A KICK IN THE BEHIND

…is always a step in the right direction.”   Is my favorite quote from baseball legend, Casey Stengel.  My last blog entry addressed a troublesome Seattle Times article about comments made by one of my colleagues which I felt were largely misinterpreted.  But as often happens, great things may emerge from unfortunate events.  One or more members of this court were perceived as being racially insensitive.  It triggered a welling of emotion from many and threw new light on a problem we all knew existed: different minority groups are treated more harshly under the law than others.  It is a problem that is prickly and difficult to solve.

The State Supreme Court, under the leadership of Chief Justice Madsen, captured the momentum and provided direction by creating a Taskforce of Race in the Criminal Justice System.  On March 1, 2011, at the request of Bar and minority leaders, a forum on Racial Bias in the Criminal Justice System was held, appropriately, in the State Supreme Courts own courtroom.  It was a remarkable coming together of many of the key players needed to identify and address the problem.  It was unique in my experience and there was a sense of empowerment in the air.  Numerous law enforcement officers were present including King County Sheriff, Sue Rahr, who moderated the discussion.  Prosecutors, particularly from King County and the Seattle City Attorneys Office participated.  Also present were a veritable Who’s Who of state, local, and minority bar leadership as well as leaders of the states law schools including the dean of the University of Washington School of Law, Kellye Testy.  There were judges from every level of court.  And perhaps most importantly, there were academics.

I say, perhaps most importantly academics, because presentations by Professor Jason Gillmer, Gonzaga University School of Law, Professor Katherine Beckett, University of Washington Department of Law, Societies and Justice, Associate Professor Alexes Harris, University of Washington Department of Sociology, and Professor Robert Chang, Director, Seattle University School of Law Korematsu Center for Law and Equality focused the discussions on concrete, identifiable and demonstrable facts.   There are undoubtedly people who hold racial biases and engage in intentional racial discrimination in all levels of our society including all levels of the justice system.  We have been addressing these issues, and as I have said before, the Washington State Supreme Court, both as individuals and as an institution, have been leaders in the fight against discrimination.

However, even if we were to eliminate all intentional racial discrimination, many of our practices and procedures have different impacts on different social, economic, and racial groups in our society.  There is a word for this difference in impact on different racial groups: disparate treatment.  Our adherence to these practices simply perpetuates the disparate treatment of racial groups.  For example, research shows that law enforcement officers tend to focus more “on crack cocainea drug associated with blacks stereo-typically and in practice.”  The focus on crack cocaine results in a disproportionate number of arrests and convictions of African Americans.   One of the major criteria used by courts to determine whether a defendant should be released on bail is employment history.  Defendants who are employed are more likely to be released on bail while those unemployed are more likely to remain in jail, which results in more whites being released on bail than minorities.  There are many more examples.

These facts present difficult issues.  Obviously, crack cocaine cannot be ignored and employment like other ties to the community remains a good indicator that a person will appear for trial.  The Taskforce on Race and the Criminal Justice System made specific proposals which we will work to implement.  Never before have I seen so many people from such diverse areas of the justice system come together committed to work together and eliminate bias in the justice system.  As a result of a kick in the pants we have made a step in the right direction