By David Greenwald
We have seen in a wide variety of areas that, where police and prosecutors exercise discretion, it leads to huge disparities between whites and people of color. We have seen it locally and nationally with police stops. We have seen it in areas like drugs, where research continues to show whites and Blacks commit offenses at comparable rates—and yet the Black arrest and incarceration rate is vastly disproportionate.
Earlier this week Miriam Krinsky of Fair and Just Prosecution and Marcy Mistrett of the Campaign for Youth Justice noted the discrepancy between filing as adults. She noted, “Research shows children break the law at the same rate, regardless of race, but from 2005 to 2018, the percentage of Black children transferred to adult court by a judge rose from 39.1% to 51.7%, while the percentage of white children dropped from 45.2% to 32.2%.”
That is striking because over that period of time crimes rates and violent crime rates for both groups fell to 40-year lows—despite this, Black children saw their percentage of cases transferred to adult court actually increase.
Moreover, Krinsky and Minstrett argued “though 60% of the broader youth population is white, 88% of children in adult jails and prisons in 2012 were youth of color.”
Again, remember, this is not due to differentials in crime as some have argued. Instead, driving this, a study by Campaign for Youth and Justice found, is implicit bias where “white people have seen children of color as older, 
more threatening, and in general as mini-adults rather than vulnerable children.”
Another area where this shows up is in sentencing enhancements.
Newly-elected Los Angeles County DA George Gascón has been attempting to eliminate the use of sentencing enhancements. But there has been tremendous pushback from law enforcement and some of his deputy DAs.
Enhancements add time to sentences. For example, as an LA Times Editorial this week points out, “Instead of getting the high end of the range for robbery, you’d be sentenced to an additional 10 years if you used a gun, whether or not it was loaded. Add 20 if you fired it, and life imprisonment if you caused injury with it.”
As they point out, “Of course we want to punish gun violence, but there was no need to add enhancements to a robbery charge to do that; the defendant could simply be charged with assault with a deadly weapon or a host of other base crimes that better matched the defendant’s deeds.”
And of course, if you are a gang member, you get gang enhancements which “are disproportionately charged against Black and Latino defendants, reintroducing and, in fact, exacerbating racial disparities that were supposed to be eliminated by determinate sentencing.
“Even though the crimes and the sentences were the same, the actual time served increased substantially,” they write.
In a lot of cases you are adding time for enhancements that really don’t impact the base crime. Should someone who kills with a gun really get more time than someone who kills with a knife? Someone who beats someone up should get more time if they have a gang affiliation?
One thing we saw was that DAs would charge minors with gang enhancements that were sketchy as best, but under previous laws they had the incentive to do so because then it allowed them to direct file as adults—even for very minor crimes.
All of this creates a huge disparity in sentencing between whites and people of color.
There are consequences to that.
The LA Times points out, “For many crimes, prosecutors can now choose from a nearly bottomless well of charging choices with an enormous range of possible sentences. They can use these options to dissuade a defendant — even an innocent one — from going to trial. Plead guilty and serve nine years, for example, or face 39 years in prison if convicted.”
Chesa Boudin, the San Francisco DA, was the first to eliminate a number of the status enhancements—including gang enhancements that have proven so problematic. When Gascón was elected last month, he did the same.
As the LA Times points out, “Gascón cut through this irrationality with his order to charge only the base crime and not the enhancements.”
This has triggered irrational pushback and fear.
As the Times point out, “Some news accounts implied that the result would be murderers, rapists and other dangerous criminals immediately walking free.”
They call this “bunk.”
And they are right. Murder is still murder. Rape is still rape. They argue that “the order does nothing to reduce those charges or the statutory punishments.” You commit murder, you are doing 25 to life, minimum.
The only difference: “In some cases, a convicted perpetrator might now be granted a parole hearing after serving decades in prison. That reintroduces one of the positive aspects of indeterminate sentencing: The criminal is punished and the public is protected, yet the inmate retains an incentive to participate in rehabilitation programs in the hope of gaining release many years in the future.”
Guess what—parole boards are not shy about keeping people who remain dangerous behind bars, even through countless parole hearings.
But what we need to start attacking is not only mass incarceration which puts people in prison well beyond the point where they are dangerous, but also racial disparities which show up at each step of the way.
There are differentials in some crimes for the rate of committing those crimes, but all too often, even when we control for other variables, people of color are more likely to be arrested, convicted and serve greater sentences than their white counterparts.
That perpetuates the inequality of the system and undermines our system of justice.
—David M. Greenwald reporting
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Are you advocating for NO “discretion” at any point? [warning… ‘trick question’]
Or, are you pointing out that discretion has the possibility of “abuse”? [just gve you your “out” on the first question… HNY!]
It’s actually a good question. Obviously you don’t want to eliminate discretion. But I think too many people fail to recognize the amount of discretion that exists in the system – all the way through. And that leads to judgment calls which leads to inequity.
As I learned language, the difference between “discretion” and “judgement calls”, is basically nada… nothing… de rien… ‘a distinction without a difference’… pick your ‘poison’
Bad judgement, bad discretion tends to be “in the eye of the beholder”… I apologize for protracting this, but you seem to simplify too much… police have to discern, as do DA’s, judges, and juries… and they all make “judgement calls”… except for gravity and some other basic forces of the universe, nothing is infallible..
I believe we have the ability to take the racist bias out of the system entirely in considering charges and sentencing. This could be done by “blinding” the prosecutors, the judges, and juries to the race of the accused. The accused could still have the benefit of “appearing” before a judge or jury of peers behind a screen or blank zoom image while still being able to see his judges. His/her case could be presented to all beyond the arresting officers as John or Jane Doe followed by a number thus making guessing race by name impossible. That would be truly a case of “blind justice”. Discretion could still be used based on the details of background and offense, just not by racial identity. I know there had been some consideration of this approach. I do not know where it stands now.
Wouldn’t you also have to “blind” the victims and police in the first place?
Assuming (again) that the reason for the discrepancy is based upon skin color?
TW, a woderful idea, but I don’t see how you keep people invisible or how that would help. Isn’t the demeanor of the defendant a big part of the trial thang? You’d have to disguise voice, make sure they were in separate corridors, never saw a photo. I don’t see how.
This is usually referred to as a double-blind system. Such proposals have been made, particularly in the context of trials themselves. (It would be virtually impossible to hide race from prosecutors investigating and preparing to try cases.) It raises many practical and constitutional issues but is, perhaps, worth piloting on limited bases. For a discussion of the issue, see, e.g., https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=1077&context=ijlse
From article, below (the first one that popped up):
????? ?? ????? ????? ?????????? ??????? 2020 – ??? ????? ????????? ???’? ??? ??????? (whiteprivilegeisntreal.org)
Advance note: I’m not going to be wasting time on this for the entire day. 😉
Go walk around Oakland or Stockton at night, and see what happens. Then, compare that to what happens when walking around Davis (as long as you don’t run into a visitor).
My article cites the juvenile crime rate, your cite is the overall crime rate (which I would argue is itself misleading), but two different stats.
So, your premise is that there could be an overall difference, but not before age 18.
Whatever.
I don’t particularly “like” wading into these waters, but those with your point of view seem intent on promoting a lie.
There is a study and a link attached to it, you are free to not read it.
Well, you can read the article and statistics I’ve posted, as well.
I didn’t read either one, nor (more importantly) have I analyzed whether or not these studies are conducted properly (the study parameters, assumptions, variables, etc.).
I suspect that there’s elements of truth in both points of view presented. But, you only point out one – again, based upon a political belief.
I have no dog in the fight, either way. I’m not trying to prove anything, other than the fact that you’re promoting a view – rather than an objective, reality-based examination. Of that, I’m quite confident of.
That isn’t even close to being a reasonable site to link to. It is literally anonymous.
As I said, that’s the first one that popped up.
Do you believe that all skin colors commit crimes at the same rate?
In any case, here’s another article for you – since you apparently don’t want to research this on your own (and are willing to accept what David “spoon-feeds” you). 😉
FactCheck: do black Americans commit more crime? – Channel 4 News
Bottom line: Do your own research. Or maybe, rely a little on common sense when looking at any of these statistics.
Either that, or go ahead and visit Oak Park some night. Maybe you can explain to those folks that crime rates are similar:
https://www.msn.com/en-us/news/crime/2-shootings-reported-in-sacramento-on-new-year-e2-80-99s-day/ar-BB1cp1JU?ocid=uxbndlbing
You continue to ignore the fact that my article – citing a study with a link – is not making a general claim about Blacks committing crime, but a specific one about the rate of juvenile crimes, which to date you have not attempted to address or refute.
I suspect that there’s also a significant political disincentive to objectively examine the issue in the first place.
The problem with the “political correctness” around this issue is that when you start out with a lie, the foundation of any actual solutions is automatically undermined. A house of cards.
For example, if you conclude that the justice system is the problem (and proceed to dismantle it), how is the public going to react if the crime rate then skyrockets? (Actually, we’ve seen this type of thing in decades past. Similar efforts.)
So, it’s probably best to not start out with a lie, in the first place. Covering up the truth is not “anti-racist”, and it’s likely harmful in the long run.
Let me know if you find data to refute Krinsky’s claim based on the study she cites.
Well, she starts out with this statement, without even noting where it came from:
But regardless of what you present on here, I don’t think it’s believed beyond the activists who already agree with that point of view. I’m not sure that you actually understand that, and that you believe that citing questionable statistics will help you “prove” anything.
I do “wish” that the cited comment was true. (By the way, I don’t assume that whites are at the bottom of that list.)
Again, your premise is that there may be a significant difference in crime rates between skin colors, but not before age 18. It would likely take a significant amount of effort (and nonsensical arguing back-and-forth) to “prove” anything regarding that on this blog.
In any case, go tell that to the 15-year old girl who was shot in Oak Park. (I realize that you’d probably conclude that it’s “racist” to make a guess regarding her probable skin color.)
Like climate change and who won the presidential election, it’s an issue of facts, not beliefs. Question the validity of the data with contrary evidence. Or question the conclusions drawn from the data. But simply denying the data because you don’t like the results is completely unproductive.
You can see what a waste of time it is to comment on this blog, when other commenters make statements such as Eric’s – despite the comment DIRECTLY ABOVE his.
Actually, the article itself simply states this as “fact” – based upon some other, unnamed “research”.
Ron – My comment wasn’t directed at you, personally. Would, perhaps have been clearer if I had said “But simply denying the data because one doesn’t like the results is completely unproductive.”
I hear this from those on both sides of these issues. But clearly the other side is wrong. Makes life so easy.
Ron
Your persistence in citing what happens in Oakland and Stockton means precisely zero when discussing events in Davis or Yolo County. That is the height in stereotyping. Would you find me, of Italian extraction, to be more guilty of being mob affiliated because my ancestors came from Sicily? Because that is the line of reasoning you are using.
What part of this article is limited to Yolo county?
What do you suppose the racial makeup is, in the cities I cited?
Let me ask you something (that others seem to deny).
Do you believe that crime rates are “equal” across all skin colors? (I believe this would be nearly statistically impossible.) We’ll leave out gender and age, for the moment.
Actually, go ahead and believe whatever you want.
Ron
“Wouldn’t you also have to “blind” the victims and police in the first place?”
I am going to treat this as the nonsense comment it is since there is no practical way to do that, while the “blinding” of the prosecutors, judges as jurors is imminently possible. This practice first came to my attention when orchestras became gender-integrated after blinding the judges to the gender of the applicant.
You do ask a valid question about my beliefs on racially-based crime. What I believe is that people of all colors do commit crimes. The types of crimes committed may well be influenced by the circumstances into which one is born. For example, if you are in a rural situation, theft of horses, cattle or other livestock will be more common than in urban settings. If you live in a ghetto, theft, assault may be more common. If you grow up rich, white-collar crime is likely more prevalent. If you are the son or daughter of a rich person, your parent may have been more likely to buy or lie your way into a particular university. I would say that crime is likely uniform across races but that some people are only concerned about a limited range of crimes, no matter that other crimes may actually cause more harm on the societal level.
Uh huh.
Seems to me that whether or not one makes that initial comment (which may not be popular among the activists on here) determines whether or not one might feel compelled to respond to the subsequent twisting of comments by others, etc. Some of which border on an attack on the person, rather than the points put forth.
Would you say that’s more of a reflection of the blog (and the activist nature that it presents and attracts), or the individual commenter who challenges it? Maybe both?
By the way, you didn’t answer my question, challenging the statement put forth in this blog. Do you believe that all skin colors commit crimes at the same rate?
I’ve already posted data (from an apparently-objective source, after you appropriately challenged the first one) which shows that not only is this untrue, it is GROSSLY untrue.
I agree with the point I believe Bill was making. Discretion is not the issue or something we want to limit. The issue is who is exercising that discretion, what education and training they have, and what information they are relying on.
Here’s a very comprehensive discussion of reducing racial disparities in the criminal justice system: https://www.sentencingproject.org/wp-content/uploads/2016/01/Reducing-Racial-Disparity-in-the-Criminal-Justice-System-A-Manual-for-Practitioners-and-Policymakers.pdf. One of the areas it focuses on is the legal profession. Collectively, it needs to do a better job in outreaching to and recruiting minority students and others having an interest in addressing these issues. The same applies to those recruiting for DAs offices and making judicial appointments. Law schools and professional continuing education needs to include a focus on the issues.
You’ve got to start at the beginning, not only at the end of the process to bring about effective reform.
“Actually, the article itself simply states this as “fact” – based upon some other, unnamed “research”.
David has posted articles supporting this finding many times in the past. He might be willing to do a compliation of these studies if you were to ask for one.
Edit
That ridiculous claim underLIES the entire article, to begin with.
Now, a “legitimate” question might be to what degree does racism impact the disparity. And, I doubt that’s an easy question to answer. (At least, “honestly”.)
That’s it for me, today.
When one (not just RO) is willing NOT to have the last word, amazing how much shorter the comments section is. [he says, claiming the current status of, “Thine with the Holy Last Word”]