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October 22, 2010

Discussion of race and criminal justice disparities by state Justices stirring debate in Washington

Thanks to How Appealing (where there are lots of interesting criminal justice stories covered this morning), I saw this interesting article from The Seattle Timesheadlined "Two state Supreme Court justices stun some listeners with race comments." Here are excerpts:

State Supreme Court justices Richard Sanders and James Johnson stunned some participants at a recent court meeting when they said African Americans are overrepresented in the prison population because they commit a disproportionate number of crimes. Both justices disputed the view held by some that racial discrimination plays a significant role in the disparity.

Johnson also used the term "poverty pimp," an apparent reference to people who purportedly exploit the poor in the legal system, say those who attended the meeting. Sanders later confirmed his remarks about imprisoned African Americans, saying "certain minority groups" are "disproportionally represented in prison because they have a crime problem."

"That's right," he told The Seattle Times this week. "I think that's obvious." Johnson did not respond to several messages left Wednesday and Thursday with three staffers in Olympia. He also did not respond to messages left Thursday at his home and with Sanders. Johnson's staff said he was with the court in Spokane to hear cases at the Gonzaga University law school.

African Americans represent about 4 percent of Washington's population but nearly 20 percent of the state prison population.  Similar disparities nationwide have been attributed by some researchers to sentencing practices, inadequate legal representation, drug-enforcement policies and criminal-enforcement procedures that unfairly affect African Americans.

Some who attended the meeting say they were offended by the justices' remarks, saying the comments showed a lack of knowledge and sensitivity.  Kitsap County District Court Judge James Riehl, who attended the meeting, said he was "stunned" because, as a trial judge for 28 years, he was "acutely aware" of barriers to equal treatment in the legal system....

Justice Debra Stephens said she heard Sanders and Johnson make the comments, including Johnson using the words "you all" or "you people" when he stated that African Americans commit crimes in their own communities. Stephens said she was surprised by the "poverty pimp" remark.  "If that were directed at me, I would have felt accused," Stephens said, adding that she doesn't believe that was Johnson's intent, but instead that he chose an unfortunate phrase.

Justice Susan Owens said she heard the comments but didn't understand what Johnson meant by "poverty pimp," though she added that she didn't believe he was directing the term at anyone in particular.

Chief Justice Barbara Madsen said she recalled that Sanders disagreed with the premise that anyone was in prison because of race and asked for a name of someone there because of race.  She also recalled Johnson said something about African Americans committing crimes in their own communities, but that she only heard later that he used the term "poverty pimp."...  Johnson is widely considered to be the court's most conservative justice.

Bondon, the AOC manager, in a written statement to The Seattle Times, said she was stunned by Sanders' remarks.  "I know that people in all walks of life hold biases, but it was stunning to hear a Justice of the Supreme Court make these outrageous comments in my presence," Bondon wrote.

Bondon said she took the "comments personally, as though he were saying that I and all African Americans had a predisposition for criminality and I was offended."  Bondon said she remembered thinking that she didn't need data or statistics to prove that she and other African Americans don't have a predisposition for criminality.

"Just the idea that it was necessary to disprove the assertion was sickening," Bondon said. Johnson's pimp comment inferred that "poor people have no right to legal representation. Where's the justice in that?" Bondon wrote.

Sanders, in an interview, said he has a reputation for standing up for those accused of crimes but that he hasn't seen evidence that African Americans are disproportionately imprisoned because of race. He said his concern was for "individuals," and that if someone is in prison for any reason other than committing the crime, "I want to hear about it." But statistics aren't proof, he said.

October 22, 2010 at 10:58 AM | Permalink


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The word inferred in the penultimate paragraph made me cringe.

Posted by: dm | Oct 22, 2010 12:08:55 PM

According to statistics from New York City, blacks commit about 68 percent of all violent crimes in the city but represent no more than 24 percent of the city's population. This is not an anomaly, national statistics support the reality that high incarceration rates for blacks are a function of crime, not a bigoted legal system.

Posted by: mjs | Oct 22, 2010 1:23:36 PM

Stating that one group has a disproportionately high crime rate does not state or imply that genetic predisposition is the reason. The higher rate is an undeniable demographic reality. The cause of the higher rate is different and more difficult question.

Eric Holder wants us to have frank discussions about race and crime. The first requirement for frank discussion is to stop the hair-trigger accusations of racism when people do speak frankly.

The justices are lucky they don't work for NPR, although Sanders may yet be fired.

Posted by: Kent Scheidegger | Oct 22, 2010 1:28:16 PM

A police officer has to have probable cause when they arrest and book a subject. Racial disparities already exist at the time of booking well before a judge, prosecutor or defense attorney become involved. One would expect that the largest racial disparities would be for simple misdemeanors where a racist arresting officer would have nearly full discretion and the least for felonies where they would have little of no discretion. In my county the results are the opposite the largest racial disparities are for felonies and they are nearly absent for most simple misdemeanors.

It is possible that the initial racial disparity can be aggravated at subsequent case processing stages. But except for plea bargaining most case processing stages are open to public oversight and I have not seen anything in my county that would lead me to suspect racially motivated aggravation of a disparity.

The judges and others in the criminal justice system are well aware of this and they attribute the racial disparity to the behavior leading up to and at the time of the offense. It appears that the choice between explaining the cause of racial disparities as either behavior or racism depends on your ideology.

Posted by: John Neff | Oct 22, 2010 2:04:39 PM

Here are some other groups "disproportionately" represented in the population convicted of violent crime: males, young adults, and drug abusers.

Commenters can decide for themselves whether any of that reflects sexism or "agism," as opposed to behavior.

Posted by: Bill Otis | Oct 22, 2010 2:31:11 PM

The racial disparities are the same in the scientifically validated crime victim survey. The disparities are real in the population rates.

Posted by: Supremacy Claus | Oct 22, 2010 3:29:20 PM

Well Bill I hope most people would say "hogwash" if someone were to say that an 55 year old female has the same chance of being accused of a violent crime as a 17 year old male.

Posted by: John Neff | Oct 22, 2010 4:55:23 PM

John Neff --

I certainly hope they'd say "hogwash," since anyone not living in a cave knows that 17 year-old males undertake vastly more violent crime than 55 year-old females. The fact remains, of course, that 17 year-old males are much more frequently "being accused" of such crimes -- to use your phrase -- BECAUSE THEY MUCH MORE FREQUENTLY COMMIT THEM. The accusations stem from their behavior, not their identity.

Posted by: Bill Otis | Oct 22, 2010 5:50:54 PM

One may not tell the truth if it threatens lawyer jobs, even if belonging to the hierarchy, such as being a justice of the supreme court.

The lawyer destroyed the black family, after its surviving slavery, wars, discrimination, genocide.

The lawyer deterred the police from arresting and stopping the black criminal with ruinous litigation.

The lawyer now will not allow even verbal criticism of the Southern Trash culture to which most American South Americans subscribe. Far darker immigrants from Africa and the Carribean are exceeding the performance of whites, and have lower crime rates than them. It is not the darkness of the skin. It is the trashiness of the low life, full time Roman orgy lifestyle upbringing.

I would like to see the families of the victims of black crime hunt down these lawyer rent seeking traitors, and bring them street justice. It is virtually immunized anyway. There is a low probability they will be prosecuted. If prosecuted, there is a very low probability they will be held accountable for their violent crimes.

Posted by: Supremacy Claus | Oct 22, 2010 9:53:01 PM

One consideration in deciding to use a bail bondsman is collateral, which may or

may not be required. For the most part, it’s up to the bondsman if collateral is

required for the bond. While not always the case, most bondsmen will require

collateral equaling and sometimes exceeding the amount of the bond.

bail bonds

Posted by: bailbondsman | Oct 23, 2010 12:58:54 AM

***The justices said African Americans are overrepresented because they commit a disproportionate amount of crime.***

Why is this such a controversial statement? Similarly, East Asians are underrepresented (even controlling for poverty) because they commit less crime. This is just common sense.

If you need a reference look up Chapter 7 of Biosocial Criminology: New Directions in Theory and Research by Walsh & Beaver 2008.
Originally Posted by ocoonassa View Post
If you put me to the bother of it I should be able to come up with plenty of data to show that there is a correlation between poverty and crime and that this correlation is further exacerbated by a high gini coefficient. At the moment all I can easily see to convince is this meta analysis of the data regarding violent crime. This policy document from the CPA takes the link as a given.?
Adjusting for poverty populations still differ in crime rates. For instance East Asians and Jewish populations have consistently low crime rates, even when living in poverty.

The reality of group differences in average crime rates is discussed in chapter 7 of Biosocial Criminology: New Directions in Theory and Research by Walsh & Beaver 2008. As is noted on page 151, evolution provides a powerful mechanism to understand differences in the distribution of behaviour and traits within and across ethnic groups. For instance, testosterone & MAO-A variants vary across groups.

Stop hiding from facts and deal with reality.

Posted by: Chen | Oct 23, 2010 1:21:55 AM

Sorry, here is the link to the book mentioned above:

Biosocial criminology: new directions in theory and research

Posted by: Chen | Oct 23, 2010 2:11:43 AM

according to Sen J Webb
"African-Americans are about 12% of our population; contrary to a lot of thought and rhetoric, their drug use rate in terms of frequent drug use rate is about the same as all other elements of our society, about 14%. But they end up being 37% of those arrested on drug charges, 59% of those convicted, and 74% of those sentenced to prison"

Posted by: claudio giusti, italia | Oct 23, 2010 4:12:29 AM

CGI has it right. Drug war cases are where the disparate enforcement lies. Black folks do, in aggregate, commit more violent crimes and are more often victims of violent crime. However, all available evidence says drug use levels among the races are roughly equal, and by far enforcement is over-concentrated in poor black neighborhoods.

Also, those who argue that blacks are overrepresented because they commit more crimes must acknowledge that illegal immigrants commit FAR fewer crimes than US citizens and all the demagoguery about the threat the pose to public safety isn't supported by the facts. So there are uncomfortable data cutting a couple of ways on this, not all of it in favor of ideologically "conservative" assumptions.

Posted by: Gritsforbreakfast | Oct 23, 2010 8:02:40 AM


Senator Webb was quoting others who believe that the racial disparity is caused by racially biased drug laws. However African-Americans are also more likely to be arrested, convicted, sentenced to prison and released on expiration of sentence (rather than paroled) for violent crimes. The results depend on the particular state prison system but a substantial fraction of the racial disparity is unrelated to drug crimes.

Posted by: John Neff | Oct 23, 2010 8:34:47 AM

Grits is correct in addition to behavior, gender, age and race/ethnicity the probability of arrest depends on where you live and what kind of car you are driving. Older cars are more likely to have an equipment violation that the officer can use as a pretext for making a stop.

Posted by: John Neff | Oct 23, 2010 9:26:48 AM

The left has to explain the experience of very dark skinned African and Caribbean immigrants. If race were the factor rather than criminality, encouraged and immunized by the lawyer, they should be worst off. They certainly are not.

The toxic effect of the lawyer is shown by their catching up to local crime rates by the third generation.

Posted by: Supremacy Claus | Oct 23, 2010 9:36:20 AM

John Neff -- "...except for plea bargaining most case processing stages are open to public oversight and I have not seen anything in my county that would lead me to suspect racially motivated aggravation of a disparity."

That's not saying much if you consider that about 96 percent of federal cases and 75 percent of state cases are resolved in plea bargains.

JN -- "A police officer has to have probable cause when they arrest and book a subject."

Technically true but astonishingly credulous. For some cops, disproportionately high black crime rates may be all the PC they need to target and arrest some suspects. For cops who see things that way, coming up with details of PC stories for prosecutors and judges is simply a matter of imagination and will.

Never mind that sometimes prosecutors and judges appear to function more as team members with the police than gatekeepers of justice.

Posted by: John K | Oct 23, 2010 10:06:34 AM

I'll just put up the most recent figures from the US Sentencing Commission and say only a few things after that. One should bear in mind that federal jurisdiction is peculiar, in that drug and immigration offenses outpace everything else. The immigration numbers -- which for obvious reasons vastly overrepresent Hispanics -- skew the sample, but otherwise you have to think that the federal figures, in terms of percentages (although not absolute numbers), are going to roughly approximate the aggregate state experience.

The Sentencing Commission's figures for overall convictions for fiscal 2009 are here, http://www.ussc.gov/ANNRPT/2009/Table04.pdf. They show that blacks represent about 22% of those convicted in federal court. Because of the immigration cases, Hispanics are vastly overrepresented, constituting about 45% of federal convictions in fiscal 2009. Whites were about 29%.

Drug cases in particular will have less of a skew because (obviously) immigration is not directly factored in. Here are the Sentencing Commission data for fiscal 2009 for drug convictions: http://www.ussc.gov/ANNRPT/2009/Table34.pdf. In sum, whites were 26% of the convictions and blacks were 31%. This is a clear overrepresentation of blacks (as compared to their proportion of the general population), but only half of the figure claudio says Webb provides (59%). In addition, a goodly portion of the overrepresentation is accounted for by a single drug, crack cocaine. Blacks accounted for almost 80% of federal crack convictions in fiscal 2009. But the figure that most struck me was that blacks are UNDERREPRESENTED for the most dangerous drug out there (meth) (only 3% of federal meth convictions), and for the most commonly abused drug by far, marijuana (only about 9% of federal pot convictions).

Here's the skinny: Meth is a biker drug, common among white and Hispanic gangs, but very seldom seen among blacks. Crack is a black drug. Why different demographic groups prefer different drugs is unknown to me, but I don't make the world and I don't make up the figures that reflect it.

If Prof. Neff intends to imply that those operating in federal jurisdiction arrest and prosecute defendants because of race, gender, etc., instead of behavior, he is incorrect. I don't know how much time Prof. Neff spent litigating in federal court. I spent about 20 years. There was not a single case in which we prosecuted a defendant for reasons other than his behavior, and of course EVERY defendant was free to challenge the indictment prior to trial on grounds of racially selective prosecution.

Such challenges were almost never brought, however, because even in the exotic world of defense lawyering, where everything and the kitchen sink is grounds for a motion, counsel knew that no such thing had happened.

There was one case, however, in which racially selective prosecution was alleged. The district judge, a black man named Ray Jackson (and a good guy so far as I ever had any reason to believe) granted the motion, noting that all 25 of the persons we had chosen to indict were black (which was true).

You may see for yourself what became of Judge Jackson's ruling on appeal, United States v. Olvis, 97 F.3d 739 (4th Cir. 1996), available here, http://openjurist.org/97/f3d/739/united-states-v-l-olvis-d.

Finally, I have no clue as to where claudio, or Webb (if claudio is representing Webb's statement correctly) get the idea that 74% of those in prison for drug offenses are black. I would love to see any reliable and authoritative source for that. Given that blacks are underrepresented for what is by far the most commonly abused drug, I have severe doubts, but I'll wait for the sourcing to appear.

Overall, the figures for incarcertaion in the USA are: 35.4% black male, 32.9% white male, and 17.9% Hispanic male, http://abcnews.go.com/TheLaw/story?id=5009270&page=1, citing BJS figures.

This overrepresents blacks as against the GENERAL POPULATION, but it's in line with the black portion of the POPULATION COMMITTING CRIMES, which is the only relevant comparison.

Posted by: Bill Otis | Oct 23, 2010 11:35:42 AM

John K --

Motions to dismiss for racially selective prosecution are brought BEFORE the plea bargain is ever reached, so the fact that most cases are bargained does not, contrary to what you imply, mean that alleged race-based prosecution decisions cannot be challenged.

In addition, the hearings on such motions are as open and public as trials.

Tell me you didn't know this.

Posted by: Bill Otis | Oct 23, 2010 11:50:21 AM

I am not a lawyer I am a member of several advisory committees on community based corrections, jail advisory and disproportionate juvenile contact (arrests).

In my county (Johnson County) we start at bookings with a racial disparity of six for felonies that within 24 hours is increased to eight. The disparity for those convicted and committed to prison the disparity is ten the same as the disparity for the Iowa prison system. Because 80% of the disparity is established within 24 hours I do not see how case processing can be responsible for the high disparity. The older Blacks claim that there always has been a high racial disparity in Iowa prisons and I confirmed that by collecting historical data that showed a disparity of about ten in 1950 with very little change in subsequent years. I am also very confident that Wisconsin and Illinois also had high disparities as far back as 1950.As a consequence I do not believe the war-on-drugs had much to do with the high racial disparity in Iowa.

John K. I am well aware of the fact that the police are rewarded for making arrests. In order to deal with the disproportionate Black juveniles arrest problem we had to repeat a process we used 20 years ago and then 10 years ago and now for the third time. It seems the police turnover is almost as rapid as the juvenile turnover and both had to be taught to modify their behavior.

Posted by: John Neff | Oct 23, 2010 12:53:17 PM

Johnson County is Iowa City, I believe. There is almost no crime there, and no blacks there. Those two findings are likely related. The numbers of both are so small as to be meaningless. You should repeat your study in Des Moines. And you need to prove a disconnection between the commission of crimes, their seriousness and race. Age and sex are other sources of disparity.

There is no evidence of any biological racial predilection towards crime. The rates of conduct disorder (antisocial personality of childhood) and of antisocial personality are the same across races. Blacks have slightly lower rates of addiction, if addiction generates criminality. The entire disparity in both crime and poverty is explained by the rates of bastardy, caused by the destruction of the black family by the lawyer, to generate social pathology and lawyer jobs. And, it is explained by the lesser protection of the black population by the criminal law and the racist lawyer hierarchy. It undervalues black victims in many studies. Black victims have definite, unearned devaluation and lesser protection, in valid study after valid study. White victims subjected to 6 fold increases would be screaming for the National Guard. Blacks oppose more police protection and continue to vote for the party of the KKK and of relentless attack on the black family, the Democrat Party. That racial disparity in self-defeating stupidity requires explanation, which I do not have.

Posted by: Supremacy Claus | Oct 23, 2010 1:24:56 PM

Bill -- "Motions to dismiss for racially selective prosecution are brought BEFORE the plea bargain is ever reached, so the fact that most cases are bargained does not, contrary to what you imply, mean that alleged race-based prosecution decisions cannot be challenged."

Has anyone bothered filing such a motion since the SC's ruling in U.S. v Armstrong?

As Mellisa Jampol (currently an AUSA with the Criminal Division in Newark) observed in her article for Journal of Criminal Law and Criminology (Vol. 87, 1997), "No defendant since Yick Wo in 1886 has been successful in proving a race-based claim of selective prosecution.(304) Thus, in practical terms, the Supreme Court's (Armstrong) opinion will not stem a tide of selective prosecution defenses. These claims were generally not succeeding prior to Armstrong. Now, with the heightened evidentiary standards enunciated by Chief Justice Rehnquist, a selective prosecution defense is even more difficult to prove. The legacy of the Armstrong decision will be an increased hostility to the use of statistical evidence to prove discrimination, and the "crippling burden of proof"(305) placed on defendants that insures that prosecutors will continue to be "largely immune from constitutional scrutiny."

Jampol also added this:

"...Armstrong imposes a barrier that is too high for almost any defendant alleging selective prosecution to obtain discovery, thus making the already difficult claim of race-based selective prosecution virtually impossible to prove."

Tell me you didn't know this, Bill.

Posted by: John K | Oct 23, 2010 2:56:27 PM

John K --

News flash: One might consider proving an allegation that the prosecution in case X was race-based by adducing -- now hold onto your hat -- evidence that there was racial bias IN CASE X.


And what barrier does Armstrong pose to producing such proof?


In the Olvis case I mentioned earlier in this thread, I wrote to the defense lawyer, asking him to name which of my colleagues had considered race in drawing up the indictment, or in any other aspect of the prosecution, and I would see to it that an investigation was launched, since our Office would tolerate no such thing.

That was in 1996. I'm still waiting for his answer.

Posted by: Bill Otis | Oct 23, 2010 4:01:20 PM

Kent Scheidegger: "The justices are lucky they don't work for NPR, although Sanders may yet be fired."

The government has been in the airwaves business ever since Dragnet, when the LAPD could review the scripts and disapprove them. Indeed, Gene Roddenberry, Chief Parker's go to man in the public relations bureau, wrote some of the Dragnet scripts for $25 dollars.

Today the authorities have final say in Cops, Behind Bars and other "free speech" programs.

Posted by: George | Oct 23, 2010 4:08:35 PM

I am none of the above.
I was previousley a student and hard working single mother before I was laid off, but now I am charged as a criminal. I am a 30 yr old white female. Many on this site are incredibly stupid or just quite nieve. Race has a tremendous impact on sentencing of a crime. For instance 5 grams of crack cocaine is equal to 500 grams of powder cocaine? Why,It's all cocaine? I will tell you why. The significant different in amounts is racial based, cocaine is a white mans drug and crack is a black mans drug. Therefore, a white man distributing large amounts of cocaine, will recieve the same amount of time if not less than a black man that is simply street hustling a small amount to get by! If you put a white and a black in the same court with the same charge and same criminal history, the black will recieve a far more severe punishment. Myself and many others are evidence of that. I was charged with delivering and possessing a controlled substance in the same court as a black man who was only chared with possessing the controlled substance. I recieved comunity supervision with time served and the fellow black recieved 24 months in a state prison. Why you ask? Simply because his race was black. This is been happening for decades and if people like you would stop your dening and pushing it under a rug like it doesn't exist, and start blogging about the real issue at hand. Then possibley something could be done with the racist judges, prosecutors ect.

Posted by: andrea | Nov 18, 2010 2:04:42 AM

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