By David Greenwald
We have seen in a wide variety of areas that, where police and prosecutors exercise discretion, it leads to huge disparities between whites and people of color. We have seen it locally and nationally with police stops. We have seen it in areas like drugs, where research continues to show whites and Blacks commit offenses at comparable rates—and yet the Black arrest and incarceration rate is vastly disproportionate.
Earlier this week Miriam Krinsky of Fair and Just Prosecution and Marcy Mistrett of the Campaign for Youth Justice noted the discrepancy between filing as adults. She noted, “Research shows children break the law at the same rate, regardless of race, but from 2005 to 2018, the percentage of Black children transferred to adult court by a judge rose from 39.1% to 51.7%, while the percentage of white children dropped from 45.2% to 32.2%.”
That is striking because over that period of time crimes rates and violent crime rates for both groups fell to 40-year lows—despite this, Black children saw their percentage of cases transferred to adult court actually increase.
Moreover, Krinsky and Minstrett argued “though 60% of the broader youth population is white, 88% of children in adult jails and prisons in 2012 were youth of color.”
Again, remember, this is not due to differentials in crime as some have argued. Instead, driving this, a study by Campaign for Youth and Justice found, is implicit bias where “white people have seen children of color as older, more threatening, and in general as mini-adults rather than vulnerable children.”
Another area where this shows up is in sentencing enhancements.
Newly-elected Los Angeles County DA George Gascón has been attempting to eliminate the use of sentencing enhancements. But there has been tremendous pushback from law enforcement and some of his deputy DAs.
Enhancements add time to sentences. For example, as an LA Times Editorial this week points out, “Instead of getting the high end of the range for robbery, you’d be sentenced to an additional 10 years if you used a gun, whether or not it was loaded. Add 20 if you fired it, and life imprisonment if you caused injury with it.”
As they point out, “Of course we want to punish gun violence, but there was no need to add enhancements to a robbery charge to do that; the defendant could simply be charged with assault with a deadly weapon or a host of other base crimes that better matched the defendant’s deeds.”
And of course, if you are a gang member, you get gang enhancements which “are disproportionately charged against Black and Latino defendants, reintroducing and, in fact, exacerbating racial disparities that were supposed to be eliminated by determinate sentencing.
“Even though the crimes and the sentences were the same, the actual time served increased substantially,” they write.
In a lot of cases you are adding time for enhancements that really don’t impact the base crime. Should someone who kills with a gun really get more time than someone who kills with a knife? Someone who beats someone up should get more time if they have a gang affiliation?
One thing we saw was that DAs would charge minors with gang enhancements that were sketchy as best, but under previous laws they had the incentive to do so because then it allowed them to direct file as adults—even for very minor crimes.
All of this creates a huge disparity in sentencing between whites and people of color.
There are consequences to that.
The LA Times points out, “For many crimes, prosecutors can now choose from a nearly bottomless well of charging choices with an enormous range of possible sentences. They can use these options to dissuade a defendant — even an innocent one — from going to trial. Plead guilty and serve nine years, for example, or face 39 years in prison if convicted.”
Chesa Boudin, the San Francisco DA, was the first to eliminate a number of the status enhancements—including gang enhancements that have proven so problematic. When Gascón was elected last month, he did the same.
As the LA Times points out, “Gascón cut through this irrationality with his order to charge only the base crime and not the enhancements.”
This has triggered irrational pushback and fear.
As the Times point out, “Some news accounts implied that the result would be murderers, rapists and other dangerous criminals immediately walking free.”
They call this “bunk.”
And they are right. Murder is still murder. Rape is still rape. They argue that “the order does nothing to reduce those charges or the statutory punishments.” You commit murder, you are doing 25 to life, minimum.
The only difference: “In some cases, a convicted perpetrator might now be granted a parole hearing after serving decades in prison. That reintroduces one of the positive aspects of indeterminate sentencing: The criminal is punished and the public is protected, yet the inmate retains an incentive to participate in rehabilitation programs in the hope of gaining release many years in the future.”
Guess what—parole boards are not shy about keeping people who remain dangerous behind bars, even through countless parole hearings.
But what we need to start attacking is not only mass incarceration which puts people in prison well beyond the point where they are dangerous, but also racial disparities which show up at each step of the way.
There are differentials in some crimes for the rate of committing those crimes, but all too often, even when we control for other variables, people of color are more likely to be arrested, convicted and serve greater sentences than their white counterparts.
That perpetuates the inequality of the system and undermines our system of justice.
—David M. Greenwald reporting
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