Preliminary Report on Race and Washington's Criminal Justice System

• Publication year: 2012

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 35, No. 3SPRING 2012

Preliminary Report on Race and Washington's Criminal Justice System

Research Working Group(fn*)

Task Force on Race and the Criminal Justice System(fn**)

Table of Contents

Message from the Task Force Co-Chairs ............................................... 626

Executive Summary .................................................................................... 627

Definitions ........................................................................................ 630

I. Introduction .................................................................................... 632

II. Racial Disproportionality Within Washington State's Criminal Justice System ................................................................. 639

III. Proffered Causes for Racial Disproportionality .................... 641

A. Crime Commission Rates ............................................................. 641

B. Structural Racism: Facially Neutral Policies with Racially Disparate Effects ......................................................................... 644

1. Racial Disparity in Juvenile Justice ....................................... 645

2. Prosecutorial Decision-Making ............................................. 647

3. Confinement Sentencing Outcomes ...................................... 648

4. Variability and Ethnic Disparity in the Assessment of "Legal Financial Obligations" in Washington State Courts .................................................................................... 648

5. Racial and Ethnic Disparity in Pretrial Release Decisions in Washington State Courts ................................... 650

6. Racial Disparity in Drug Law Enforcement .......................... 651

7. Drug-Related Asset Forfeiture Distorts Law Enforcement Priorities in Washington State .......................... 653

8. Racial Disparity in Traffic Enforcement ................................ 656

9. Racial Disparity in Driving While License Suspended (DWLS) Cases ....................................................................... 658

10.Summary ................................................................................ 661

C.Bias ................................................................................................. 661

1. Explicit Bias as Reflected in Survey Data ............................. 662

2. Implicit Bias Distorts Decisions Throughout the Criminal Justice System ........................................................ 663

a. Overview on Implicit Bias .............................................. 663

b. Implicit Biases Are Pervasive ......................................... 664

c. Implicit Bias Research on Race and Crime .................... 665

d. Criminal Investigations and Arrests Are Influenced by the Race of Potential/Actual Suspects, and Often Are Based on a Faulty Application of Majoritarian Cultural Norms .......................................... 666

e. Determinations of Guilt and Sentencing Likely Are Influenced by the Race of Defendants, in Conjunction with Other Extra-Legal Factors .................. 667

f. Cross-Racial Eyewitness Identification Is Substantially Less Accurate, and Cross-Racial Lineup Construction Is Less Fair .................................... 668

3. Bias and Outcomes .................................................................. 669

IV. Conclusion ............................................................................................. 670

Message from the Task Force Co-Chairs

We are pleased to present the Preliminary Report on Race and Washington's Criminal Justice System, authored by the Research Working Group of the Task Force on Race and the Criminal Justice System. The Research Working Group's mandate was to investigate dispropor-tionalities in the criminal justice system and, where disproportionalities existed, to investigate possible causes. This fact-based inquiry was designed to serve as a basis for making recommendations for changes to promote fairness, reduce disparity, ensure legitimate public safety objectives, and instill public confidence in our criminal justice system.

The Task Force came into being after a group of us met to discuss remarks on race and crime reportedly made by two sitting justices on the Washington State Supreme Court. This first meeting was attended by representatives from the Washington State Bar Association, the Washington State Access to Justice Board, the commissions on Minority and Justice and Gender and Justice, all three Washington law schools, leaders from nearly all of the state's specialty bar associations, and other leaders from the community and the bar.

We agreed that we shared a commitment to ensure fairness in the criminal justice system. We developed working groups, including the Research Working Group, whose Preliminary Report finds that race and racial bias affect outcomes in the criminal justice system and matter in ways that are not fair, that do not advance legitimate public safety objectives, and that undermine public confidence in our criminal justice system. All of our working groups-Oversight, Community Engagement, Research, Recommendations/Implementation, and Education-are coordinating together to develop solutions. We are fortunate to have the formal participation of a broad range of organizations and institutions, with each week bringing new participants. We also have many people contributing in an individual capacity, including many judges.

We have come together to offer our time, our energy, our expertise, and our dedication to achieve fairness in our criminal justice system.

Sincerely,

Justice Steven C. Gonzalez,

Past Chair, Washington State Access to Justice Board

Professor Robert S. Chang,

Director, Fred T. Korematsu Center for Law and Equality

Co-Chairs, Task Force on Race and the Criminal Justice System

Executive Summary

In 1980, of all states, Washington had the highest rate of disproportionate minority representation in its prisons.(fn1) Today, minority racial and ethnic groups remain disproportionately represented in Washington State's court, prison, and jail populations, relative to their share of the state's general population.(fn2) The fact of racial and ethnic disproportionality in our criminal justice system is indisputable.

Our research focused on trying to answer why these disproportion-alities exist. We examined differential commission rates, facially neutral policies with disparate impacts, and bias as possible contributing causes.

We found that the assertion attributed to then Justice Sanders of the Supreme Court of Washington that "African-Americans are overrepre-sented in the prison population because they commit a disproportionate number of crimes,"(fn3) is a gross oversimplification. Studies of particular Washington State criminal justice practices and institutions find that race and ethnicity influence criminal justice outcomes over and above commission rates.(fn4) Moreover, global assertions about differential crime commission rates are difficult to substantiate. Most crime victims do not report crimes and most criminal offenders are never arrested.(fn5) We never truly know exact commission rates.(fn6) Even if arrest rates are used as a proxy for underlying commission rates, 2009 data show that 45% of Washington's imprisonment disproportionality cannot be accounted for by disproportionality at arrest.(fn7)

We reviewed research that focused on particular areas of Washington's criminal justice system and conclude that much of the dispropor-tionality is explained by facially neutral policies that have racially disparate effects. For the areas, agencies, and time periods that were studied, the following disparities were found:* Youth of color in the juvenile justice system face harsher sentencing outcomes than similarly situated white youth, as well as disparate treatment by probation officers.(fn8)* Defendants of color were significantly less likely than similarly situated white defendants to receive sentences that fell below the standard range.(fn9)* Among felony drug offenders, black defendants were 62% more likely to be sentenced to prison than similarly situated white defendants.(fn10)* With regard to legal financial obligations,(fn11) similarly situated Latino defendants receive significantly greater legal financial obligations than their white counterparts.(fn12)* Disparate treatment exists in the context of pretrial release decisions, which systematically disfavors minority defendants.(fn13)* In Seattle, the black arrest rate for delivery of a drug other than marijuana is twenty-one times higher than the white arrest rate for that offense, one of the highest levels of disparity found across the country.(fn14) Research suggests that this disparity does not primarily reflect different levels of involvement with illicit drugs.(fn15)* Minority drivers are more likely to be searched by the Washington State Patrol than white motorists, although the rate at which searches result in seizures is highest for whites.(fn16)

In all of these areas, facially neutral policies result in disparate treatment of minorities over time.

Implicit and explicit racial bias also contributes to this dispropor-tionality by influencing decision-making within the criminal justice sys-tem.(fn17)...