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It is a general human ethical principle not todiscriminate individuals based on ethnic, religious and racial aspects since it is morally wrong and considered a violation of the principle of equality. The principle of equality urges that people should be treated equally but not based on race or any other form of difference. In the United States, the judicial system and the laws have been criticized for distributing benefits and burdens based on race. Assigning a person to a racial category has been a routine in deciding a person’s rights and obligations in the past. As underpinned by Michelle Alexander in her book The New Jim Crow: Mass Incarceration in the Age of Colorblindness, the system of laws, customs, intuitions and policies operates on a biased background that is determined by race. Alexander considers the persistent mass incarceration of the black youths as a new form of Jim Crow policy, which was developed as a set of segregating the black community. The African Americans perceived it as a legitimization of anti-black racism. Therefore, the current mass incarceration of the black youths in the US shows the signs of Jim Crow laws of the 1866s. Thus, based on the work of Michelle Alexander, the paper seeks to analyze the issue of racial prejudice in the judiciary system of the United States, discuss the case of McCleskey v. Kemp as an example of unfair trial based on racial discrimination and cover the extent to which the Constitution has attempted to correct racial discrimination in the criminal justice system. Lastly, the paper will propose a statutory amendment to address this issue.

McCleskey v. Kemp case is a case of a black man who was sentenced for killing a white a police officer in Georgia. The accused was later sentenced to death. However, in a writ of habeas corpus, McCleskey claimed that the decision on his case was made based on racial discrimination. In his plea, he argued that, according to the statistical study, the imposition of death penalty depended on his race and that of the victim. He claimed that, according to the studies, defendants are more likely to receive a death penalty if they are black and the victims are white. The case prompted a question whether McCleskey sentence violated the eighth and fourteenth amendments. However, the jury held the there was no elements of discrimination since McCleskey could not prove that there was a discriminatory effect during the time of the trial or any constitutional violation. The controversy in the case arose when Justice Powell ignored the statistical study provided and argued that the data presented by McCleskey was a material meant for the legislative body but not the courts. As much as the ruling was stated as justified and containing no signs of discrimination, the champions of the campaign against racial discrimination in the criminal justice system like Alexander see it as a crying injustice and infringement of the rights of African Americans.

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The debate regarding this issue has arisen in the legislative and judicial bodies, and several amendments and policies have been adopted to reduce the racial discrimination in the criminal justice system. Moreover, the judicial system has acknowledged the elements of racial disparity in their operations and put measures to reduce it. The court system launched  research and assessment procedures, which were aimed at studying the racial aspects regarding arresting and convicting the offenders, and possibly, at understanding the police encounters with the public.

Therefore, the first remedy tool to curb racial disparity in the judicial system is racial profiling policy. It tends to govern the conduct of the police officers of different levels, whether federal, state or local to observe a substantial discretion when determining if a person’s behavior is suspicious enough to demand further investigation. The Department of Justice (DOJ) boosted the efficiency of racial profiling by issuing guidance that outlawed the use of racial and ethnicity aspects by the police officers as an element of suspicion while ignoring specific information. However, the rule of racial profile has an exception; it is not applicable when dealing with matters of national and borders security. The police will have to stop, frisk, and interrogate any individual who is found at the borders of the United States. Additionally, the rule does cover religion and nationality aspects since it is not applicable or binding on state or local law enforcement.

Another tool used is the “stand your ground” laws. Almost every state has adopted this policy as a means to alter the common law under the doctrine of self-defense. The principle of self-defense allows an individual to retreat from any accusation of murder since based on the right to present their case. The passing and implementation of the “stand your ground” laws have intensified the prejudiced treatment of suspects of color. However, this rule has some controversies, as its application seems to have double standards. For instance, when a white person kills a black person, he or she is more likely to be justifiable in the killing while a black person is likely to be convicted in a similar scenario. Another controversial aspect of this law is that, since its implementation, it has led to an increase in the number of homicides. The defendants tend to commit murders deliberately and argue with the “stand your ground” law by pleading to have acted in self-defense. However, the law has attained its primary objective of reducing racial disparity in the criminal justice system.

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The third tool used is the police misconduct law. This law has been introduced since the 1970s, but it was often ignored by the judicial system. It accounts for the police acts of brutality and misconduct against individuals of color, especially during horrific violence. The police were known to use excess force that amounted to brutality, which was particularly harsh on the individuals and communities of color. Additionally, this law was set to act on unconstitutional stop- and frisks, which arose when the skin color was an element of suspicion. According to the law, the police is accountable for all their misconducts, and it is immaterial whether the victims incur damages or not. According to a recent research conducted by the Department of Justice, the law has succeeded in reducing instances of police misconduct and power misuse. The law has become effective after the Civil Rights Division reviewed it and regarded it as one of the comprehensive reforms in the fight against racial disparity.

The impact of prosecutorial discretion on individuals of color has been a subject of active discussion and a cause of disagreement in the criminal justice system. Over the years, defendants of colors have been receiving negatives prejudice judgments due the system of prosecutorial discretion. Unlike the white defendants, blacks and Hispanic individuals are often at a high chance of being sentenced to a term of incarceration. The US sentencing commission stated that it had plans to adopt common methods of charging offenders and abolish the practicing of pleas. The commission found that differences in charging and plea practices have contributed to several racial disparities in sentencing. Additionally, research has documented that approximately ten percent more of the black defendants in the federal system receive longer terms of incarceration than their white counterparts arrested for similar crimes. Surprisingly, a half of these disparities can be accounted to the prosecutors’ initials charging. The majority of the federal prosecutors are known to be likely to file charges with mandatory minimum sentences against black defendants .The evidence of racial disparity in the criminal justice system is underpinned by the fact that the accused black individuals are less likely to turn away from incarceration as a punishment.

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To solve the above problem, the Department of Justice enforced a new policy law to guide the prosecutorial discretion. The primary objective of the new law was to ensure that non-violent drug offenders and low-level criminals who do not have close ties with large-scale criminal groups such cartels and gangs will not be  subjected to charges that impose mandatory minimum incarceration. In addition, the Office of the Attorney General plans the implementation and use of diversion programs such as community services initiative and drug treatment and awareness. The fight against drugs is the cause the debate at hand, and the primary solution is to carry out social campaigns against the use of illegal drugs. After the implementation of this program in August 2015, the federal drug prosecution has recorded a tremendous decrease in drugs-related cases.


Under the discriminatory law enforcement and the prosecutorial practice, the current government or the incoming government should amend three essential aspects. First, the ruling administration should prohibit federal law enforcement from condoning and participating in sanctioning and racial profiling by issuing executive orders. Second, the ruling administration should urge the National Congress to pass and implement anti-racial profiling laws. For instance, the Congress amends the End Racial Profiling Act. Finally, the department of justice should critically investigate and urge the agencies responsible for the “stand your ground” law to review it and transform it in a way that will not harm the defendants of color disproportionately. 

Under the discrimination of justice system and sentencing, the government should review and repeal the mandatory minimum penalties on drug and other non-violence offenses. Additionally, the DOJ should introduce an education program of training to police officers and prosecutors to reduce implicit and explicit racial profiling. Finally, in reference to McCleskey v. Kemp case, the Congress as well as the criminal justice committee should be urged to repeal the death penalty. Moreover, the government should support the Congress in launching federal legalization to remove capital murder from the federal law.

Alexander’s urge for a reform in the judicial system regarding racial discrimination is justifiable. The United States have become the number one jailer nation in the world, and the victims are majorly the black community. Alexander terms the  handling of  blacks’ cases by the judicial system as a New Jim Craw in that it has led to mass incarcerations of African-Americans to an extent of exceeding the number of the enslaved African-Americans in the 1850s. The Department of Justice is aware of the instances of disparities in the judicial system, and it has provided tools to remedy the injustices. For instance, the DOJ has implemented rules such as “of racial profiling,” “stand your ground,” police misconduct, and a review of the prosecutorial discrimination. These steps have reduced instances of imposing charges with mandatory minimum sentence on the black defendants. However, the attempt to introduce effective policies that are trying to combat the prevailing racial injustices has suffered some shortcomings. For instance, the “stand your ground” law creates double-standard effect, which facilitates an increase in homicides. Therefore, to develop an efficient tool that can reduce the injustices; a significant amendment should be made on both discriminatory law enforcement and prosecutorial practices to eliminate the disparities in justice system and sentencing.