Hans Bader raises a bill that passed with overwhelming support in the California Assembly and is now under consideration in the Senate that would authorize judges to take the race of a defendant into account in sentencing.

The bill would add a section to the Penal Code of California requiring courts, whenever they have the authority to determine a prison sentence, to “rectify” alleged racial bias in the criminal justice system by taking into account how historically persecuted minorities are affected differently than others.

“It is the intent of the Legislature to rectify the racial bias that has historically permeated our criminal justice system as documented by the California Task Force to Study and Develop Reparation Proposals for African Americans,” the proposed new section to the Penal Code reads. “Whenever the court has discretion to determine the appropriate sentence according to relevant statutes and the sentencing rules of the Judicial Council, the court presiding over a criminal matter shall consider the disparate impact on historically disenfranchised and system-impacted populations.”

Hans discusses the constitutionality of such a measure, which almost certainly violates the Due Process and Equal Protection Clauses, except perhaps as framed by Justice Ketanji Brown Jackson, But even assuming that it was held constitutional as a remedial measure to overcome the “systemic”* racism of the legal system, would it work? Would it be beneficial, even to its intended beneficiaries?

Consider three defendants, each of whom stands convicted of the same charge, a carjacking. One is white. Two are black. One of the black defendants comes from a broken home, dropped out of school and is a regular drug user. He’s never held a legal job and has 3 priors. The other  two defendants come from two parent families, completed high school and occasionally smoke pot. Both have spotty employment records, but have worked. Neither has any priors. Under this scenario, the black defendant with priors would be the one who suffered the most from the legacy of racism, basically have all the disadvantages that are alleged to be products of residual racism and none of the “privileges” that the second black defendant has.

Under this proposal, this defendant might be given a reduced sentence, which might be framed as remedial or reparations for the racism he suffered that brought him to the point of engaging in a carjacking. Of the other two, it’s conceivable that the other black defendant would receive a lesser sentence than the white defendant simply for being black and the presumed burden he carried based on race per se. The white defendant would get slammed, as he has no racial excuse for his conduct.

There is an argument to be made that a sentence that takes into account societal burdens imposed on defendants due to their race justify remediation. But what does such a sentence do to the incentive system inherent in the sentencing process? What about the reparations due to the victim of the crime, also disproportionately likely to be black? What does such a sentencing accommodation do to the individual defendant upon whom it’s conferred? Is a significant part of the purpose of a sentence not to serve as a deterrent to future crime, partially for the benefit of future victims and partially for the benefit of the defendant so as to turn away from crime and lead a happy, successful, law-abiding life going forward?

In some respects, this consideration always has, and likely always will, play a role in sentencing. Criminal defense lawyers have long argued about their clients’ upbringing, education, suffering and burdens as a means to explain why their conduct was not malevolent and that they acted out of desperation rather than some inherent evil. Indeed, many a judge would sentence a defendant who can proffer no excuse for his conduct more harshly, as he’s enjoyed every opportunity to lead a happy, successful, law-abiding life, and still he chose to commit a crime and harm others.

The difference in what California is attempting to do is not just tie it directly to race, but to turn race into a legitimate per se sentencing factor. Much as with the affirmative action cases recently decided, this can easily serve as a negative consideration. In order to create the appearance of going lighter on a black defendant, sentence white defendants even more harshly than now so that sentencing black defendants to the same sentence they would ordinarily receive would appear less harsh in comparison.

Then again, once the use of race is legitimized as a sentencing factor under the rationale of reparations, will judges remember the rubric and forget the rationale when the pendulum swings and we return to our usual carceral ways?

As there is not now, nor has there ever been, any hesitancy to argue that a defendant’s sentence should be lower because of the disadvantages he has suffered that have impacted his thought processes, his potential and his opportunities, Califorinia’s proposed law codifies something that has long been argued based on substance rather than presumed based on race. Breaking down that barrier opens the door to grave mischief. Good intentions aside, this is not merely an unconstitutional law, but a bad idea.

*”Systemic,” in this instance, meaning there is no need to identify any particular wrong giving rise to the problem, but mere invocation of systemic is sufficient to conclusively establish its truth.