Our discussion of the Lauren Kirk-Coehlo matter brought up an interesting issue that has generated some considerable discussion – the idea that Ms. Kirk-Coehlo’s race and privileged background contributed to the probation sentence rather than a prison sentence.
As Kate Mellon-Anibaba put it, “What if she had been black? What if she had been Muslim and done this to a church?”
She said if Kirk-Coehlo had been Muslim and had done this to a church, “there would have been significant jail time and it would have gone differently.” She concluded, “I think she is hiding behind a privileged white mask.”
Mayor Robb Davis reiterated the point that, if it had been a person of color, “if it was a Muslim doing this to a church, I have no doubt that the outcome would have been different.
“The brokenness of our punitive system was fully on display in the way this was handled,” the mayor said. “Our criminal justice system is broken and people are afforded rights and privileges based on not just race, class…people who have few means are not afforded the same privilege as those who have more.”
While this is a controversial subject, I tend to agree with the mayor and Ms. Mellon-Anibaba – I think race does play a role in the decision to sentence the defendant to probation rather than prison. I think it works in some subtle ways, as I will explain shortly.
As I said on the air however – and it is a point that Robb Davis made as well – I don’t think the fact that a person of color would have received a prison sentence here means that we should give Ms. Kirk-Coehlo one.
As Robb Davis put it, “To me, just because our system is unjust does that mean that injustice should be extended?
Research on racial disparities in sentencing is complicated by a number of intervening variables.
For instance, research by the Quattrone Center (which we reported on this week) at the University of Pennsylvania in collaboration with the San Francisco Public Defender found that defendants of color are convicted of more serious crimes than white defendants, and that includes 60 percent more felonies and 28 percent longer sentences.
The study found that the majority of these disparities “seem to be generated by two factors that pre-date the case adjudication process”:
- People of color receive more serious charges from police at the initial booking stage; and
- People of color have pre-existing criminal histories that exacerbate their treatment for subsequent charged offenses.
Pre-existing criminal histories are a key variable because a first-time offender is going to receive far less of a punishment than a person with a lengthy criminal history.
But, as the study points out, that is not the end of story.
The study found, “Decisions made by the booking officer, and prior contact with the criminal justice system, create substantial racial disparities in how serious their case becomes after booking, as well as how little of these serious charges are reduced over the course of their case.”
Moreover, “The influence of these booking decisions is actually larger than our estimates imply, as booking decisions today become criminal history tomorrow, and a defendant’s criminal history was the second most important factor in, for example, determining time spent in custody during the adjudication process.”
However, recent research shows that these sentencing disparities exist even controlling for criminal history. A study conducted by the Sarasota Herald-Tribune shows that African American defendants get more time behind bars even when they commit the same crimes under identical circumstances.
The key here is that the Florida Legislature in the 1970s created sentencing policies that assign the defendants points “based on the seriousness of their crime, the circumstances of their arrest and whether or not they have prior convictions” which determine minimum sentencing.
As the paper points out, “The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth.”
But their study finds: “But the point system has not stopped discrimination.”
Their study finds that sentencing disparities vary by county, but the findings were consistent in that whites received less time even with the same crime and same criminal history.
Among the findings:
- Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.
- The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.
Read the study – it is pretty definitive and conclusive. Is California the same as Florida? I don’t know. It is a fair question.
Going back to the matter of Lauren Kirk-Coehlo – we can see unconscious bias play a role in the decision to grant her probation.
Kate Mellon-Anibaba continued, “She had opportunities. She grew up like me, she grew up almost three streets away from where I grew up. I grew up in Davis.” She noted that Kirk-Coehlo had a college education at a prestigious university and other good opportunities. “She had those options. I would be more sympathetic if she (were) in a backwoods kind of place getting spoon fed Fox news every day.”
Deputy DA Ryan Couzens during sentencing tried to make similar points.
Why was she granted probation?
First, as Judge Maguire pointed out, she had no real criminal history. That remains a huge factor – as the study from U-Penn shows, that may have more of a racial component than we previously thought, but that’s clearly a factor.
But we also see her privilege come into play. Her family has resources to give her counseling that would not be available in prison and might not be available to lower income defendants.
Her family background and support system plays a role in the sentencing decision.
If she were a poor black facing similar charges, with no college education and no resources for private counseling, would the judge have been so comfortable granting probation and giving her another chance?
Finally, when we run out of empirical data, there is the smell test. A Muslim with connections to ISIS or Al Qaeda, or at least expressing sympathy for them and jihad, commits a minor crime of vandalism on a church while posting social media threats to commit jihad and kill as many people as possible – is there any possibility that they don’t get prison time?
Bottom line: yes, I think the system is biased and I think Ms. Kirk-Coehlo benefits from her privileged status in society and is given the benefit of the doubt that other people in her place would not have received – and I think the empirical evidence supports that view.
—David M. Greenwald reporting