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Microaggressions in thecriminal justice system atdiscretionary stages andits impact on Latino(a)/HispanicsMigdalia DeJesus‐Torres a

a John Jay College of Criminal Justice , NewYork, USAPublished online: 23 Apr 2010.

To cite this article: Migdalia DeJesus‐Torres (2000) Microaggressions in thecriminal justice system at discretionary stages and its impact on Latino(a)/Hispanics, The Justice Professional: A Critical Journal of Crime, Law and Society,13:1, 69-89, DOI: 10.1080/1478601X.2000.9959574

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The Justice Professional, 2000, Vol. 13, pp. 69-59 © 2000 OPA (Overseas Publishers Association) N.V.Reprints available directly from the publisher Published by license underPhotocopying permitted by license only the Gordon and Breach Publishers imprint.

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MICROAGGRESSIONS IN THE CRIMINALJUSTICE SYSTEM AT DISCRETIONARY

STAGES AND ITS IMPACT ONLATINO(A)/HISPANICS

MIGDALIA D E J E S U S - T O R R E S

John Jay College of Criminal Justice, New York, USA

A common microaggression is to identify groups not by how they identify themselves, but bylabels that are convenient to use in identifying them. A homogenizing term such as Hispanic,that is on the "surface neutral," serves multifaceted purposes some of which appear legiti-mate, but is confusing among others. Microaggressions are generally justified by dominantcultural values, custom, tradition, religion, beliefs, mores, and socioeconomic factors. Thispaper demonstrates whether the study of microaggressions and the intersections of color,ethnicity or race, privilege and power is helpful in the pursuit of discovering whether discrimi-nation and prejudice is a cause.

Keywords: Microaggressions; ethnic heritage; victimization; racial groups

Microaggressions based on color, ethnicity, or "race" create microinequitiesthat are damaging individually and collectively. Microaggressions target anindividual for the purpose of undermining the well being of the wholegroup. They may be characterized as "...actions which are unjust towardsindividuals, when reasonable people would agree the particular treatmentof the individual occurs only because of a group['s] characteristic^]."1

These shared traits need not necessarily be manifested in the individual,but once identified with the group the individual assumes the group's iden-tity. A common microaggression is to address a Latino(a)/Hispanic by ask-ing the individual his/her ethnic heritage and once the identification hasbeen established exclaim: you don't look like a Latino(a)/Hispanic orsound like a Latino(a)/Hispanic and expect this statement to be accepted asa compliment. A victim of a microaggression seldom takes action to rem-edy the situation because it requires having to "educate" or sensitize theindividuals or institutions responsible for this type of aggression from a

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position of equal power and status. Microaggressions are distinguishablefrom other aggressions "....by the fact that for all practical purposes onecannot do anything about them; one cannot take them to court or file agrievance."2

They are fiendishly efficient in perpetuating unequal opportunity to justicewhen nurtured and nourished by bias and stereotypes (Davis, 1989; Rowe,1990).3 A specific bias (an inclination or temperament or outlook) allowsfor a specific related stereotype to be readily accepted. An example of abias and stereotype: Judges are not biased because they interpret the lawwhich is blind and just. A stereotype is a set of distinctive traits selectedout of context and exaggerated to construct an image or shorthand depic-tion, "...thereby establishing categories about specific groups of personswhose members are considered to be equivalent in functionally importantrespects."4 The use of stereotypes in police work, and in other areas of thecriminal justice system is well documented (Carter, Skolnick, Petersilia,Gunnar Myrdal, Geoffrey and Dunham, and Walker et al.).5 The justifica-tion for the use of specific damaging stereotypes as functionally necessaryto fulfill an institutional need avoids the consideration that it fostersprejudice.

Prejudice against a particular individual because s/he is a member of agroup is, categorical and generalized in thought, inflexible and negative incontent when addressing the disenfranchised (Arendt, 1951; Apostle,1983; Bierly, 1985).6 The prejudiced has attitudes not reversible evenwhen they come in contact with contrary information and evidence thatexonerates the victim being targeted for a particular "disadvantage, trans-gression, or status" (Tompkins et al, 1996; Rowe, 1990; Banks, 1993;Dovidio and Gaetener, 1986; Vazques and Bahn, 1979).7 An individual ora group is targeted as a recipient because prejudice fulfills a particular"need or desire." Until this "need or desire" is fulfilled by other endeavors,experiences, or feelings the prejudice will reoccur. Required positive atti-tudinal adaptations, which are brought about by external pressures, but notincorporated on the part of the prejudiced affect the view of the individualor group targeted temporarily. This may suspend the prejudice from beingexercised as a discriminatory practice, but it does not permanently changethe prejudice. When the opportunity arises the prejudice may be mani-fested possibly with vengeance or as a backlash. Young-Bruehl identifiesthis phenomenon in "Societies [that] have, relatively speaking, prejudiceinducements and prejudice immunities."8 An important element of the

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prejudice is the expectation of the prejudiced that the targeted individualor group demonstrate deference to the prejudiced and acknowledgethe prejudice as a form of establishing the inequality of the target. Howthe "victims take in the prejudices directed at them, are injured, andrespond with confusion, acquiescence, or resistance...tells a great dealabout the prejudices."9

When the prejudice is manifested by word, or deed it becomes a dis-criminatory practice. If discrimination occurs it means that the prejudicehas gone beyond the attitudinal stage and become an active behaviorcarried out to the detriment of the affected party. The negative differentialtreatment of the individual as a result of the identification with a groupmembership is discrimination. Negative differential treatment entails acommitment to punish and deprive the particular individual and his/hergroup in particular ways. Institutions prone to discrimination because theyencourage authoritarianism and narcissism in the criminal justice systemare police, attorneys, courts, prison/jails/penitentiaries, and probation/parole. In the Anatomy of Prejudice the author likens the authoritarian andnarcissistic personalities' victims in that they are "identity-less scape-goats."10 The narcissistic personality commits "...discriminating acts ofprejudice... focus[es] on the realities, signs, or symbols of difference.They deny difference but in various ways. Most frequently, they conveythe message that the others are in no way comparable to them—and thusnot fit for doing what they do, living where they live, and so forth."11 It isthe individual or institution in the role of a narcissistic personality that ismost likely to resort to microaggressions when the opportunity arises andit is sanctioned. Tompkins et al., in "Subtle Discrimination in JuvenileJustice Decisionmaking: Social Scientific Perspectives and Explanations"(1996) quotes Dovidio and Gaetner as saying that "...the averse racistswill alternate between positive and negative behavior toward a minoritygroup member depending on whether a nonracial justification for a biasedresponse is available."12 The denial that systemic discrimination exits andthat it takes different shapes and forms depending upon the environmentthat fosters it is prevalent (Wilbanks, 1987).13

"Racism" and sexism have been historically documented in the UnitedStates as discriminatory practices that cut across class lines in Americansociety. However, most Americans believe themselves not to be prejudicedor discriminatory, and reject the notion that bias or stereotypes enter intodecision making that is contrary to the rules of fair play and democratic

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principles. Ochi (1985) points out that " . . . Even those of us who feel com-pletely free of prejudice in our decisions need to recognize the role that ourunconscious attitudes, values and biases play in our decision making."14

In the contacts between Latino(a)/Hispanics and the criminal justicesystem microaggressions have been described by commissions, researchstudies, and the media, but not labeled as such (Carter, 1983).15 The crimi-nal justice system is sensitive to claims of discriminatory practices becauseit is responsible for equality before the law (while the legislature/legislation is responsible for equality within the law). Most microaggres-sions are dismissed by the courts because they lack the legal requirementof "intent" and are not the "jure" infractions of constitutional and civilrights.

Microaggressions are generally justified by dominant cultural values,custom, tradition, religion, beliefs, mores, and socioeconomic factors(Ross and Vos, 1996).16 The prevailing theories of crime and criminalitydo not address microaggressions and are skeptical of labeling discrimina-tion or "racism" as systemic causes of disparate treatment in the criminaljustice system. Consensus, conflict, social strain, differential association,and culture conflict theories address the symptoms of crime and criminality.17

It is customary to relegate discrimination to either individual or contextualsituations.18 It is in contextual situations that rationalizations are easy tofind and discrimination fairly difficult to prove. These contextual situa-tions may be characterized as stops and frisk, arrests, disparate sentencing,death penalties, and others. Societies which rely on microaggressions as analternative to open, direct, and non-sanctioned behavior struggle with thecontradictions created by this option. Young-Bruehl inquires about thecharacteristics of the research on the subject:

"White studies of white racism did not start off with statementsabout the difficulties of studying a prejudice endemic to the writers'own group—a little family deformation."19

LABELS AS A MICROAGGRESSION

A common microaggression is to identify groups of people not by how theyidentify themselves, but by labels that are convenient to use in identifyingthem. Labeling and classification has been the subject of research forboth mainstream and "minority" scholars (Oboler, 1992; Rodriguez,

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Castro, Garcia, and Torres, 1991; Flores and Yudice, 1990; Giménez, 1989;Aguirre and Baker, 1988; Treviño, 1987).20 A homogenizing term such asHispanic, that is on the "surface neutral," serves multifaceted purposessome of the which appear legitimate, but is mainly " . . . confusing... amonggovernment agencies, scholars, the media, and the public at large."21

Disapproval of the use of the term Hispanic appears in the PoconoRegister article:

"Police officials are especially prone to stereotyping in their bulletinsdescribing wanted criminals. Thursday, for example, a short slenderwhite man robbed the Mellon Bank branch in Brodheadsville. Hewas described as a non-Hispanic male It's a lot easier to haul inthat handy work 'Hispanic', even in a contrary connotation, than it isto have described Thursday's robber as 'white, thin faced, sharp-featured and slender.' ....For that matter, what do police mean whenthey describe someone as 'Hispanic'—that the person is dark-skinned,dark-haired, dark-eyed?"22

Latino(as)/Hispanics have multiple group identities which allow indi-viduals to experience their individuality and retain their self worth. Oboler(1992) in her research addresses the multiplicity of "self and other" that isemployed by the individual Latino(a)/Hispanic in order to create an imageof self. This image of self as Latino(a)/Hispanic and the other as it reflectsgender, ethnicity, color, class, citizenship, culture, and "race" raises ques-tions of "identity-tension." This identity-tension is further aggravated bythe Latino(a) self as Hispanic other. She raises the self-identity and self-esteem conflicts in the USA that are inherent in the Hispanic category byher question: "Are they affirming the self, even as they redefine the other?"23

There is growing popularity for the use of the term "Latino(a)" because itaddresses the diversity of people from Latin America who reside in theUnited States without reference to color, language, culture, and country oforigin. The term Hispanic is rejected by informants in her study because ofits negative impact and the derogatory attributes:

"They invented the word Hispanic to discriminate against us ,Hispanic was a term that 'they (i.e., mainstream US society) usedas a synonym for 'pigs,' people who were 'dirty,' had 'badhabits',..."24

She states that "In failing to do justice to the variety of backgroundsand conditions of the individuals to whom it has been applied, the termHispanic can have the effect of denying their sense of self." In Latino

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Racial Identity: In the eye of the beholder? the authors note that "...theHispanic stereotype tends to be tan or brown. Perhaps the best confirma-tion of this tendency is the use by the police of the term 'Hispanic' in theirdescription of crime suspects so that we have instead of 'young, whitemale,...young Hispanic male'."25 Color and ethnic classifications are ofparamount interest in American society, since all groups must fit theUnited States "race" model. Stoddard (1924) points out in his work onRacial Realities in Europe that "race": ".. .is now seen to be the basic ele-ment in the destinies of peoples....the racial factor shall be duly recog-nized and its significance appreciated. Only thus can we attain the wider,clearer vision which our troubled times so urgently need."26 The criminaljustice system now identifies (victims, perpetrators, criminal justice practi-tioners, and the general public) by gender, color and "race" and frequentlyignored is culture, ethnicity, citizenship, country of origin, age, class, andplace of birth. An official notice appeared in the New York Daily Newsregarding a suspect:

"Most Wanted in BrooklynSunset Park Shooter

Male Hispanic, 20 to 25 years old, thin build mustache and silverloop in right eyebrow"27

The assumption that this description fits a "Hispanic" male and not anyother individual representing any other group of people. Ashley Montague(1942) in his seminal work Man's Most Dangerous Myth: The Fallacyof Race broke the links between genetics and culture, and placed "race"within its proper context as a social construction.28 Race as is popularlydefined in the United States is a mix of color, socio-economic, culturaland ethnic traits. A juror questionnaire in Kings County, New York Cityrequests the following:

"Information on race is sought solely to allow the court systemto monitor the juror selection...Race (optional) __white (non-Hispanic) black (non-Hispanic) Hispanic Asian NativeAmerican".

There is an assumption that there are no Latinos(as)/Hispanics of NativeAmerican origin or Asian backgrounds. There is another assumption thatLatino(a)/Hispanic whites or blacks are not White or Black or of otherbackgrounds. All humans on the face of planet earth have been scientifi-cally identified as "Homo Sapiens." Present theories of "race" and ethnic-ity that are contrary to all scientific knowledge continue to be propagated

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in all sectors of the intellectual communities in the USA. The UnitedStates as an advanced industrial society has technological and scientificdiscoveries at its disposal that contradict the nineteenth century "race"paradigms that continue to thrive to this day. In the nineteenth century,classification of humans as "Caucasian, Negroid, and Mongoloid"emerged when territorial expansionism, colonialism, slavery, and scientificinterests in grouping populations converged. The budding fields of studysuch as anthropology provided a required rationale for what Wolf (1982)now states is "the function of racial categories within industrial capitalism[as] exclusionary" (as cited in Walker, Spohn and DeLone, 1996).29

The popular definition of "race" and its application is more palatable thanthe scientific one (Homo Sapiens Sapiens), since its purpose is to justifydifferential treatment in relations of power and control. Caruso and Hesterof The Daily News described the composition of a jury based on the popu-lar use of "race" as follows: "The jurors of nine whites, one black, oneHispanic and one mixed-race member will deliberate weekdays from 8:30a.m. to 4:30 p.m." 30 Walker, Spohn, and DeLone in The Color of Justice:Race, Ethnicity, and Crime in America provide the following rationale forits present use:

"Classifying people by race and ethnicity, and keeping accuraterecords on what happens to whom, is not something done for theconvenience of academic researchers. It is a practice dictated by theneeds of enforcing our civil rights laws."31

Yet, Walker, Spohn and DeLone agree that "To be forced to bear a labelimposed by someone else is a badge of inferiority and powerlessness."32

The use of the terms minority, non-white, and people of color is also amicroaggression. A minority label is oftentimes interpreted as relegatingthe individual and group to a subservient status/caste and to be addressedas such reinforces this unequal treatment. The definitions of the term"minority" provided by international bodies seeking to protect the rights ofspecific populations have been inaccurately applied in the USA. Moreoverthese labels have been used by Latinos(as)/Hispanics and others in foster-ing inter-group solidarity and coalition building in their quest to mobilizeefforts for problem solving initiatives. The use of these labels serves tofurther entrench privilege and power and therefore defeats the purpose ofthe well intentioned organizations and individuals.

Mclntosh (1988) explores the "white race" label and the privilege anddominance it confers. She reveals how being identified with a "racial," or

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ethnic group label determines expectations of behavior, appearance, intel-ligence, looks, character, and social characteristics. Some examples of the"white race" privilege microaggressions are:

1. "May do well in a challenging situation without being called a credit toones race."

2. "May speak in public to a powerful group without putting ones raceon trial."

3. "Are never asked to speak for all the people of ones racial group."4. "Are not made acutely aware that body shape, bearing, looks, and

general demeanor is taken as a reflection of ones race."33

An experience of a "white race" privilege microaggression in the crimi-nal justice system that reflects the intersection between stereotype andpower:

May visit or enter any courtroom, precinct, and prison and not beconsidered a defendant, criminal, or prisoner. Instead there is a pre-sumption that the "white" individual may be a courtroom official(lawyer, judge, district attorney, a court clerk and others), a police offi-cial (undercover operative, a detective, a civilian employee) or a prisonofficial.

DISCRETIONARY STAGES AND MICROAGGRESSIONS

Microaggressions creep up most daringly at discretionary stages. Theseare stages in the criminal justice system where an opportunity arises forthe exercise of disparate practices in decision making that are sanctioned.Microaggressions in the criminal justice system when disclosed are fre-quently reasoned out by suggesting that the individuals affected asked forit, or are guilty of something, and are inferior because they do not fit the"norm." Latinos(as)/ as Hispanic "others" have encountered microaggres-sion experiences at discretionary stages which merit consideration. Forexample, the contacts with the police departments across the nation is gen-erally reported as lacking the required observance of rights, protocol, andconcerns for human dignity. Baker and Carter (1990) in their discussion ofdeceptive practices in police work argue that:

"Police administrators often deny that their departments practiceanything less than full enforcement of all laws rather than attempt to

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explain the basis for police discretionary decisions and selectiveenforcement."34

The authors describe the dangers of corruption and misconduct when policeofficers use their discretionary decision making power in ways which arejustified as "part of police officers working environment....they fulfill adefined police purpose."35 Some examples of these discretionary stages are:A police officer decides to stop or stop and frisk, make an arrest, or providea departmental public service. A typical stop and frisk:

Two Latinos(as)/Hispanics at a corner in a "minority" neighborhood areseen exchanging money. One of them in a business suit and the other isin a working class attire. Police officers who happen to drive by stopand order the two persons to line up against the wall with their handsup. They are both frisked and told to cooperate or they will be arrested.It happens that one of the two persons is owed money because he is apainter and has completed a job at the other's home.

The fact is that both Latinos(as)/Hispanics fit a profile as Latinos(as)/Hispanics in a "minority" neighborhood. A common microaggression isthat of concluding that a Latino(a)/Hispanic presence in their own neigh-borhood constitutes a criminal activity profile, since "good citizens" donot live in such neighborhoods. Would two non-Latino(a)/Hispanic"whites" in a non-"minority" neighborhood be stopped and frisked undersimilar circumstances? In "The New 'Profile' of Police Excess" a differentscenario is presented:

"Imagine that law enforcement officials finally heed the advice ofexperts who say its futile to deal with America's drug problem byfocusing on supply, that it's time for an all out assault on demandBecause stockbrokers, bankers, and venture capitalists are the likeli-est users, every white professional in the Financial District under theage of, say 50 fits that profile. So in the spirit of equal abuse underthe law, cops should stop and question every white person wearing asuit in the Wall Street area."36

Burnett explains that:"Police officers,... will frequently stop minority children and teenagersin poor, inner-city neighborhoods in situations for which they wouldnot stop such youngsters in more affluent areas or primarily whiteneighborhoods."37

Perez-Rivas tells the story of Police Officer Robert Maldonado whodecided to join the force in order to change it from within because as a

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youth "... he was roughed up on several occasions by 'white' officer's forno apparent reason other than the way I looked, I guess."38 Why are moreLatinos/as stopped and frisked, and arrested on "view"?

Research has explored the reasons for greater numbers of "minority"arrests on "view" and has concluded that police are less hesitant to arrestthem.39 Warrants require a greater measure of proof and greater effort inacquiring the evidence in order for them to be issued in apprehending a"non-minority," where there may be greater hesitancy to arrest. Hepburn(1976) is quoted by Petersilia as claiming that "...non-whites aremore likely than whites to be arrested under circumstances that will notconstitute sufficient grounds for prosecution."40 Stereotypes becomeoperative when profiles of individuals fit the characteristics of a group anda neighborhood in a poverty area which readily justifies arrest withoutwarrants or with warrants issued on affidavits with lower standards of pro-bable cause. Price (1997) indicates that "Profile stops aren't the only prob-lem. Zealous cops frequently escalate traffic infractions and trivialquality-of-life offenses into fishing expeditions that often produce min-nows at best."41 The US Civil Rights Commission (1982) concludesthat:

Our investigation reveals that Mexican-American citizens are subject tounduly harsh treatment by law enforcement officers, that, they are oftenarrested on insufficient grounds, receive physical and verbal abuse andpenalties which are disproportionately severe.42

Receiving a public service which is required by the departmental guide-lines and rules is often cause for complaints from the communities notbeing serviced. The Latino(a)/Hispanic perspective is not taken into con-sideration when (s)he is the crime victim or the alleged defendant who is avictim of discrimination. Hearings by U.S. commissions have found thatLatinos(as)/Hispanics find it difficult being acknowledged as victims of acrime. Studies indicate that police are called less often and that there isless confidence in the public service they will receive. A case which illus-trates this is that of Rafael Gonzalez and George Torres, both teenagers,attacked by a group of "white" youths who called them "dirty spiks." Theyreported the incident to the police who upon arrival found Rafael uncon-scious from the attack. When the attack occurred they were returning froma church meeting in Ozone Park and were told by police that they had nobusiness in that neighborhood. The Latino/Hispanic youth claimed thatpolice were insensitive to their plight by refusing to incorporate in their

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reports that they had been attacked by a "white" youth gang. The policeofficers insisted that the youth had been attacked by Afro-Americansor other Latinos/Hispanics. The youth responsible for the attack werereleased. The attack on the Latino/Hispanic youth occurred earlier on thesame evening and within two miles of the death of Michael Griffith atHoward Beach (Morin, 1989).43 The Mollen Commission (1992) has foundthat the most common forms of corruption were perjury and falsificationof documents among New York Police Department officers.

The inextricable relationship between the police department and the dis-trict attorney's office leaves little room for any checks and balances in favorof the public which is subject to microaggressions. The district attorneydecides to charge and the nature of the charges, to plea bargain and what tooffer; attorneys decide what jurors will serve and exercise their "voir dire."The microaggression is in handling all the Latino(a)/Hispanic defendants asthough they were guilty, to use them as representatives of the crime, thoughthe existing evidence or lack of it may point to the contrary. The prosecu-tor's decision making power at discretionary stages can be more sweepingthan the police or that of the judge, but often times is guided by the police.Nilsen (1994) indicates that "A further imbalance is created by the extra-ordinary discretion the prosecution has regarding who to arrest, whatto charge, and what evidence to present."44 Burneth in The Permeation ofRace: The Prosecutor's Role proposes that "...prosecutor's have an affir-mative duty to make sure that racial and national origin bias, as well asgender bias and prejudice, do not enter into their charging decisions."45

Walker et al. (1996) imply that in the charging and plea bargainingprocess, district attorneys behave as though the defendant were guilty andthe evidence of sufficient weight to sustain a conviction based on thecharges. The district attorney's office decides which cases will be prose-cuted and in which court, which offenses will be reduced from felony tomisdemeanor and vice versa, and which defendants will be released with-out further processing. The impact of overcharging may benefit the systemin a variety of ways: the clearing of the court calendar under the expecta-tion that the defendant will plead guilty and forgo a trial; the production ofa pool of felony offenders and others who go to jail or prison enhancingthe industries' budget; politically helps allay the public's fear about crimeand criminality; aids those who are seeking employment in the criminaljustice system; and it aids the police who have the need in their reports to"fluff it up."

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A recent case of "fluffing it up" in New York City was that of ManuelMorrillo:

Morrillo, age 31, served three years in prison before his release in 1994.Prosecutors dropped all charges against Monillo after conclusiveevidence proved him innocent of carrying a bag of cocaine. Morrillohad maintained his innocence and went to trial despite the prosecutor'sovercharging and efforts to make him plea bargain. Police OfficerMichael Walsh told Justice Leslie Crocker Snyder that he had commit-ted perjury when he testified that he had seen Morrillo carrying a bag ofcocaine.46

Burnett maintains that "The prosecutor's decision in determining whichcases to prosecute cannot be based on a defendant's race, sex, religion, orthe exercise of a statutory or constitutional right."47 When a defendantseeks a trial, a private attorney, and to exercise any rights under the law theprosecutor may not impede this exercise by overcharging.

The lack of adequate numbers of Latino(a)/Hispanic defense attorneysand prosecutors who are familiar with the needs of the clients and aresensitive to their perspectives is a system wide problem. Judge FrankTorres, Bronx Criminal Court, has written on the subject matter of therecruitment, training, and employment opportunities for Latino(a)/Hispanicattorneys. Prosecutors and defense counsel are generally "middle classprofessionals who have more in common with each other than with theirclients who are poor, uneducated, and from social and economic classesalien to them."48 Smith in 1919 addressed the very same predicament:

The administration of American justice is not impartial, the rich andpoor do not stand as equals before the law, the traditional methods ofproviding justice has operated to close doors of the courts to the poor,and has caused a gross denial of justice in all parts of the country tomillions of persons.49

The reliance on bias and prejudice is discussed by Nilsen (1994) as apotential for further "damage to both individual targets and to the largersociety."50 The use of "criterion for theories, for legal arguments, for scien-tific proofs,... for authoritative discourse,... though they confine whatwe have to say or implicate us in the patterns we claim to resist,... becausethey are repugnant and perpetuate racial, gender, or cultural stereo-types... " 5 1 is common. A defense attorney in seeking a better plea bar-gain may rely on a stereotype, a bias, or a prejudice to convince theprosecutor that his client though a Latino(a)/Hispanic from the "barrio" isworthy of a better deal.

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Another microaggression is the exclusionary practice that is based on thebelief that Latinos(as)/Hispanics cannot be professional in the performanceof their duties. It is presumed that the Latino(a)/Hispanic juror would be"inappropriately emphatic to the plight of the defendant in racially deter-mined ways"(Davis, 1989).52 The absence of jurors, the exclusion of jurors,and the public's image of Latino(a)/Hispanic as jurors has created inequitiesin the system. Voting is key to recruitment as a juror. Latino(a)/ Hispanicswho have had contacts with the criminal justice system are excluded fromvoting. Latino(a)/Hispanics who are eligible and do not vote are self-excluded, but those who are barred by mechanisms at polling places aredenied their rights. Latinos(as)/Hispanics who have served felony sentencesare excluded from voting. This population is disproportionately growingand the impact on the present and future political and economic stability ofLatino(a)/Hispanic communities is presently being studied. The right to betried by a jury of peers is an increasing impossibility for Latino(a)/Hispanics. In Dionisio Hernandez v. New York (1991) the petitioner claimedthat the district attorney used peremptory challenges to exclude Latino(a)/Hispanic jurors by reason of their ethnicity. Nine jurors had been impaneledout of the sixty-three questioned and the only four potential Latinos(as)/Hispanics had been excluded. The prosecutor offered the following expla-nation for the exclusion of the Latino(a)/ Hispanic jurors:

". . .I felt that from their answers they would be hard pressed toaccept what the interpreter said as the final thing on what the recordwould be, and I even had to ask the judge to question them on that,and their answers were—I thought they both, I indicated that theywould have trouble, although their final answer was they could do it.I just felt from the hesitancy in their answers and their lack ofeye contact that they could not be able to do it."53

The jurors in question may have been paying deference to the prosecutor'spower, status, privilege and authority by not making eye contact or sound-ing decisive in their answers. The Supreme Court found no inherent intentto discriminate and the reason offered by the prosecutor was "race" neu-tral. A juror in United States v. Perez (1981) was dismissed for questioningthe translation of the word "lavado" as a bar rather than as the juror under-stood it to mean a restroom. The juror explained that she understood someof the words that had been translated were idioms. The translator a non-Latino(a) defended the translation and was insulted when she understoodthe juror to have called her an "idiot" when the juror used the wordidiom.54 The juror was dismissed by the judge.

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Judicial discretion in sentencing has become public debate as a resultof the disproportionate numbers of "minorities" in detention. The judgedecides rulings and what motions to accept, to grant release on recog-nizance or remand to prison to await trial, sets bail, allows probation,determines the sentence, and approves sentencing alternatives. Tompkinset al. question "... whether some decisions stem from legitimate judicialdiscretion or whether such decisions reflect subtle racism... "55 Studieshave explored disparate sentencing and the impact that it has on the growingpool of felony offenders and second felony offenders. The New York StateDivision of Criminal Justice Service Report on Disparities in ProcessingFelony Arrests in New York State, 1990-92, concluded that "Racial disparitywas most pervasive in the decision whether or not to incarcerate probationeligible felons."56 The report disclosed that in the "minority" population4,000 probation eligibles were sent to jail and that 300 probation eligibleswere sent to prison. Why are Latinos(as)/Hispanics sentenced to jail andprison in proportionally greater numbers than "whites"? Mandatory sen-tencing for second felony non-violent offenders and overcrowding of pris-ons has been the subject of concern of advocates who perceive the presentpolicies as not serving the best interest of the public. Petersilia has foundthat in the three states studied "minorities" received longer minimum sen-tences than "whites" and that "minorities" were less likely to have the seri-ousness of the charges reduced. She states that: "...racial differencesappeared at two points, profiling release and sentencing."57 She also detectedthat "... 'white' defendants had a greater chance than minority defendantsof getting probation instead of jail. After a felony conviction, 'minority'defendants were somewhat more likely to get prison instead of jailsentences."58 A defendant who appears in court dressed out of the socialcode or addresses the judge in a language which reflects a foreign accent,lacks education or appears dismissive of the power of the court is likelyto be perceived as deviant. Why would judges regard "whites" as bettercandidates than Latino(a)/Hispanics for release and probation though bothpopulations shared the same qualifications?

Judges allegedly follow recommendations in pre-sentence reportswhich contain information gathered by the probation officers about thedefendant's profile. This information contains extra-legal substantive fac-tors which may have a discriminatory effect in the judges decision making.This use of certain psychosocial and economic information may place spe-cific populations who fit this profile whether they have committed a crimeor not at a disadvantage.

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The utilization of any extra-legal factors in deciding the fate of defen-dants without an in-depth knowledge about the defendant's background isa microaggression. Tompkins et al. believe that:

" ...the use of psychosocial, extra-legal substantive characteristics asa justification for dispositional outcomes allows decision makers andthe system as a whole to maintain an image of impartiality, makingsubtle discrimination difficult to detect."59

Discretionary decision-making in the courts is best summarized by FormerSupreme Court Justice William O. Douglass as cited in the U.S. CivilRights Commission Report (1970):

"Ninety percent of any decision is emotion The rational part ofus supplies the reason for supporting our predilections."60

The same extra-legal/substantive factors are applied to Latino(a)/Hispanic individuals employed in the criminal justice system as a meansof maintaining a ritual of social distance and avoidance by fellow publicservants. Latino(a)/Hispanic police are required to be more insensitive andoften times more brutal in the display of power against other Latino(a)/Hispanics in order to be considered as safe partners. Several cases aroundthe nation have created awareness about the Latino(a)/Hispanic difficultiesin the criminal justice system as employees. The Mexican American FBIagents led the tide in breaking the code of silence about the realitiesof working conditions for Latinos(as)/ Hispanics in the criminal justicesystem. The following five cases illustrate the microaggression:

The US Attorney in the Southern District of New York was asked tointervene by the Hispanic Society of the NYPD in the case of PoliceOfficer Antonio Echevestre who was severely assaulted by "white" fellowofficers. Officer Echevestre who was called during the beating a "f. gspic," was arrested and prosecuted while none of the officers involved inthe beating were charged.61

Verbal and physical encounters between Latino(a)/Hispanic officers andthe largely "white" police force are not uncommon. At the 114th Precinct inQueens, Officer William Acosta was dismissed because of "alleged errorsin rookie period reports of arrests and traffic violations." Acosta tells howhe was ignored by the Police Benevolent Association (PBA) when heappealed to them about the harassment campaign against him at thePrecinct. Acosta is depicted as a dedicated, serious, honest, capable, andintelligent person who speaks six languages. He alleges that he did not getto wear his fifth hat because they were all purposely damaged during hisshort stay at the Precinct. The message he received was that "Hispanics

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were not welcomed" at the 114th Precinct as officers.62 The questionraised by the Hispanic Society of the NYPD is: "Why is it difficult toaccept Latin(a)/ Hispanic officers as equals even when they excel in theirparticular expertise?"

Officer Paula W. Ruiz, an eight year veteran of the police department,was severely shaken when she experienced harassment from fellow lawenforcement personnel. This occurred after Officer Ruiz reported to herSupervisor on the scene that money was missing from the pockets of anunconscious man in whose apartment she and her partner had beencalled to. The money had disappeared after her partner had sent her to thepatrol car to retrieve his memo book. She was branded a "rat and whistleblower" and denied assistance from the Department's Equal EmploymentOpportunity Office when she asked that they investigate the harassment.Officer Ruiz has been passed over for promotion and is given assignmentsno one else wants.63

Another example of a veteran officer in the NYPD is Officer DaisyBoria who shattered the "blue wall of silence" by her testimony in theAnthony Baez case, since she refused to commit perjury on behalf ofOfficer Francis Livoti who was on trial for Baez's death. Her testimonycontradicted Officers William Fullam, Mario Erotokritou, and Sgt. WilliamMonahan when they testified that no one had touched Baez's neck. Theirtestimony contradicts the findings as to the cause of death by the city med-ical examiner, the emergency room doctor, and the forensic pathologistwho examined the body. Baez a Pentecostal Christian was killed in frontof his home while neighbors, family, and friends watched. Officer Lavotiwas acquitted by Judge Gerald Sheindlin in a non-jury trial. Officer Boriais shunned and ostracized by fellow officers who will not speak to her.64

The assignment of specific tasks and under specific conditions whichare relegated to Latino(a)/Hispanic within the criminal justice systemhas been presented at hearings by complainants. Officer Jerry Ortiz wasshot twice in the chest by dealers during a "buy and bust" operation. Ortiz'commanders had received a tip about the dealer's intent, but they decidedto proceed with the operation as scheduled. Fellow Latino(a)/Hispanicofficers claim that a cultural bias exists because they are passed over forpromotions and better job assignments while "... constantly being put indangerous undercover..." situations.65 Latino(a)/Hispanic personnel inthe criminal justice system have been the subject of disparate treatmentleading to claims of discrimination and harassment. According to Garcia

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in Latinos and Criminal Justice the Kolts Report noted that "... intolerantattitudes and conduct reflects management failures,...>>66 It is managementthat decides the differential treatment of Latino(a)/Hispanic employees inassignments and promotions.

The Microaggression experienced by the police officers and other crim-inal justice practitioners is that as Latino(as)/Hispanics they are not per-ceived by the system as different from the criminal element/profile theyare employed to engage. Perez-Rivas in his article quotes Zelman, anattorney who represents Hispanic police officers, as saying that "I don'tbelieve minority police officers are treated on par with the 'white' popula-tion."67 Ackerman (1996) explains the rationale employed by the powerholder to justify his/her actions to the self and to others: "When anybodyquestions the legitimacy of another's power, the power holder mustrespond not by suppressing the questioner but by giving a reason thatexplains why s/he is more entitled to the resource than the questioner is."68

The power holder usually portrays the aggrieved who is the questioner asparanoid, irrational, unduly sensitive, and whose behavior is that of a non-team player. Latino(a)/Hispanics face microaggressions which deny thema sense of power and belonging even when they consider themselves mem-bers of the criminal justice system they seek to serve. The majority sharethe same sense of powerlessness and exclusion that prisoners in detentionfacilities experience.

The United States is the country with the highest incarceration ratein the world with an astounding budget of over 28 billion dollars a yearallocated to detention facilities. This budget excludes funds for all othercriminal justice system wide allocations. Prisoners and their families arethe most marginal in the system. The microaggressions faced by Latino(a)/Hispanic prisoners raises questions about the mission or goal of rehabilita-tion and habilitation in jails, prisons and penitentiaries. Prison officialsdecide level of security, prison site, programs and parole boards decide fit-ness for parole. In mid year 1995, the Latino(a)/Hispanic jail population inthe United States was 14.7 (with 97.1 percent of the data on Latino(a)/Hispanics reported) out of a total jail population for all groups of 507,044.The end of year 1995 prison population of Latino(a)/Hispanics was 23.7percent (with 75.1 percent of the data on Latino(a)/Hispanics reported) outof a total prison population of l,078,357.53.69 The Latino(a)/Hispanicpopulation in detention is growing disproportionately in comparison tothe general Latino(a)/Hispanic population. Diaz-Cotto (1996) discusses

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the limitations imposed on Latino/a prisoners at several facilities and therisks incurred in the defense of their rights:

"There were also times when penal administrators targeted Latina/oprisoners for further differential treatment. For example, in bothmale and female facilities Latinas/os were penalized for speaking inSpanish,...."70

Contrary to public opinion most Latino(a)/Hispanic prisoners are housedin the most deplorable conditions. They are less likely than other prisonersto participate in programs, receive parole or have medical needs attendedto. Latino(a)/Hispanic prisoners of conscience tend to outnumber similarpopulations in other groups. Basic necessities such as soap, blankets,toothpaste, aspirin, and required prescriptions are oftentimes non-existent.The AIDS epidemic finds Latino(a)/Hispanic prisoners receiving less atten-tion and in many cases no medical care. Claims by hundreds of prisonersthat they are innocent of the charges that they are serving time for are dis-missed as ploys to get attention from the public. Most prisoners are sent toremote areas where access by relatives to the prisons are limited and theyare less likely than other prisoners to be sent to the premier or "countryclub" settings. Security levels are determined by the Bureau of Prisons,Superintendents, and other administrative personnel who can limit access tobetter prisons and mobility within prisons. The Latino(a)/Hispanic needsassessment programs have virtually been eliminated from most institutionsin New York State and this is projected to hinder further prisoner rehabilita-tion and habilitation. It is alleged by prisoners, advocates, and families thatLatino(a)/ Hispanic prisoners are generally treated as an invisible popula-tion when it comes to services, but not when it's time for punishment. Themicroaggressions experienced by Latino(a)/Hispanics in detention facilitiesis magnified when compared with what is experienced by those who are notdetained. In the documentary film "From the Ghetto" Felipe Lucianoexclaims that he "had never experienced racism, stereotyping and discrimi-nation as harshly as when he went to prison."71 Prisons, jails and peniten-tiaries reflect as microcosms the failures, limitations and disarray of thelarger society.

The most egregious microaggression in the criminal justice systemis that Latino(a)/Hispanic jurors, criminal justice practitioners, lawyers,judges, police officers, and prisoners are expected to participate intheir own victimization and that of others in their color, ethnic, or "racial"group. This microaggression seeks to reinforce a negative self-worth,

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establishes domination and control over the target group and the individualwhile maintaining privilege and power of the non-Latino(a)/ Hispanic.

Further research of microaggressions and their relevance in the study ofsystemic negative differential treatment in the criminal justice system thatis based on discrimination, prejudice, bias, and stereotypes is needed. Thestudy of microaggressions and the intersections of color, ethnicity or"race," privilege, and power is helpful in the pursuit of discoveringwhether discrimination and prejudice is a cause. Analyzing the causes ofthe inequalities and inequities in the criminal justice system requires atransdisciplinary approach.

Notes

1. M. Rowe. "Barriers to Equality: The Power to Subtle Discrimination to MaintainUnequal Opportunity," pp. 297-298.

2. Ibid., p. 297.3. P. Davis, "Law as Microaggression," 98 The Yale L.J. 1559 (1989); Ibid., 2974. A.L. Tompkins et al, "Subtle Discrimination in Juvenile Justice Decisionmaking: Social

Scientific Perspectives and Explanations," 29 Creighton L. Rev. 1619 (1996), 1641.5. D.L. Carter. "Hispanic Perceptions of Police Performance: An Empirical Assessment,"

Journal of Criminal Justice 13 (1985): 487-500; J. Skolnick, Justice Without Trial:Law Enforcement in a Democratic Society (3rd ed) (New York: Macmillan, 1994);P.A. Geoffrey and R.G. Dunham, Policing Multi-Ethnic Neighborhoods (New York:Greenwood, 1988); J. Petersilia, Racial Disparities in the Criminal Justice System(Santa Monica, CA:Rand, 1983), pp. 21-26; Gunnar Myrdal, An American Dilemma:The Negro Problem and Modem Democracy (New York: Harper, 1944), pp. 535-546;S. Walker, C. Spohn and M.DeLone, The Color of Justice: Race, Ethnicity, and Crime inAmerica (Belmont: Wads worth, 1996); S. Walker, Taming the System: The Control ofDiscretion in Criminal Justice, 1950-1990 (New York: Oxford University Press, 1993).

6. H. Arendt, The Origins of Totalitarianism (New York: Harcourt & Brace, 1951);R.A. Apostle, et al., The Anatomy of Racial Attitudes (Berkeley: University of CaliforniaPress, 1983); M.N. Bierly, "Prejudice Toward Contemporary Outgroups as a GeneralizedAttitude," Journal of Applied Psychology 15 (1985): 189-199. These authors addressprejudice from an individual response and not a collective endeavor which means thatindividuals may be prejudiced, but not societies. An attempt is made to locate the "foci"of prejudice in the collective through the individual.

7. A.L. Tompkins, "Subtle Discrimination " ; M. Rowe, "Barriers to Equality:...;J. Banks, "The Culture Wars, Race, and Education," National Forum, Vol. LXXIII, No. 4(Fall 1993); J.F. Dovidio and S.L. Gaertner, Prejudice, Discrimination and Racism(Orlando, FLA: Academic Press, 1986); J. Vazques and C. Bahn, "The Police as Viewedby New York City Puerto Ricans in Puerto Rican Perspectives from the Community,Chap. 13 (Greenwood Press, 1979), pp. 104-118.

8. E. Young-Bruehl, The Anatomy of Prejudices (Cambridge, Mass: Harvard UniversityPress, 1996), p. 22.

9. Ibid., p. 457.10. Ibid., p. 180.11. Ibid., p. 236.12. A.L. Tompkins, et al., "Subtle Discrimination....". Cites Dovidio and Gaertner at

p. 1638.

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13. W. Wîlbanks, The Myth of a Racist Criminal Justice System (Monterey, CA: Brooks/Cole, 1987). Wilbanks agrees there is discrimination and prejudice, but it does notcharacterize the system. It is neither systematic nor systemic in nature.

14. R.M. Ochi, Race Discrimination in Criminal Sentencing, 159 PLI/Crim 31(Winter,1985), p. 32.

15. D.L. Carter, "Hispanic Interaction with the Criminal Justice System in Texas: Experiences,Attitudes, and Perceptions," Journal of Criminal Justice 11 (1983): 213-227.

16. L.R. Ross and G.A. DeVos (eds.), Ethnic Identity: Creation, Conflict, and Accommodation(London: Altamira Press, 1996).

17. Conflict theory explains crime based on social, economic, and political inequality andlack of power, culture conflict theory addresses the lack of shared societal values, norms,and expectations; social disorganization theory sustains that institutions such as thefamily are undermined by lack of resources and in turn they cannot socialize the individ-ual to meet society's expectations; differential association theory holds that criminalbehavior is learned and greater contact with criminals, crime, and lack of role modelsproduces criminals; social strain theory analyses the gap in achieving approved goals insociety and the means available to the individual; and consensus theory postulates thatcriminal behavior may be explained by individual acts of deviance and deformity. SeeWalker et al., The Color of Justice....

18. Individual discrimination is the act of a single entity or entities, but it is not a system-wide pattern. Discrimination in a contextual situation arises out of the particularexchange between or among individuals and it is not system-wide.

19. E. Young-Bruehl, The Anatomy of Prejudice, p. 86.20. S. Oboler, "The Politics of Labeling: Latino/a Cultural Identities of Self and Others,"

Latin American Perspectives. 19 (Fall 1992); C. Rodriguez, C. Castro, A. Garcia,O. Torres, "Latino Racial Identity: In the Eye of the Beholder? Latino Studies Journal 2(1991): 33-48; M. E. Gimenez, "Latino/Hispanic Who Needs a Name? The Case Againsta Standardized Terminology," International Journal of Health Services 19 (1989):557-571; J. Flores and G. Judice, "Living Borders/Buscando America: Languages ofLatino Self-Formation," Social Text 8 (1990): 57-84; A. Aguirre, Jr. and D. Baker,"A Descriptive Profile of the Hispanic Penal Population: Conceptual and ReliabilityLimitations in Public Use Data," The Justice Professional. 3 (Fall 1988); F.M. Trevino,"Standardized Terminology for Standardized Populations," American Journal of PublicHealth 77 (1987): 69-72. The authors discuss the theoretical and practical inconsisten-cies in one "racial" label or image for Latinos/as.

21. S. Oboler, The Politics of Labeling:..., p. 22.22. What does Hispanic Mean Anyway? Pocono Record (1996, October 5), p. A-6.23. S. Oboler, "The Politics of Labeling:.... p. 19.24. Ibid., p. 23.25. C. Rodriguez et al., Latino Racial Identity:... p. 19.26. L. Stoddard, Racial Realities in Europe (New York: Charles Scribner's Sons, 1924),

p. Foreword.27. New York Daily News (1997, January 7), p. KSI 4.28. A. Montague, Man's Most Dangerous Myth: The Fallacy of Race (New York: Collier

Books, 1942).29. E. R. Wolf, Europe and the People Without History (Berkeley: University of California

Press, 1982), pp. 380-381 cited in Walker et al., The Color of Justice:. . . .p . 11.30. Caruso and Hester, "O.J. Jury takes Close Look," The Daily News (1997, January 30), p. 3.31. Ibid., p. 8.32. Ibid., p. 12.33. P. Mc Intosh, "White Privilege and Male Privilege: A Personal Account of Coming to

See Correspondences Through Work in Women's Studies," Working Paper No. 189,Wellesley College, Center for Research on Women (1988), pp. 6-11.

34. T. Baker and D. Carter, "Fluffing up the Evidence and Covering Your Ass: SomeConceptual Notes on Police Lying," Deviant Behavior II (1190): pp. 61-73, 65.

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35. Ibid., p. 62.36. H.B. Price, "The new 'profile' of police excess" New York Daily News (1997, October 2): 43.37. A.L. Burnett Sr., Race and National Origin as Influential Factors in Juvenile Detention,

3 d. C.L. Rev. 355. The creation of profiles that identify particular individuals in a partic-ular neighborhood as deviant, as criminal elements, and as threatening.

38. A.L. Burnett Sr., p. 356.39. M. Perez-Rivas, "Blue: An Equal Opportunity Color?" New York Newsday (1993,

July 13): 8,10.40. J. Peter, Racial Disparities in the Criminal Justice System, p. 43.41. H.B. Price, "The new 'profile' of police excess" New York Daily News (1997, October 2): 43.42. National Minority Council on Criminal Justice. The Inequality of Justice: A Report on

Crime and the Administration of Justice in the Minority Community (Chapter VI: TheInequality of Justice: The Courts), 1982: 253-289, 254.

43. J.L. Morin, "A Community Under Siege: Racial Violence and Police Brutality againstLatinos," Journal of Center for Puerto Rican Studies (Spring 1989): 95-101.

44. E.S. Nilsen, The Criminal Defense Lawyer's Reliance on Bias and Prejudice, 8 Geo.J. Legal Ethics 1 (Fall 1994).

45. C. Burneth, The Permeation of Race: Prosecutor's Role. 31 Am. Crim. L. Rev. 1153(1994): 1169.

46. D. Kocieniewski, "Officer Admits to Lie that Put Man in Jail," New York Newsday (1994,June 14): A29.

47. A.L. Burnett Sr., p. 1168.48. National Minority Council on Criminal Justice, p. 272.49. R.H. Justice and the Poor (Merrymount Press, 1919).50. E.S. Nilsen, The Criminal Defense Lawyer's Reliance on Bias and Prejudice, p. 9.51. Ibid., pp. 2, 4.52. P. Davis, p. 1570.53. 500 U.S. 352, Ill S. Ct. 1859, 1864.54. 658 F. 2d 654 (CA 9 1981)55. Tompkins et al., p. 1620.56. Summary Report (May 1996), p. 1.57. Ibid., p. 89.58. J. Petersilia, p. 90.59. A.L. Tompkins et al., p. 1649.60. U.S. Civil Rights Commission Report (1970), p. 280.61. Hispanic Society of NYPD (Press Release, March 16, 1992), The Hispanic Society

Denounces the Arrest and Prosecution of Police Officer Antonio Echevestre: A FederalInvestigation of the Incident is Requested.

62. The Case of William Acosta. (1991, December 4) El Diario/La Prensa 17.63. M. English. (1994, June 14). Minority Cops Tell of Bias. New York Newsday, p. A29.64. J. Dwyer (1996, October 8). Judge and Officer do a Job on Justice. New York Daily News, 4.65. M. Perez-Rivas, p. 8.66. R. Garcia, Latinos in Criminal Justice, 14 Chicano-Latino L. Rev. 6 (1994): 10.67. M. Perez-Rivas, p. 10.68. B.A. Ackerman, "Justice and Equality: The Liberal State." In Social Justice in a Diverse

Society, eds. R. Manning and R. Trujillo. London: Mayfield Publishing Co., 1996.69. Bureau of Justice Statistics (1996). Prison and Jail Inmates, 1995. U.S. Department of

Justice, p. 2,10,11.70. J. Diaz-Cotto, Gender, Ethnicity, and the State: Latina and Latino Prison Politics (New

York: State University of New York Press), p. 405.71. From the Ghetto (1982). New York State Department of Education Series, Reflections.

Mr. Felipe Luciano is a radio and television commentator. A leader and member of theYoung Lords Party in New York city.

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