From: The Sentencing Project
A new report by the Center for Policing Equity finds that racial disparities in police use of force cannot be fully explained by racial disparities in arrest rates. In “The Science of Justice: Race, Arrests, and Police Use of Force,” Phillip Atiba Goff and colleagues developed “a conservative estimate of bias” by comparing police use of force patterns with local arrest rates in 12 police departments between 2010 and 2015. After controlling for the black-white gap in arrest rates, they found that police officers were more likely to use five categories of force (including Tasers and hand/body weapons) against blacks than whites. For many departments, these patterns reversed when use of force was benchmarked against arrests for serious violent crimes, but the authors caution that this method of comparison falls short in part because these crimes constitute only a fraction of all arrests.
Finding that broader crime patterns are not driving racial disparities in police use of force, Goff and colleagues suggest that “scholars and practitioners should look at racial disparities in other situational factors (e.g. resistance, drug and alcohol use, and officer perceptions of dangerousness) to determine whether or not they explain racial disparities in force.”
The Department of Justice has announced that 23,000 federal agents from agencies including the FBI, DEA, and U.S. Marshals Service, along with 5,800 U.S. Attorneys, will participate in implicit bias training over the next year. The training aims to prevent employees’ unconscious biases on characteristics including race, gender, and sexual orientation from affecting their decisions. The Department of Homeland Security, which employs 60,000 border patrol officers and agents, will not be required to participate in the training.
Deputy Attorney General Sally Q. Yates described the training as “an important step in our ongoing efforts to promote fairness, eliminate bias and build the stronger, safer, more just society that all Americans deserve.” The plan has attracted praise and criticism, with law professor Destiny Peery cautioning, “In some ways, the discussion of implicit bias has come to the exclusion of discussion about systemic or institutional biases.”
In “How Judges Think about Racial Disparities: Situational Decision-Making in the Criminal Justice System,” Matthew Clair and Alix S. Winter explore how judges make sense of and address racial disparities at four points in criminal trials: arraignment, plea hearings, jury selection, and sentencing. Published in Criminology and based on interviews with 50 judges in a Northeastern state, Clair and Winter found that most judges in their sample attributed racial disparities, in part, to differential treatment by criminal justice officials including themselves. A sizeable minority attributed disparities only to the disparate impact of facially neutral laws and differences in crime rates.
The judges reported using two primary strategies to address racial disparities: noninterventionist and interventionist. As Clair and Winter explain, “Noninterventionist strategies concern only a judge’s own differential treatment, whereas interventionist strategies concern other actors’ possible differential treatment as well as the disparate impact of poverty and facially neutral laws.” They argue that the noninterventionist decision-making used by most judges “helps to explain the persistence of racial disparities in the criminal justice system despite well-intentioned judging.”
“The Gavel Gap: Who Sits in Judgment on State Courts,” a new report from the American Constitution Society, finds that state courts fail to represent the diverse backgrounds of the communities they serve. People of color make up 38% of the general population, yet they represent fewer than 20% of state judges. Researchers Tracey E. George and Albert H. Yoon created a database of biographical information on more than 10,000 judges serving on state courts, and compared the gender, racial, and ethnic composition of state courts to the composition of the general population in each state.
These disparities are significant because state courts handle most of the country’s judicial business. In particular, as BuzzFeed News’s Chris Geidner notes: “The people who oversee the overwhelming majority of the criminal trials that take place in the country do not look at all like the people appearing before them.” Addressing this problem, George and Yoon argue, requires improving the processes for training and selecting judges.
The United States Supreme Court unanimously held in United States v. Bryant that prior uncounselled tribal court convictions resulting in jail time could be used to enhance penalties in federal courts, writes David Carroll of the Sixth Amendment Center. In 1967, the court decided in Burgett v. Texas that uncounselled convictions in state and federal courts violated the Sixth Amendment right to counsel and could not be used as predicate offenses. But as Carroll explains: “The Sixth Amendment right to counsel does not apply to indigent defendants in tribal court criminal cases carrying up to one year in jail.”
In a commentary published in The Marshall Project, Dominique Alan Fenton writes that although Native Americans are afforded rights outlined in the Indian Civil Rights Act of 1968, tribes determine the scope of indigent representation and they often cut public defense due to funding constraints. Fenton, currently a Youth and Family Court judge in Oglala Sioux Tribal Court, writes: “With no institutionalized defense presence, a judge or jury in our adversarial system cannot be expected to consistently arrive at proper conclusions of law with a vehicle that operates in such a profoundly imbalanced way.” Fenton calls on the Bureau of Indian Affairs and the Department of Justice to support public defense in tribal courts, and Carroll calls on Congress to amend the Indian Civil Rights Act.
African American Preschoolers More Likely To Be Suspended Than White Peers
New Department of Education school discipline data collected from more than 95,000 public schools show persistent racial disparities in rates of preschool suspensions. African American preschoolers were 3.6 times more likely to be suspended than their white peers during the 2013-2014 academic year. Overall, 6,743 preschoolers were suspended at least once, a 10% decline from the level reported two years earlier.
Psychology professor Walter Gilliam told NPR’s Cory Turner that black children’s higher rates of poverty may produce behaviors that perplex teachers, while teachers’ implicit biases “tend to hold African-American children as more culpable.” Gilliam recommends banning preschool suspensions – following schools in Chicago, Baltimore, and Washington, D.C. – and giving teachers better training to manage their classrooms. Separate from the report’s release, Secretary of Education John King criticized public charter schools for harsh discipline practices that are often at the expense of students of color.