Commentary: Is Reisig Attacking Racial Inequities in the Right Place?

By David M. Greenwald
Executive Editor

Woodland, CA – In 2018 report submitted to the UN by The Sentencing Project they noted “the racial disparity that pervades pervades the U.S. criminal justice system, and for African Americans in particular.”

They noted: “African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.”

All told, “African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely.”

Those numbers are similar to but below the discrepancy that we see in Yolo County.  After years of denial by DA Jeff Reisig, this year he has rolled out changes of policy including a data portal and system that will allow for “blind charging” – an algorithm developed by social scientists at Stanford.

As his likely opponent, Cynthia Rodriguez points out in an op-ed in the Vanguard last weekend, “The basic problem with DA Reisig’s new “blind charging” program is that it passes off responsibility for fixing the problem of systemic bias to an algorithm that substitutes for the exercise of sound judgment. DA Reisig’s consistent failure to exercise good judgment at the critical point in the criminal justice process — the DA’s policy for charging people with crimes (for one example, his inability to consider statutory diversion programs for all Yolo residents) – is the real source of the problem.”

For the racial blind charging method to work, we have to assume that overt or unconscious individual level bias is driving the discrepancy in the system.  That racially blind charging decisions can fix the problems not only at the DA’s level of discretion but elsewhere in the system.

Don’t get me wrong – DA’s make important decisions of when to charge, what to charge, and what to offer – but to assume that the problem is that they are consciously or even subconsciously charging people based on race or ethnicity, probably vastly underestimates the problem.

One of the biggest areas of differential law enforcement is in the area of drug enforcement.

As the Sentencing Project’s report noted, “drug offenses” are “committed at roughly equal rates across races.”

So if the police arrest a Black person for a drug offense, how is an algorithm that stamps out race going to solve the problem that the Black person was arrested and the white person was not?

There are a lot of theories about why this is the case, the police offer one.

“One reason minorities are stopped disproportionately is because police see violations where they are,” said Louis Dekmar, the president of the International Association of Chiefs of Police, and chief of LaGrange, Georgia’s police department (as cited in the Sentencing Project report).

The chief added: “Crime is often significantly higher in minority neighborhoods than elsewhere. And that is where we allocate our resources.”

The argument here is basically – there is more crime in minority neighborhoods and thus more attention paid by law enforcement which drives more arrests for drug crimes.

The Sentencing Project finds: “More than one in four people arrested for drug law violations in 2015 was black, although drug use rates do not differ substantially by race and ethnicity and drug users generally purchase drugs from people of the same race or ethnicity.”

The ACLU found that blacks were 3.7 times more likely to be arrested for marijuana possession than whites in 2010, even though their rate of marijuana usage was comparable (that’s consistent with the 80-20 breakdown other studies have found).

That’s why War on Drugs policing policies like “Broken Windows” and “Stop and Frisk” create much higher levels of police contact with Blacks than with whites.

One of the responses to these concerns is to argue – well, minority communities are more likely to have higher crime rates and thus police should deploy their limited resources there.

That may well seem logical, but there are two points that should be raised here.  First, the fact that areas that have high concentrations of communities of color have higher crime rates are due in part to the high concentration of poverty – much of that created by segregated (de facto as well as de jure) residential patterns is itself both a product of and a continuation of systemic racism.

And second, if that is what is driving racial inequities in the system, you are not going to solve it through blindness but rather policy changes.

The Sentencing Project recommendations a number of reforms: ending the war on drugs, eliminating mandatory minimums, reduction of the use of cash bail, requirements on the use of racial impact statements, training, among others.

While the local DA’s office cannot end the war on drugs, they do have discretion on when and what to charge.  DA Reisig has fought and at times attempted to circumvent Prop 47 for example that reduces drug possession felonies to misdemeanors.

Not only has Reisig consistently opposed it – including last month in his monthly ‘townhall meetings’ but as Jessica Pishko showed in her 2018 article in the Appeal, he has actively attempted to circumvent it.

For instance, she cited examples where Reisig used a felony conspiracy charge as a work around.

“Prop 47 makes certain low-level crimes misdemeanors. But by using a felony charge known as “conspiracy to commit misdemeanor”—the charge makes any theft conducted by more than one person a felony regardless of the amount—Reisig is threatening to send people to prison for minor acts of theft,” Pishko writes.

Instead of reducing the use of bail, his office has actually attacked zero bail in monthly releases that contained questionable uses of data – a practice he seems to have stopped in the last few months.

He continues to utilize gang charges, even though such charges end up being used 92 percent of the time against people of color and simply add to the racially disparate impact of sentencing without a clear nexus that shows they enhance public safety.

In short, the racially blind charging policies at best nibble around the edges and leave the more substantive changes to another time or another administration.

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