consistently show African Americans and Latinas/os as having significantly higher incarceration rates than Whites. Why African American incarceration rates are higher than Latino requires further study and empirical analysis beyond the scope of this article.

³ Human Rights Watch (2002, 1) based its findings on the US Census 2000 data on race, gender, and age of persons in all forms of confinement facility for the 50 US states. An explanation of the Census 2000's methodology can be found at http://factfinder.census.gov/servlet/MetadataBrowserServlet?type=subject&id=GQ_USF1&d
sspName=DEC_2000_SF1&back=update&_lang=en.

⁴ cf. Act of April 30, 1855, ch. 175, § 2, 1855, Cal. Stat. 217; quoted in Haney López (1996, 145).

⁵ Mendez v. Westminster School District of Orange County (64 F. Supp. 544, 549 (S.D. Cal. 1946), aff'd, 161 F.2d. 774 (9th Cir. 1947).

⁶ The Bureau of Justice Statistics (2001, 12, Table 19) distinguishes between violent crimes, such as homicides and robbery, from nonviolent crimes, such as property offenses (e.g., burglary and fraud), drug offenses, and public-order offenses (e.g., immigration and weapons violations).

⁷ Walker et al. (2004, 4) support this claim based on data from the Bureau of Justice Statistics (2000).

⁸ Walker et al. (2004, 4) cite Kamasaki (2002).

⁹ Preliminary crime figures for January to June 2006 released by the Federal Bureau of Investigation (FBI) show that violent crime rose 3.7% compared to levels for the first half of 2005, while property crimes for the same period dropped by 2.6% (Federal Bureau of Investigation, 2006). Notwithstanding this recent spike in violent crime, violent crime rates today remain well below the rates registered in 1973, 1983, and 1993 (Bureau of Justice Statistics, 2006a, 5).

¹⁰ "The overall violent crime rate fell 58% from 51 to 21 violent victimizations per 100 persons age 12 or older between 1993 and 2005" (Bureau of Justice Statistics, 2006a, 5).

¹¹ As argued by Moran (1997), the "unique needs and characteristics" of US Latinas/os and immigrants from Latin America deserve increased consideration by government officials and policymakers. This author holds, as do Rumbaut et al. (2006), that this is true, but not at odds with an understanding of the ways in which Latinas/os and Latin American immigrants have been "racialized" in the US context, resulting in unjust treatment in the administration of criminal justice system and immigration policies and practices.

¹² Johnson (2003, 346) cites United States v. Brignoni-Ponce, 422 US 873, 886–887 (1973), as the US Supreme Court precedent for making "Mexican appearance a relevant factor" in justifying a Border Patrol stop.

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About the author

José Luis Morín is Interim Dean for Undergraduate Studies at John Jay College of Criminal Justice, City University of New York. He holds an academic appointment in the Puerto Rican/Latin American Studies Department, which he previously chaired, and is a member of the faculty in the Ph.D. Program in Criminal Justice at the college. His areas of specialization include domestic and international criminal justice, civil rights and international human rights, race and ethnicity in the United States, Latina/o studies, and US–Latin America relations. Prior to joining the faculty at John Jay College in 1998, he was a Visiting Professor at the University of Hawai'i at Mânoa, where he taught courses on international law and Indigenous Peoples' rights. He has also worked for many years as a civil rights and international human rights attorney with organizations such as the Puerto Rican Legal Defense and Education Fund and the Center for Constitutional Rights. Dean Morín is author of Latino/a Rights and Justice in the United States: Perspectives and Approaches (Carolina Academic Press, 2005).