For generations, “bleeding heart” liberals fought for a colorblind society, where every person would be afforded equal opportunity to achieve as much success and happiness as she could. Now, we learn, this was racist all along, as there can be no such thing as a colorblind society, and more pointedly, the society created by the majority came at the expense of the minority.
The only way to correct this normalization of white supremacism was to put the minority in control. A good ally will shut up, apologize for being awful and either hand over the keys or do as they’re told. When it comes to prosecutorial charging, however, colorblindness is making a comeback.
George Gascón, the [San Francisco] district attorney, has acknowledged that a disproportionate number of African-Americans are prosecuted in the city, which led him to ask a troubling question: To what extent does bias affect the work of prosecutors?
As a result, the office has begun experimenting with an approach it describes as “blind charging,” which prevents prosecutors in one of the nation’s busiest district attorney’s offices from seeing demographic information before making an initial decision on whether to charge someone.
Are charging decisions racially charged? It may reflect police decisions in whom to target, whom to arrest, but even if these are more significant drivers of the racial disparity in criminal prosecutions, there is still a possibility that charging decisions as well reflect racial animus.
More importantly, what harm can come from blind charging? Many of the experiments being played out by reform prosecutors may risk problems, whether neglect of concern for the victims of crime or irrational exuberance as to the good nature of ungood people. But blind charging? There’s no downside to it.
In recent weeks, the office has begun by removing details — like race and names — from police reports before turning those cases over to prosecutors to decide whether to press charges. Starting in July, the office intends to employ computer software designed by Stanford University researchers to redact a suspect’s race and name, and that of victims. Also removed will be locations where crimes were said to have been committed.
The mechanics of blind charging raise some questions about whether, in the effort to eliminate the indicia of race, it also sanitizes relevant information that ought to be taken into account. Are crimes one-off, or endemic? At the same time, there are indicia of race, ethnicity and class that can’t be easily whitewashed.
The only information prosecutors will initially have access to is an officer’s incident report, which generally includes the reason someone was stopped before an arrest, evidence that a crime was committed, witness statements and anything a suspect might say.
Statements tend to be a fairly obvious way to discern the race of the accused, even if not quite the way people might hope. A Harvard grad might use different language in his confession than, say, a guy whose education was somewhat limited. Do the witnesses speak in vernacular or standard English? Does the perp ask for a “lawyer dog”?
While hashing out the details that will make this work, or at least give rise to a more useful tool in ascertaining whether the decision to prosecute or not, or what to charge, is a reflection of racial bias, may not be as simple as removing the name and race of the accused, it’s hard to take issue with the approach of making such decisions devoid of any racial implications. After all, no one’s race should make their treatment by the government more harsh, or more lenient, than the conduct warrants. How could that be controversial?
Yet, there’s a nagging concern lurking behind this otherwise excellent idea of blind charging. Much as old school liberals are now told they’re racists for not recognizing race as a reason to proffer a benefit to the previously oppressed, does blind charging not fail to take into account all the same cries of structural racism?
While blind charging may be a good idea for the moment, will it swiftly swing back to very specific racial charging, except with race morphing from detriment to benefit? Rather than being more harsh to a black person, will charging determinations be more forgiving, more understanding, of black people who commit crimes because of the historic oppression suffered?
If crime is driven by poverty, lack of education, inability to obtain a decent education or job, then shouldn’t this factor into charging decisions as well? A crime committed by a white person would then be charged more harshly, as it enjoys none of the presumptions of historic prejudice. Isn’t it worse to be privileged and still engage in crime?
Granted, it’s a slippery slope argument, but we’ve already slipped way down the slope. And anybody, like an old-school “bleeding heart” liberal who might challenge the monumental distinction between imposing detriments on people based on race with conferring benefits based on race that shifts one “privilege” for another, rather than eliminates detriment for all, are informed that they should shut up and listen.
The problem isn’t that blind charging isn’t at worst a worthwhile experiment and at best a sound means of removing the taint of racial bias from prosecutors’ discretion. But once we go there, as well we should, can it be contained so that colorblindness is accepted as an approach rather than racial favoritism, just in the other direction? Maybe those old-school “bleeding heart” liberals weren’t so wrong about colorblindness, as it’s no less bad for a victim to be mugged by a black guy than a white guy. Or gal.