So tomorrow I am going to be talking about a story that’s been in the news for a while and has only recently begun to pick up steam. It’s a heavy story with a lot of moving parts, and there’s absolutely no way that I can cover it comprehensively. What I’m hoping to do with today’s posts is drop a couple of anchors for ideas in your brains so that I can breeze through some of the concepts tomorrow (or at least link to these posts).
One of the realities that we’ve explored in various guises here at this blog is the idea that the justice system is often racist. Not racist in an intentional, conscious bigotry sense (although that may occasionally be the case – more on that later) – that would be absurd: a system cannot have intention to the same extent that a person can. But as we’ve been discussing, the intent of racist actions is more or less immaterial – we judge racism by outcomes. If an institution discriminates against someone intentionally or passively, the only difference that makes is in how we try to fix the problem – it makes little difference to the victim.
Whereas the legal system is supposed to see all people as equal, it is built upon a foundation that assumes that all people are treated equally going into the system, and that the human beings that make up the system are impartial. However, we can quickly see that is not the case:
A new academic study of 58,000 federal criminal cases has found significant disparities in sentencing for blacks and whites arrested for the same crimes. The research led to the conclusion that African-Americans’ jail time was almost 60% longer than white sentences.
According to M. Marit Rehavi of the University of British Columbia and Sonja B. Starr, who teaches criminal law at the University of Michigan Law School, the racial disparities can be explained “in a single prosecutorial decision: whether to file a charge carrying a mandatory minimum sentence….Black men were on average more than twice as likely to face a mandatory minimum charge as white men were, holding arrest offense as well as age and location constant.” Prosecutors are about twice as likely to impose mandatory minimums on black defendants as on white defendants.
It will come as no shock whatsoever to regular readers of this blog that I view mandatory minimums as racist. By removing a jurist’s ability to take racial disparities into account, mandatory minimums stack the deck solidly against those who are more likely to be arrested – often this means young black men. However, it seems that there is an additional way in which systemic racism can manifest – when the decision is made to file charges that carry a mandatory minimum sentence. In the United States, it seems that simply being black carries not only the added risk of being stopped by police, but also the likelihood of being imprisoned 60% longer than if one had the good sense to be white.
Now it is certainly conceivable that what we are seeing is a wash of racist prosecutors who are intentionally sending black kids to jail for a longer period of time, but somehow I doubt it. First of all, for reasons I will discuss this afternoon (and have discussed before), a given behaviour is often perceived very differently depending on the race of the actor. Prosecutors may simply be more likely to see the identical criminal activity in a very different light if the defendant is black, completely without hir knowledge. Second though, this may be a product of how we feel about the accused. Just like the differences we saw in the bankruptcy story where white borrowers were seen as more trustworthy, this may be the result of simply wanting to give white defendants a ‘second chance’, of which black defendants are seen as being less worthy.
And understanding this helps paint a larger picture:
The hate crimes unit at the Toronto Police Service is no longer investigating racist hate mail targeting a black guard at the Don Jail. CBC News reported Monday that the guard, Leroy Cox, has asked Ontario’s Human Rights Tribunal for an investigation into racist graffiti and hate mail targeting black officers. The complaint suggests the racism originates with other staff at the Toronto Jail, commonly known as the Don Jail.
Cox had believed that probe was still open, but learned on Monday that his case had been transferred back to officers at 55 Division, the local police detachment near the jail. Falconer said it shows police are not taking the case seriously.
“It takes a certain level of expertise to understand and carry out these investigations,” Falconer said. “What a profound disappointment to find out, without any notice, that this has basically slipped its way back to the local divisions. Obviously one has to question how seriously they’re taking it if they never even bothered to inform Mr. Cox.”
If we were naive enough to believe that law enforcement and the justice system did not have a bias against black people, then there are any number of potential explanations for a story like this. Maybe the hate crimes unit legitimately found no evidence to suggest that letters threatening violence against black correctional officers warranted their investigation. Maybe the local police department was in fact the most qualified to investigate. Perhaps Mr. Cox exaggerated the stories. All of these are possible.
However, knowing what we know, it is hard for us to look at this series of events and fail to reach the conclusion that racism payed a role in the dismissal of this issue. Again, it may not have been the result of active bigotry from the hate crimes unit (a hard thing to imagine), but again the intention is meaningless.
So the ‘take home’ point here is that we cannot ignore the fact that racism plays a large role in the functioning of the justice system, and often fails to protect those in greatest need of its help. Keep that in mind as we press on.
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I’ve mentioned it before, but “You Must Be A Basketball Player” by Anthony Stewart, a professor at Dalhousie, is an excellent take on this kind of institutionalized bias/racism. He weaves his own experiences of being a tall, black man in academia (hence the title) with some solid ideas about what exactly is happening and why…
I’ve often wondered how different sentencing patterns would be if the prosecutors were not allowed to see the defendant (or hir name, race, or other vital stats) before making a sentencing recommendation. What if prosecutors were simply handed a write-up of the offense with a random number on it?
I’m thinking trials should be conducted entirely with Second Life avatars.
Or the scramblesuits from A Scanner Darkly.
I also have severe reservations about the establishment of mandatory minimum penalties in law, even beyond the racial biases they create in practice. They’re often set far too high (strict), for one. This is mostly due to the “tough on crime” attitude politicians take in a completely cynical manner to acquire more votes, often from idiots who don’t believe they will ever be charged with a serious crime. (Because, you see, they’re “different” from “those” people. Othering, to put it simply.)
Another huge problem with fixed minimums is that it essentially eliminates the use of context in sentencing. For any particular crime, there are many factual details that would and should be relevant to deciding the sentence. Simpletons aside, not all crime is committed equal. Setting a particular threshold that must be met in every case is pretty much ridiculous on its face, from this perspective.
Some might argue that the most severe crimes like rape, torture, and murder need fixed minimums in order to guarantee that a judge or jury doesn’t try to game the system somehow. However, this seems to be a silly objection in the general case, because if either judge or jury is really aiming for an unfair result they will find a way to acquire it. The jury, for instance, can simply go hung or render a not guilty verdict, dodging the whole mandatory minimum issue. For judges, there must be all kinds of ways in which evidence and other key aspects of the case could be manipulated toward a particular result. It’s silly to institute set standards in the law that will be bypassed whenever the real power holders feel like it.
Beyond all of this, I would say that many of the laws themselves are discriminatory. Drug laws are a good example where enforcement is very slanted against poor and minority communities. There doesn’t appear to be any legitimate purpose to these laws other than giving the power of arbitrary control to police and other executive forces.
Moreover, the more useless or destructive laws that are on the books, the greater the amount of time the police and prosecution end up wasting pursuing social control policies instead of meaningful crimes. There’s a kind of multiplier effect here that shouldn’t be underestimated.
One other way to look at it is that when there are enough laws that everyone is a criminal, law enforcement becomes necessarily arbitrary. Since it is physically and practically impossible to arrest everyone for their crimes, the power brokers have to make decisions along lines which slant with the political and social wind. This nearly always results in rough and unequal consequences for minorities, the poor, and the otherwise powerless.