Jim Crow in today’s courts

TWO WASHINGTON state Supreme Court justices put their racist assumptions on full display at a recent court meeting. Justices Richard Sanders and James Johnson shocked many in attendance by stating that minorities are overrepresented in the state's prison population not because of discrimination, but simply because they commit more crimes.

According to accounts of those present at the meeting, Johnson repeatedly used the phrases "you all" or "you people" when he talked about African Americans and crimes. He also used the term "poverty pimp" to refer to workers who supposedly provide legal assistance to the poor for their own gain.

Sanders later reaffirmed his beliefs, telling the Seattle Times that "certain minority groups" are "disproportionally represented in prison because they have a crime problem...I think that's obvious."

The only thing that is "obvious" is the terrifying ignorance and racism coming straight from mouths of the highest court in the state. That this belief, whether openly stated or acted on unconsciously, is widespread at all levels of the criminal justice system is enough to make your blood run cold.

It shouldn't be necessary to even dignify this unsubstantiated claim with a rebuttal, but here are a few salient facts that people should keep in mind and remind these "justices" of.

THERE IS no doubt that minorities are vastly overrepresented in Washington state's prison population, as they are across the country. Collectively, although African Americans, Latinos and Native Americans constitute only 12 percent of Washington state's overall population, they are an incredible 36 percent of the state's prison population. African Americans in particular are represented in state prisons at over six times their proportion in the population at large.

These facts are indisputable. The question is why? If the esteemed "justices" wish to argue, in the 21st century, that minorities are simply genetically predisposed to commit more crimes, then there isn't much more to say, except to ask if eugenicists should be serving on the state's Supreme Court.

A more socially acceptable take on this argument in modern times is the "culture of poverty" thesis, which argues that there is something amiss in the cultural life of minority communities that leads to higher crime rates. Falling into this camp are conservatives who argue that this culture is somehow inevitable and fixed for all time (i.e., eugenicists in disguise).

But there are also liberals who argue that higher crime rates may have more to do with entirely changeable social conditions, such as segregated neighborhoods with high rates of unemployment and poverty, dilapidated schools and so on.

While there is certainly some truth in this, it still suggests that minorities do, in fact, commit more crime than white people, and therefore the origins of racial disparities lie beyond the realm of the criminal justice system. Yet there is a damning array of evidence to the contrary.

Higher arrest rates do not mean that a group is committing more actual crime. Nowhere is this more true than when it comes to the drug war. A recent report from the Marijuana Arrest Research Project for the Drug Policy Alliance and the NAACP reaffirmed that, nationally, African Americans are no more likely to use or sell drugs than caucasians, but they are vastly more likely to be arrested for it.

This couldn't be clearer here in Seattle, where marijuana arrests were officially deemed the lowest priority for local law enforcement.

Lowest priority when it comes to white people, that is. Several studies in recent years have affirmed just how out of balance enforcement has been--including a study commissioned by the city itself, which determined that Black men represented 57 percent of marijuana arrests in 2006, but only 8 percent of the population at large.

University of Washington professor Katherine Becket's research on drug arrests in Seattle sheds light on why this is the case. Her study found that the overwhelming majority of drug dealers in Seattle are white, yet the police consistently targeted locations where there were more minorities present and drugs more likely to be used by minorities.

According to her research, "Black deliverers of methamphetamines are 32 times as likely as likely to be arrested for that crime than a white person who commits that crime."

BECKETT'S WAS one of numerous studies presented earlier this year to the 9th U.S. Circuit Court of Appeals in the case Farrakhan v. Gregoire.

In this case, plaintiffs argued that Washington's felon disenfranchisement law amounted to a violation of the Voting Rights Act due to racial disparities in the state criminal justice system. Because of this, an astonishing 24 percent of African American men and 15 percent of Washington's overall Black population are denied the right to vote.

As noted in an ACLU brief on the court's decision:

Plaintiffs' evidence showed disparities with respect to searches, charging, bail, length of confinement (African Americans spend approximately half a day more for each day a white defendant is recommended to be confined to prison and are 75 percent less likely than whites to be recommended for an alternative sentence) and incarceration (African Americans are nine times more likely to be imprisoned than whites). The state's own sentencing commission found, "[p]eople of color are over-represented at every stage of Washington's criminal justice system, from arrest through sentencing and incarceration.

A three-judge panel of the 9th Circuit originally ruled in favor of the plaintiffs. Unfortunately, earlier this month, an 11-judge panel overturned this ruling. They didn't dispute the facts presented, but argued that they were not in violation of the Voting Rights Act unless intentional discrimination could be proven.

Putting the onus on proving intentional discrimination has precedent in U.S. Supreme Court rulings such as Washington vs. Davis and McKlesky vs. Kemp. As Michelle Alexander documents in her must-read book The New Jim Crow, such decisions have effectively closed the courthouse doors to challenges of racial bias, because proving racist intent is nearly impossible.

This represents a common misunderstanding in our society that racism is mostly about attitudes, rather than being institutionalized in our society. One would presumably need to provide text of a speech by a state legislator stating clearly that the law was passed in order to stop minorities from voting. But as Alexander's book makes clear, the beauty of the criminal justice system as a system of racial control is that race need not be explicitly mentioned at all.

Furthermore, stereotypes and assumptions regarding the race of criminals can lead to unconscious bias among people who would never openly or even privately believe themselves to be racist. One psychological study, for instance, asked respondents to close their eyes and picture a drug user. While the majority of drug users are white, an astounding 95 percent of respondents pictured a Black person.

Surely this unconscious bias may have had something to do with Seattle cop Ian Birk's split-second decision to fatally shoot a Native American man four times in the back for possession of a 3-inch carving knife in late August. That same week, a mentally ill man in another area of Seattle confronted police with an assault rifle, but was merely wounded in the leg. Needless to say, he was white.

In a way, these justices did us a favor by ripping the "colorblind" mask off the criminal justice system to reveal its racist core. Now is the time to organize our communities to demand real justice.