One of the vexing problems in trying to compare sentences imposed on defendants by race is that it’s essentially impossible to do an apples to apples comparison. No two people are the same. No two crimes are the same. But they could be sufficiently similar, if only there was a way to quantify those similarities to make a valid comparison.
The Sarasota Herald Tribune did some heavy lifting in an effort to accomplish this feat.
Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found.
They offer blacks fewer chances to avoid jail or scrub away felonies.
They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.
Florida lawmakers have struggled for 30 years to create a more equitable system.
Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth.
But the point system has not stopped discrimination.
At Fault Lines, Judge Mark Bennett has written at length about implicit bias, and makes important points about “in group” prejudice, as has Ken White, the ability to dredge up some empathy based on shared experience and the ability to relate. Why the phenomenon is being characterized as “implicit” is unclear, as it’s still bias. The name is trendy, which somehow makes it fashionable to notice, but it relieves those who engage in it from the burden of being just “run of the mill” prejudiced.
The bias of which Judge Bennett wrote was the ability of a judge to “relate” to a defendant, and thus find his circumstances more worthy of empathy, more understandable. When the sentence to be imposed is meted out by a judge, every decent criminal defense lawyer tries desperately to humanize the person before the court, to make him more than a “conspiracy to sell narcotics” and turn him into a human being, with a family, hardships, dreams that were killed by a cruel world that might have put him in law school, maybe on the bench some day, and instead left him standing next to his lawyer in the well.
Tell this story enough and judges get tired of hearing it. Worse still, they grow so tough around the edges that they have snippy responses, “well, his brother managed to stay away from drugs, study hard and go to college, so he could too, except he’s here selling poison to children. What about those children who will never go to college because of what your client did, counselor?”
The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.
Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants.
The numbers are clear. The reason behind them, not so much. Noel Erinjeri tried to parse them:
The obvious response to accusations of bias on the part of the judges is that the majority of sentences are set by plea bargain, and the judges are simply signing off on them. Thus, the racial onus would lie elsewhere, such as the prosecutors (who presumably make worse offers to black defendants, whether consciously or unconsciously) or defense attorney (who presumably aren’t fighting as hard for black defendants, whether consciously or unconsciously).
In a follow-up article, the Tom Lyons of the Herald-Tribune points out the flaws in that reasoning:
Sorry, but no. No matter how much weight that plea deal explanation carries, it is still no excuse for the judges, for several reasons.
The big reason: Judges aren’t forced to accept negotiated deals. Yet some strongly tend to – and rarely reject one. Others are known for balking, as they are supposed to when they see cause.
True enough, if we assume for the sake of argument that black defendants are coming off worse in plea negotiations despite being similarly situated in criminal history and the severity of their crimes; this is something that judges have to address, along with prosecutors and defense attorneys. That’s why we pay them the big money and have to stand up when they enter the courtroom.
While this addresses the disparity in outcome, the fault laid on the judges is for their failure to fix the disparity in plea bargains. The judges didn’t cause the disparities; they just didn’t fix them when the pleas came before them for sentence. Bias? Yes, of course. The judges see the hundred defendants before them a day for the same crime, see the disparity in negotiated sentences, and shrug. But it’s still not the cause, if not the cure.
If the Herald-Tribune’s Tom Lyons was too simplistic, the New York Times doubles down:
Prosecutors and defense lawyers have come to accept this racist system as a fact of life. The Herald-Tribune cited two teenagers who were charged with armed robbery in the same county. Prosecutors and the defense lawyer, with the approval of one judge, ignored the sentencing guidelines for the white teenager and struck a plea agreement for probation with no jail time. The black teenager was sentenced to four years, as recommended under the guidelines, and was told by his lawyer that it was the best deal he could get.
This reflects flagrant cluelessness as to how the system works. Plea bargains are in the hands of prosecutors. The defense can negotiate all it wants, but just because we demand dismissal, or probation, or life rather than execution, doesn’t mean we get it. The option is to go to trial, which is usually not an option at all. Remember, the prosecution picks its cases. The defense takes them as they come.
Lyons questioned whether public defenders were at fault for being complicit in this biased system.
Is it possible even the most supportive but over-loaded defense lawyers are more prone to see some white defendants as worthy of extra effort and time and hard bargaining?
Erinjeri didn’t quite dismiss this concern, but rejected it nonetheless.
When I was a PD, I fought just as hard for my black clients as my white ones. I know this, in my gut. This isn’t because of any particular virtue, racial or otherwise, on my part. It was because I took pride in being good at my job (or at least trying to), and getting an acquittal, or a dismissal, or an outstanding sentence fed my ego. And the race of who benefited from my efforts has never mattered to me.
Same with me. It’s never dawned on me to give a damn if they’re innocent or guilty, black or white. Like every decent criminal defense lawyer I’ve ever known, we try to win for personal pride. We fight to win. We fight for the best outcome in every case. It’s just what we do.
There’s a simpler explanation, but it defies what we want to believe and so it’s usually rejected as a possibility. We put nice white kids who lived safe and sanitary lives,* went to good schools, saw their aspirations come to fruition with their worst impediment being whether they would get an A or a B+, in charge of making decisions as to other people’s lives, passing judgment on the scope of their evils and the punishment to be imposed.
John Pfaff has been telling us this for a while now, that it’s all about the prosecutors deciding that a black guy, with whom they share no commonality, needs more prison than a white guy. This isn’t implicit bias, but just plain prejudice. This is the disease.
It’s true that judges could address the symptoms, and they don’t because their primary interest is to keep the gears grinding to get through their calendar every day. It takes time and effort to be more than a rubber stamp, and most judges don’t see the payback. Cutting a defendant a break can come back to bite them in the ass, get their mug on the front page of the New York Post if the defendant goes on to kill someone and he was the judge who let him out.
There are standards and practices, systemic demands that judges produce dispositions within time frames that newspapers and politicians deem acceptable. Keep them doggies moving, judge. No time to take a hard look at the case, at the defendant. If the parties agreed to a plea, that’s close enough. Move along.
And so the question is whether the prosecutor, some pimply-faced law school grad with a firm understanding of life in the suburbs and the harsh world of being turned down for the prom or losing the presidency of the chess club, but no grasp of the world of a black or Hispanic defendant whatsoever, should be left to fashion a sentence that he feels is “right” enough to save society and avoid a trial. This kid knows stuff. Ask him and he’ll tell you.
Is that it? Not entirely. We validate this kid’s decisions constantly, as we call for longer sentences, increasingly harsh punishments, rather than risk individualized assessments that might be wrong and could end up touching our lives. But what about the white guys who get the break when the black guys don’t?
Here’s the nastiest part of the equation: if we somehow managed to eliminate the disparity of prejudice from the system, the end result wouldn’t be black guys getting the same breaks as white guys, but white guys getting the longer sentences imposed on black guys. So everybody goes to prison for the same, long, pointless length of time. Prejudice solved. How’s that for a trendy solution?
*Not to name names, but want to guess how many prosecutors smoked dope in college, and maybe after they finished a hard day putting bad dudes in jail? Somehow, it never connects that they aren’t any better than the people they’re prosecuting; they just got away with it.