Systemic triage: implicit racial bias in the criminal courtroom.

• Author: Richardson, L. Song
• Position: Book review

Crook County: Racism and Injustice in America's Largest Criminal Court

BY NICOLE VAN CLEVE

STANFORD UNIVERSITY PRESS, APRIL 2010.

BOOK REVIEW CONTENTS INTRODUCTION I. RACISM IN PRACTICE A. Policing Racial Boundaries B. Culture and the Race-Blind Code C. Limitations II. SYSTEMIC TRIAGE AND ITS RACIALIZED CONSEQUENCES A. Implicit Racial Bias B. Systemic Triage C. Implicit Bias Under Conditions of Systemic Triage III. RECOMMENDED REMEDIES A. Problems with Court Watching B. Individual, Institutional, and Systemic Solutions CONCLUSION INTRODUCTION

The criminal justice system is broken. Its policies and policing practices flood courtrooms in urban environments with too many cases to handle given available resources. Many are cases involving indigent individuals of color accused of nonviolent offenses. Scholars like Sasha Natapoff, Jenny Roberts, and Issa Kohler-Hausmann are bringing much needed attention to this serious issue, focusing primarily on misdemeanor adjudications. (1)

In a groundbreaking new book, Crook County: Racism and Injustice in America's Largest Criminal Court, Professor Nicole Gonzalez Van Cleve (2) adds an important, novel dimension to this problem. She exposes the deeply flawed operation of the criminal justice system by focusing on how felonies are processed in Cook County, Illinois. Her disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States, (3) is based upon 104 in-depth interviews with judges, prosecutors, public defenders, and private attorneys; her own experiences clerking for both the Cook County District Attorney's Office and the Cook County Public Defender's Office; and one thousand hours of felony courtroom observations conducted by 130 court watchers. (4) This mix of perspectives, all of which focus on the court professionals "whose actions define the experience and appearance of justice," (5) provides a chilling account of how racialized justice is practiced in the Cook County criminal justice system, despite the existence of due process protections and a court record. By "turn[ing] the lens on those in power as they do the marginalizing," (6) Van Cleve reveals how judges, defense lawyers, and prosecutors transform race-neutral due process protections into the tools of racial punishment.

An important theme of Van Cleve's book is that the racism practiced in the Cook County courts is not "more enigmatic than the overt racism of the past." (7) Rather, it is equally "pervasive, direct, and violent." (8) To substantiate this point, she exposes deeply problematic and explicitly racist practices that courtroom actors engage in, despite holding seemingly contradictory perspectives. This is one of the more compelling aspects of her book, since it is unusual to encounter such blatant racism on display in this ostensibly colorblind and post-racial era. She explains how these actors "claim their behavior as 'colorblind' through coded language, mimic fairness through due process procedures, and rationalize abuse based on morality--all while achieving the experience of segregation and de facto racism." (9)

In this Review, I complicate the theory of racism underlying Van Cleve's ethnography. Although she never states this explicitly, her theory rests on the assumption that racial bias is visible and conscious, even if expressed in ways that mask its presence. This is demonstrated not only by the examples she uses, but also by the book's conclusion, which encourages readers to go to court to observe the racist practices she describes and thus shame courtroom actors into changing them.

However, I argue that the problem of racial bias is not so limited. Rather, research from the past several decades reveals that implicit racial biases can influence the behaviors and judgments of even the most consciously egalitarian individuals in ways of which they are unaware and thus unable to control. Additionally, the effects of implicit biases may not be open and obvious. Importantly, then, the absence of discernible racism does not signal the absence of racial bias. Furthermore, since it is not possible to detect the influence of implicit biases on decision making simply through observations and interviews, it is difficult to ferret out and even more difficult to address. Yet, the absence of overtly racist practices does not make the problem of racial bias any less concerning.

Despite the fact that implicit biases operate in the shadows, I argue that there is strong reason to suspect that they will influence the judgments of courtroom actors in Cook County, even after blatantly racist practices disappear. This is because criminal courthouses in jurisdictions across the country, including those in Cook County, are bearing the brunt of "tough on crime" policies and policing practices that disproportionately target enforcement of nonviolent and quality of life offenses in indigent, urban, and minority communities. These policies and practices burden the system with more cases than it has the capacity to handle, resulting in what I refer to as systemic triage.

Triage denotes the process of determining how to allocate scarce resources. In the criminal justice context, scholars typically use the term triage to describe how public defenders attempt to distribute zealous advocacy amongst their clients because crushing caseloads limit their ability to zealously represent them all. (10) In this Review, I build upon my prior work examining public defender triage (11) and use the phrase systemic triage to highlight that all criminal justice system players are impacted by such expansive criminal justice policies and policing practices--not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges.

I argue that under conditions of systemic triage, implicit racial biases are likely to thrive. First, these criminal justice policies and policing practices will strengthen the already ubiquitous association between subordinated groups and crime by filling courtrooms with overwhelming numbers of people of color. Second, implicit biases flourish in situations where individuals make decisions quickly and on the basis of limited information, exactly the circumstances that exist under systemic triage. In sum, the problem of racial bias will likely persist under conditions of systemic triage, even when it is not accompanied by patently racist behaviors. This problem is even more pernicious because its subtle nature makes it more challenging to expose and correct.

This Review proceeds in three parts. Part I summarizes and analyzes Van Cleve's ethnographic evidence and conclusions. Importantly, because her account is primarily qualitative, I cannot quantify the frequency with which the problematic practices she identifies occur nor determine how representative her examples are. Part II argues that racism in the criminal justice system is more problematic and pernicious than even Van Cleve's account suggests. Relying on social science evidence demonstrating the existence of implicit racial biases, I argue that these biases can influence the discretionary decisions, perceptions, and practices of even the most well-meaning individuals in ways that are not readily observable. We should be especially concerned about implicit bias in courtrooms experiencing systemic triage. Finally, Part III offers some solutions to reduce the racialized effects of systemic triage.

1. RACISM IN PRACTICE

   Van Cleve's haunting ethnography argues that the existence of "myriad due process protections, legal safeguards, and a courtroom record supposedly holding judges and lawyers accountable" (12) does little to prevent racism from manifesting in the criminal courtrooms of Cook County. Rather, her work reveals how these courts are "transformed from central sites of due process into central sites of racialized punishment." (13) This punishment takes multiple forms, including treating people of color as criminals even when they are members of the public appearing in court as jurors, witnesses, or researchers; (14) ridiculing defendants with stereotypically black-sounding names; (15) mocking the speech patterns of black defendants by employing a bastardized version of Ebonics; (16) using lynching language during plea negotiations; (17) and subjecting people of color to degrading and humiliating treatment. (18) Van Cleve argues that courtroom actors also routinely punish defendants of color for attempting to exercise their due process rights.

   Evidence from her ethnography reveals that judges, prosecutors, defense lawyers, and sheriff's deputies engaged in these racialized practices. Even more disturbingly, bad racial actors were not the only ones to treat people of color more harshly. (19) Van Cleve's ethnography would be slightly less chilling if this were the case because then one could take some comfort knowing that the problems would disappear once all the bad apples were removed from the system. However, Van Cleve's observations foreclose this simplistic account. Rather, she includes examples of even well-meaning judges, prosecutors, and defense lawyers participating in and sustaining this system of racial punishment.

   The obvious question is how can actors who "subscribe to the principles of due process, ... learn ethical standards in law school[,] ... speak in sympathetic ways about justice, fairness, colorblindness, and even identify bias in the system," engage in and rationalize their racialized practices? (20) As I discuss in Section I.A, Van Cleve argues that racism in the courts is accomplished through a process of acculturation that begins at the courthouse doors with sheriff's deputies enforcing racial boundaries. In Section I.B, I present Van Cleve's assessment of how this racialized culture is maintained through the aggressive policing and harsh treatment of anyone, including courtroom actors, who fails to observe its...