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The racist criminal justice system (?)

If I had to distill 37 years of practicing criminal law into two observations, they would be:  for a defendant, it doesn't hurt to be white, and it doesn't help to be black.

Larry Elder would beg to disagree.

Race has bedeviled this country since its founding.  The debate as to whether and to what extent racism still infects the criminal justice system is a frequent topic, because of the nature of the institution.  Sure, everybody should have a fair chance at a job, regardless of their race.  Then again, life isn't fair:  everybody knows of someone who got hired because of their connections rather than their merit, and so the idea of someone getting hired because of their skin color, or lack thereof, isn't that disturbing.  But the criminal justice system is supposed to be fair:  the idea that one person wouldn't receive a fair trial, or would be more severely punished, because of his race isn't simply disturbing, it's outrageous.  Time and again, we hit a flash point that triggers the debate:  O.J. Simpson, the death penalty, the crack/powder cocaine disparity, and most recently the Trayvon Martin/George Zimmerman case.

On Sunday, in a column for a right-wing web site, Elder wrote of the "Five Myths of the 'Racist' Criminal Justice System."  The piece is typical of polemical writing, especially of the "myth" genre, where the author seeks to show that conventional wisdom is wrong by assembling certain obscure statistics to demonstrate that view.  And, like the drunk with the lamppost, Elder's statistics are intended for support, not illumination.

Heather MacDonald does a much more thorough job of it in this 2008 piece.  (In fact, it's apparent that Elder lifted a good bit of his article from here.)  Her argument is simple:  any disparity in arrest, conviction, or imprisonment of blacks is due to the fact that they commit more crimes.  And unlike Elder, she brings a much larger arsenal to the battle.  Study after study has shown that blacks aren't overarrested:  rates of arrest parallel the victim's descriptions of the perpetrators -- in other words, if 50% of the people arrested for robbery are black, it's because 50% of robbery victims have described their assailants as black -- and there's no reason to believe that vicitms are falsely describing the race of the perpetrators.  Some studies have shown that blacks actually receive disproportionately more lenient punishment, and others have shown that they are less likely to be prosecuted and more likely to be acquitted. 

MacDonald even does a decent job wounding, if not slaying, the dragon most commonly advanced by those arguing that the criminal justice is inherently racist:  the drug war.  Exhibit A in this meme is the crack/cocaine powder disparity, which was racist in design and in execution.  MacDonald points out that the impetus for the distinction between powder and crack came from the differences in both use and marketing of the drug:  instead of discreet phone calls and transactions of powder cocaine, crack was marketed on the streets by people with guns intent upon marking out their territory.  Indeed, black mayors and congressmen were the ones who pushed for these laws after viewing the carnage that crack had caused in their cities and districts (the law creating the disparity was backed by the Congressional Black Caucus).  And MacDonald has a trump card.  The Federal methamphetamine-trafficking penalties are identical to those for crack:  five grams gets you five years.  In 2006, 5,391 defendants were sentenced for meth violations, slightly less than the 5,619 sentenced for crack.  In the latter group, 81% of the defendant were black; among meth defendants, though, only 2% were black, while 54% were white.  Yet nobody would claim that the meth laws are intended to discriminate against whites.

That's not to suggest that MacDonald has an answer to everything.  MacDonald's arguments about the drug war doesn't address the fact that while blacks constitute 13% of drug users -- about the same as their percentage of the population -- they are 37% of those arrested on drug charges, 55% of those convicted, and 74% of those sentenced to prison.  And completely ignored is evidence of racial profiling by police in traffic enforcement and stop and frisks:  studies have repeatedly shown that blacks are stopped far more frequently than whites, although the "hit rates" -- the times when a stop uncovers a crime -- is actually higher for whites in many instances.

I think MacDonald's argument and racial profiling provide a clue as to what the "racism" really is.  A few years back, I had a case involving an 18-year-old black kid charged with possession of drugs in a car he'd been riding in.  I got the kid acquitted in a bench trial, but the judge she told me that she and the court reporter had talked about how tough-looking my guy was, and wondered how many juvenile delinquency adjudications he'd had.  Truth was, the kid had never been in trouble before.  He came to court every time, with his mother, and every time he was wearing black pants, a white shirt, and a tie. 

This was from a liberal judge, mind you.  It's not that she was biased, she was conditioned.  It's a short step from knowing that blacks commit crimes in disproportionate numbers to believing that the particular black person standing in front of you is more likely to be a criminal than he would be if he were white.  This is intertwined with class.  The suburban white kid who was selling cocaine to his friends made a mistake in judgment and, with the help of his family and community, can be restored to a productive role in society.  The black kid from the projects who was selling crack on the street corner comes from a bad home with no father and a mother who's on welfare, and all his friends are no good, so he's unsalvageable.

And sadly, there's some truth to this, too.  Another story from a few years back:  I had a young black kid who'd gotten popped for selling marijuana, and I got him into the drug program where all he had to do was a year's worth of probation, and if he stayed out of trouble, the charges would be dropped.  He was a decent kid, a few things in juvy, nothing serious, and he was smart.  I tried to explain to him what a big chance he'd been given, how very, very important it was to be able to go in for a job interview and put down "none" where it asked about your prior convictions.  And then I walked him to the building next door, and along the way he ran into a number of homies from the neighborhood, all coming and going on their own cases, and I realized the kid didn't have a chance.  Sure enough, he flunked out of the program six months later, was placed on real probation, and when he violated that six months later, off to prison he went.

Now, you can make arguments about this all day long:  that this is indeed a vestige of racism, or that blacks bear the responsibility for this, or somewhere in between.  I'm not sure.  I've heard policemen and lawyers and even judges make openly racist remarks, but it's been a while, and there were fairly few of them.  I think there's a bias, but it's largely a subconscious one.

The only thing I'm reasonably sure of is that if you wind up as a defendant in the criminal justice system, it doesn't hurt to be white, and it doesn't help to be black.

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