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Is the justice system racist?

This week's Plain Dealer dog-bites-man story was that... wait for it... black defendants fare worse in the criminal justice system than white ones.  From the 18,000 drug convictions handed down in the Cuyahoga County Common Pleas Court in 2005, 2006, and 2007, the Pee Dee had come up with 364 cases in 2007 that were roughly similar:  the defendant was charged with simple drug possession, hadn't been indicted before, and pled guilty.  In two stories -- here and here -- it published its findings:  low-level drug abusers who were white tended to have their charges reduced to misdemeanors, or to be placed in diversion programs which resulted in the charges being dismissed, at substantially higher rates than black defendants.

The argument that the criminal justice system is racist is hardly a new one.  Just Monday, the Supreme Court denied certiorari in a Georgia deathp penalty case, provoking an opinion by Justice Stevens that the state supreme court had not adequately considered the racial aspect of the case (black defendant, white victim), and an opinion by Justice Thomas that it had.  Research is all over the place, too.  And Justice for Some concluded that black juvenile delinquents were punished more harshly than whites, and a paper by the American Sociological Association concluded as much for the adult justice system.  On the other hand, as I pointed out last July, other research has come to a contrary conclusion, suggesting that any disproportionate effect in prosecution or sentencing of blacks is due to the fact that they represent a disproportionate share of the offenders.

There's certainly some merit to this latter point, and the argument that the system is explicitly racist is a tough one to make.  The day after the first article came out, I went up to a pretrial where a young prosecutor and a bailiff were engaged in animated discussion about the piece, each reassuring the other that race really didn't play a part in any of this.  The prosecutor noted that when he'd taken a file down to be marked for a plea, his supervisor had never once asked him the race of the defendant.  I believe that.  I have never, not once, encountered a prosecutor who made even an isolated comment that I could interpret as being the least bit racist.

And one of the problems in doing research on this is that there are so many variables to take into account:  the sufficiency of the evidence, possible problems with the search, to say nothing of the defendant's particular criminal history.  One of the overarching factories is not race, but economics:  that a white defendant (who also happened to be a lawyer) might wind up with a better result, courtesy of retained counsel, than a black defendant with an appointed lawyer is not surprising.  The guy who said money can't buy happiness never sat in a courtroom. 

Still, the Pee Dee articles were well-researched, and I came away from them with an abiding confidence in the two cardinal principles I've gleaned from practicing criminal law for a third of a century:  it never hurts to be white, and it never helps to be black.  Yes, there are exceptions, but like most exceptions they prove the rule.

The Pee Dee article also noted that there are two drug treatment alternatives for defendants charged with simple drug abuse:  treatment in lieu of conviction, and the Early Intervention Program.  I got to talking with one of the judges about the article, and she made a special point of mentioning that although the prosecutors like to think that they run the second program, possessing the discretion as to who enters it and who doesn't.  That's not true; you can make application to either through the judge.  And keep in mind that, as I pointed out earlier this year, there's some case law out there which holds that even where a defendant is not eligible for treatment in lieu on all the charges he faces, he can apply for it on those for which he is.

Actually, what was more unsettling to me than the racial implications the articles posed was the sheer magnitude of the numbers:  an average of 6,000 cases a year.  About two hours from now, I'm going to be going over to court to try one:  the cops busted my guy and found a pipe containing drug residue.  He's got a record for doing that, and he doesn't want to go back to prison, so I have to try the case.  It's hard to see how that's doing anybody any good.


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