March 2021 Bar Bulletin
By Judge Theresa Doyle (ret.)
Judges across the country are grappling with how to dismantle or at least not perpetuate systemic racism. If anything, the concern has grown since the recent white-nativist insurrection at the Capitol. Racism is endemic in the legal system because it’s integral to American history, culture and wealth distribution. The legal system mirrors these racial inequities and judges enforce and thereby legitimize the laws that keep them in place.
State supreme courts, in response to the protests against police killings of brown and Black people, have issued public proclamations taking some responsibility for the racism embedded in the system and vowing to dislodge it.
So, how can judges be “antiracist” — refuse to perpetuate the racial inequities that are part of the very fabric of the criminal justice system.1
Judges historically have been able to avoid this dilemma. Judges take an oath to uphold the law even when personally opposed to its results, and are directed by ethics rules to avoid doing anything that could raise doubt about that judge’s ability to be fair and impartial. “Political” matters were to be left to the other branches of government. Judges were to “just call balls and strikes.”
These perceived limitations allowed the bench to avoid responsibility for disproportionately incarcerating brown and Black people. The blame lay with police arrest and prosecutor charging decisions, judges reasoned; there was nothing we could do. That was the traditional paradigm, and it made judges complicit in maintaining the status quo.
That paradigm began to shift last year with the racial reckoning that followed the protests over police violence and growing public awareness of the disproportionate effects of the COVID pandemic on communities of color.
Here’s an illustration of that shift. Until fairly recently, judges were debating whether putting up a “Black Lives Matter” yard sign was a “political” act and thus an ethics violation. Now, our state Supreme Court, the ultimate arbiter of ethics violations, has proclaimed that judges have wrongly been complicit in devaluing Black lives. This year, judicial organizations at all levels of Washington courts have signed on to a racial justice initiative, vowing to combat structural racism in the legal system.2
Of course, the judicial oath and ethics code still require judges to apply the law regardless of their personal opinions. But the focus has shifted to other ethics rules that mandate fair, bias-free treatment of all litigants and the promotion of confidence in the legal system. People of color have long distrusted the legal system as unfair and racially biased. Polls show that even a majority of whites believe that courts are unfair to Black and brown people.
So how do judges combat embedded racism — in other words, be antiracist?
Judges need to become educated about racism’s foundational role in the criminal justice system. Police and the courts were the enforcement mechanisms of the infamous Black Codes and later punitive drug laws that fueled racially disproportionate mass incarceration, as explained in the New York Times 1619 Project.
Judges should also investigate their own, personal implicit racism by taking the Implicit Association Test (IAT).3 The results of the IAT show conclusively that most people, including judges, have a pro-white bias.
But merely becoming educated about historical and implicit racism will not dislodge the structural racism embedded so deeply into the system. The transformative change that’s demanded will require judges to address the effects of their legal decisions on existing racial disparities and communities of color. In other words, whether and how to take an antiracist approach.
Criminal records are a good place to start. The arrests and convictions of Black and brown people reflect past policing patterns and the racially biased decisions of police, prosecutors, judges and juries. The criminal record that results is not a fair or reliable summary of actual crimes committed.
Judges should recognize this reality and discount the criminal histories of Black and brown people accordingly, when making pretrial release and sentencing decisions. Doing so could substantially reduce racial disparities in our jails and prisons and begin to improve the reputation of the legal system in communities of color.
That runs smack into mandatory state felony sentencing laws. Washington, like most states, has statutes that use a person’s criminal record to set a fairly narrow minimum and maximum sentence range. The judge must impose a term within that range, absent compelling reasons to do otherwise. But we know that the criminal records of Black and brown defendants reflect past systemic racism and thus are distorted.
This fundamental flaw in state sentencing schemes — use of an unreliable criminal record that dictates a certain sentence range — would be a compelling reason for a more lenient sentence in appropriate cases. This is particularly so where the current or prior offense happened in a neighborhood that is overpoliced (often the downtown corridor) or is a type of offense known for disproportionate arrests (drug possession, obstructing a police officer, resisting arrest). Whether sentencing based on a criminal record tainted by past racism is a violation of equal protection or due process rights is a good question.
Risk assessments suffer from the same fatal flaw because they rely primarily on a person’s criminal record. These algorithms take a person’s criminal record and a compilation of the records of others with similar records to produce a score that purports to predict the likelihood of future crimes.
Because the criminal records of Black and brown people reflect past systemic racism, risk assessments compound the racism already infecting the system. For this reason, more than 100 civil rights organizations, most bail reform groups and many artificial intelligence (AI) organizations strongly oppose having judges using risk assessments in deciding whether to release a person before trial.
The broader solution to incarceration of so many Black and brown people is to reduce incarceration. Sociologists have been reporting for decades that caging people does not make the community safer. A criminal record brings about a lifetime struggle for employment, housing and financial security. We thus create a permanent underclass. Recidivism follows — not safer communities.
To a large degree, most crimes are crimes of poverty. Judges’ organizations should demand that legislatures replace punitive sentencing laws with diversion and other alternatives that effectively address underlying problems and acknowledge racial inequalities in the basic necessities. Prosecutors could achieve the same effect by reducing charges and recommending needed treatment and services in the community. In any event, judges should not make matters worse by imposing legal financial obligations on poor defendants that can never be paid off, have a racist impact, and add to the already devastating collateral effects of a conviction.
COVID-19 reductions in incarceration have forced us to question whether society really needs so many jail beds. Early data show that counties like San Francisco and Charleston, S.C., have reduced their jail populations and the harmful effects of pretrial incarceration without a commensurate increase in crime.
Other local governments could take a page from King County, which has declared racism as a public health crisis. This year, King County will begin to divert 60 percent of young people out of the juvenile offender system and into community treatment and services. The Restorative Community Pathways program will distribute approximately $6 million in redirected county funds to community organizations with a track record of success. King County also plans to phase out its juvenile detention facility by 2025.
Structural racism afflicts not just criminal justice, but the entire legal system. Black and brown litigants are disadvantaged in most areas of civil law, as well, from evictions to family law and parental rights and debtor-creditor. Evidence rules, applicable in both civil and criminal trials, need to be reviewed through a racial justice perspective. For example, ER 609 allows witness impeachment with criminal convictions, which we know are tainted by systemic racism.
Dislodging 400 years of embedded racism from the criminal justice system will be challenging. A shift in perspective will be required — an antiracist approach that targets racially inequitable results. Only then can the promised right to equal justice begin to become a reality.
Theresa Doyle is a former King County Superior Court judge, recently retired after 22 years on the bench.
1 Editor’s Note: The title of this article is based on the bestselling book by Ibram X. Kendi — How To Be an Antiracist. Kendi’s definition of “antiracist” is “One who is supporting an antiracist policy through their actions or expressing an antiracist idea.”
2 The Washington Race Equity & Justice Initiative (REJI) is working to coordinate and grow a sustainable statewide community of legal and justice system partners in Washington State who can more effectively and collaboratively work toward eradicating racially biased policies, practices, and systems. https://wareji.org
3 https://implicit.harvard.edu/implicit/takeatest.html