August 2020 Bar Bulletin
By Lisa Daugaard
On Systemic Racial Bias
“Accused Kidnapper, Pimp Goes Free as Prosecutors Fume”, blared the January 2, 2013 Seattle Times headline. Judge Theresa Doyle “freed Stevens without requiring that he even post bond,” the article read.1
What actually happened was that the police report, though artfully written by the detective, did not establish the probable cause constitutionally required to detain Mr. Stevens. The victim had not identified him as the perpetrator. So, Judge Doyle, presiding over King County Superior Court’s arraignment calendar, did her job, followed the law, and released him. The prosecutor’s deputy chief of staff told the Seattle Times that the office had “serious concerns” about Judge Doyle’s decision.
The detective in the case responded to the release order by obtaining a shaky identification after showing the victim a single photograph, which is termed, appropriately, a “show-up.”2 Several days later, a paralegal discovered that it was a different “Randy Stevens” who was the perpetrator. They had the wrong guy.
Prosecutors then sheepishly moved to dismiss all charges, but only after Mr. Stevens had already spent a week in jail. The detective was disciplined for the impermissibly suggestive “show-up” identification, and police procedures for conducting eyewitness identifications were changed. King County was sued and Mr. Stevens received a substantial settlement.3
Fast forward to February, 2020: that same detective was fired from the Seattle Police Department for his record of using racial slurs, as well as making sexist and anti-LGBTQ remarks. Seattle’s Office of Police Accountability (OPA) found that his bias was pervasive and affected his ability to do his job.4
“I wondered at the time whether racial bias had played a part in those arrest and charging decisions,” reflected Judge Doyle. “The Mr. Stevens before the court was black, had a prior conviction, and was wearing a head scarf and a scowl in his booking photo. He fit white America’s racist stereotype of the violent black man.”
As Bryan Stevenson, founder of the Equal Justice Initiative and author, has aptly said:
“People of color in the United States, particularly young black men, are often assumed to be guilty and dangerous…. As a consequence of this country’s failure to effectively address its legacy of racial inequality, this presumption of guilt and the history that created it have significantly shaped every institution in American society, especially our criminal justice system.”
Judge Doyle retires from King County Superior Court at the end of 2020, after 22 years as a trial judge. Her career has been marked by courage as illustrated in the Stevens case, and leadership in racial justice and criminal justice reform.
Addressing Racial Bias
The recent police killing of George Floyd killing lays bare the ugly reality of police violence against people of color and the endemic racism in the criminal justice system. The Washington Supreme Court, in a recent open letter issued in the wake of Mr. Floyd’s death, stated that judges have a “moral imperative” to end systemic racial injustice, particularly the overrepresentation of black people in every stage of criminal proceedings, a legacy of slavery and Jim Crow. “As judges, we must recognize the role we have played in devaluing black lives”, the justices stated, and recommend that judges “develop a greater awareness of our own conscious and unconscious biases” in order to provide true equal justice for all.5
Judge Doyle has long been involved in racial bias education of judges through the Washington Minority and Justice Commission (MJC) and of attorneys, and has written articles on racial bias for this publication.6
Studies and tests, such as the Implicit Association Test (IAT), reveal that most people, even those of color, harbor an unconscious pro-white bias.
Judges have racial bias to the same degree as the rest of the population.7 Recommended countermeasures, according to experts such as Professor Jerry Kang of UCLA Law School, include developing self-awareness of one’s own implicit bias through training and tests such as the IAT, slowing down decision-making so as to avoid snap judgments, and increasing accountability by data collection of judicial decisions.8 Such scrutiny of our own, individual implicit racial biases is the “micro” approach.
Judge Doyle has been instrumental in educating jurors about implicit bias, and encouraging counsel to explore racial bias in voir dire. In 2016, she distributed to judges statewide the ground-breaking video on implicit bias developed by the federal court for the western district of Washington. Judge Doyle also helped adapt the federal video for juror orientation in King County Superior Court, and incorporated the federal court’s implicit bias jury instructions into the Washington pattern jury instructions. These instructions are now routinely given.
Jeffery Robinson, Director of the Trone Center for Justice and Equality, American Civil Liberties Union (ACLU), a key member of the federal court’s implicit bias project, has said that the instructions are important because, “It’s the court saying you can’t use race to determine if a witness is being truthful, or as a reason to convict my client.”
On: Bail Reform
Bail reform is a civil rights issue, Judge Doyle has often said.
There are more people of color incarcerated or on probation or parole in America than at beginning of Civil War. This racialization of the criminal justice system traces back to arrests of runaway slaves, the Black Codes, enforcement of Jim Crow, the war on drugs and mass incarceration.
Pretrial incarceration is the portal to that system.
People of color are disproportionally held in jail on high money bail and at a substantially higher rate than are whites with similar charges and histories.
Reform of the system starts with enforcement of existing law. Release before trial is presumed under the Washington criminal rules, absent substantial risk the accused will commit a violent crime, fail to appear in court, or interfere with the prosecution of the case. That presumption of release, however, is honored more in the breach in some state courts.
Judge Doyle tackled the problem by drafting a bench card to teach state judges the limits of judicial authority to detain people before trial. She has organized and spoken about race and pretrial reform at trainings for judges and the bar, served on state and local pretrial reform task forces, and has written articles for this publication about the need for change.9
Studies show that in addition to loss of jobs, housing, and child custody, pretrial incarceration, even for a few days, tends to lead to greater future recidivism. “So, by jailing people unnecessarily before trial, we are actually increasing the risk of future crime, in addition to other harms,” said Judge Doyle.
Judges on the pretrial calendar, of course, fear that the accused will commit a violent crime while on pretrial release, the “front page” worry. Data, however, shows that fear is exaggerated. Only an average of eight percent of persons charged with a violent crime who have a violent prior offense on their record, are arrested for a new violent offense during the period that the case is pending. That means that the likelihood is 92 percent that the released person will NOT commit a new violent offense. Is that low risk worth all the likely personal harms the jailed person will suffer and likely increase in racial disproportionality in the system, Judge Doyle asks. “The plight of defendants unnecessarily detained never appears on the front page,” she observes.
Are risk assessments helpful in assessing risk and reducing judicial implicit racial bias in pretrial decisions? Many thoughtful analysts note that, properly understood, risk assessment tells us that everyone is statistically a low risk to reoffend. Also, risk assessments rely heavily on the person’s criminal history. That history reflects past racially-biased decisions of police, prosecutors, judges and probation officers. “Think about what a black person’s criminal history and risk assessment score would look like in the era of the Black Codes, or in Ferguson, or during the time when, locally, drug enforcement was 21 times more likely to intercept black people than white people involved in drug activity,” asks Judge Doyle. Use of risk assessment necessarily incorporates past racism, and its use would add to structural racism.
The Role of the Judiciary in Racial Justice
Judge Doyle is an active member of the Minority and Justice Commission, whose mission is to reduce racial, ethnic and cultural bias in the courts. Justice Mary Yu, co-chair of MJC, says of Judge Doyle:
“I cannot begin to say enough about Judge Doyle and her work for racial and social justice. She has been an active member of the Minority and Justice Commission for a number of years and she has been pivotal to our work on matters related to pre-trial justice, juvenile justice, sentencing, and LFO reform. Theresa had the courage and persistence to speak up on difficult topics when others were uncertain or afraid, and frankly her courage in turn often gave me the courage to keep moving forward. She always had an extraordinary way of seeing issues related to racial justice with moral clarity and as we all know, the world finally caught up.”
The lived experience of people of color has caused multi-generational lack of trust and confidence in the courts.10 Recent polls show that even 2/3 of whites agree that blacks are treated less fairly than whites by the criminal legal system.
This negative perception of the fairness of the justice system poses a challenge for judges, said Judge Doyle. The Code of Judicial Conduct mandates that judges promote public confidence in the judiciary and equal access to justice for all, free from bias and prejudice.
“The discussion about the role of judges in racial justice has recently undergone a sea change,” notes Judge Doyle. “Just a few years ago we were discussing whether putting up a Black Lives Matter yard sign would violate the judicial canons; basically, whether it was a human rights message or a political message. Now we have the entire Washington Supreme Court acknowledging the complicity of the courts in devaluing black lives, and committing to reverse that,” said Judge Doyle.
A useful step in the quest for racial justice would be for judges to examine the likely effects of our decisions in court on communities of color, suggested Judge Doyle. This was the approach of United States Supreme Court Justice Sonia Sotomayor in her dissent in Utah v. Strieff11, observes Judge Doyle. In Strieff, the Supreme Court upheld the admission of the fruits of an unconstitutional stop and search because the person detained had an outstanding traffic warrant. Dissenting, Justice Sotomayor stressed the disproportionate effect on communities of color when police authority is expanded and the protections of the Fourth Amendment are narrowed:12 “[I]t is no secret that people of color are disproportionately victims of this type of scrutiny.”13
Lisa is a 2019 MacArthur award recipient for her criminal justice reform work. In 2011 she helped create LEAD, a program that diverts offenders away from the criminal justice system and into services. Because of its measurable success, LEAD is being replicated in jurisdictions across the nation.
Lisa organized the defense of the WTO protesters in 1999, and started the Racial Disparity Project in 2001. In 2013 she co-chaired Seattle’s Community Police Commission. Lisa is the executive director of the Public Defender Association.
6 “Jury Diversity and Implicit Bias: Tilting the Scales Toward Racial Justice”, in two parts, November and December 2016. https://www.kcba.org/kcba/newsevents/barbulletin/BView.aspx?Month=11&Year=2016&AID=article3.htm; https://www.kcba.org/kcba/newsevents/barbulletin/BView.aspx?Month=12&Year=2016&AID=article11.htm
7 Rachlinski, Jeffrey J., et al., “Does Unconscious Racial Bias Affect Trial Judges?” (2009), Cornell Law Faculty Publications 786, https://www.uclalawreview.org/pdf/59-5-1.pdf
8 Kang, Jerry, et al., “Implicit Bias in the Courtroom”, 59 UCLA L.Rev. 1124, 1180 (2012), https://www.uclalawreview.org/pdf/59-5-1.pdf
9 “Fixing the Money Bail System”, King County Bar Bulletin, April 2016, https://www.kcba.org/kcba/newsevents/barbulletin/BView.aspx?
10 “Justice in Washington State Survey”, commissioned by Washington Minority and Justice Commission,http://www.courts.wa.gov/subsite/mjc/docs/JusticeInWashingtonReport_2014.pdf
11 136 S.Ct. 2056 (2016).
12 136 S.Ct at 2071-72.
13 136 S.Ct. at 2070.