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Race and Fairness in the Criminal Justice System

This page includes links to reports, articles, and lists of references related to race and fairness in the criminal justice system, as well as information specifically addressing issues of fairness in jury selection and information about implicit bias.

Reports

Korematsu Center on Law & Equality (Seattle University School of Law)

Symposium on Racial Bias and the Criminal Justice System

This volume includes:

  • Methodological Issues in Biased Policing Research with Applications to the Washington State Patrol, by Clayton Mosher and J. Mitchell Pickeril (PDF)
  • Analyzing Stops, Citations, and Searches in Washington and Beyond, by Mario L. Barnes and Robert S. Chang (PDF)
  • Race Bias and the Importance of Consciousness for Criminal Defense Attorneys, by Andrea D. Lyon (PDF)
  • The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion, by Robert J. Smith and Justin D. Levinson (PDF)
  • If Justice Is Not Equal For All, It Is Not Justice”: Racial Bias, Prosecutorial Misconduct, and the Right to a Fair Trial in State v. Monday, by Michael Callahan (PDF)
  • “Like Wolves in Sheep’s Clothing”: Combating Racial Bias in Washington State’s Criminal Justice System, by Krista L. Nelson and Jacob J. Stender (PDF)
  • Slavery Revisited in Penal Plantation Labor, by Andrea C. Armstrong (PDF)

Administrative Office of the Courts

NACDL

National Center for State Courts

The Sentencing Project

Other States

Juries: Fair and Impartial?

Jury Diversity: Policy, legislative and legal arguments to address the lack of diversity in juries

This article, by Hong Tran, from the August 2013 issue of Washington Criminal Defense, discusses the importance of jury diversity, reasons minorities are underrepresented on juries, and efforts to improve diversity of jury pools.

State v. Saintcalle

During jury selection at Saintcalle's trial, the prosecution used a peremptory challenge to strike the only black juror in the jury pool.  During jury selection, the prosecution questioned this juror more extensively than any other juror.  On appeal, Saintcalle argued that the peremptory strike was clearly racially motivated in violation of the equal protection guaranty as in Batson v. Kentucky, (476 U.S. 79). In its August 1, 2013 opinion, the Washington State Supreme Court disagreed, arguing that Batson requires a finding of purposeful discrimination. But the court also wrote: "However, we also take this opportunity to examine whether our Batson procedures are robust enough to effectively combat race discrimination in the selection of juries. We conclude that they are not. Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only "purposeful discrimination," whereas racism is often unintentional, institutional, or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.”  In his concurrence, Justice Steven González calls for abolishing peremptory challenges.

Number of Peremptory Challenges

  • Washington State: In criminal cases,each side has 12 peremptory challenges in death penalty cases, 6 in other felony cases, and 3 in misdemeanor cases. (CR 6.4: Jurors)
  • Federal Court: In criminal cases ,each side has 20 peremptory challenges in death penalty cases; the government has 6 and the defense has 10 peremptory challenges in othe felony cases; and each side has 3 peremptory challenges in misdemeanor cases. (Rule 24: Trial Jurors)

Number of Peremptory Challenges in Other Jurisdictions

Washington State Jury Commission

Implicit Bias

Implicit Association/Bias Tests

  • These implicit association tests, from the Harvard website, measure the strength of associations between concepts (e.g., black people, gay people) and evaluations (e.g., good, bad) or stereotypes (e.g., athletic, clumsy).  The authors note: "Stereotypes are the belief that most members of a group have some characteristic. Some examples of stereotypes are the belief that women are nurturing or the belief that police officers like donuts. An explicit stereotype is the kind that you deliberately think about and report. An implicit stereotype is one that occurs outside of conscious awareness and control. Even if you say that men and women are equally good at math, it is possible that you associate math with men without knowing it. In this case we would say that you have an implicit math-men stereotype."
  • More about these tests, and links to the tests, from the Teaching Tolerance/Southern Poverty Law Center website.

Getting Up to Speed on Implicit Bias

Open Society Foundation

American Bar Association

Additional Resources

Reading

  • The New Jim Crow (2010):"The New Jim Crow is a stunning account of the rebirth of a caste-like system in the United States, one that has resulted in millions of African Americans locked behind bars and then relegated to a permanent second-class status—denied the very rights supposedly won in the Civil Rights Movement... As the United States celebrates its “triumph over race” with the election of Barack Obama, the majority of black men in major urban areas are under correctional control or saddled with criminal records for life... Alexander shows that, by targeting black men through the War on Drugs and decimating communities of color, the U.S. criminal justice system functions as a contemporary system of racial control, even as it formally adheres to the principle of colorblindness....The New Jim Crow challenges the civil rights community—and all of us—to place mass incarceration at the forefront of a new movement for racial justice in America."
  • Racial Disparities in Pretrial Diversion: An Analysis of Outcomes Among Men Charged with Felonies and Processed in State Courts (2013): Examines racial disparities in pretrial diversion among men charged with felony crimes in metropolitan counties in the years 1990-2006. This study found that prosecutors are more likely to grant pretrial diversions to white defendants than to black or Latino defendants with similar legal characteristics.
  • Racial Disparities in Arrests in the District of Columbia, 2009-2011: Offers research findings about racial disparities in Washington D.C., with the hope that the community can make informed policy decisions to reduce harm of drug use, help the city operate a justice system free of unconscious or conscious bias, and change systemic practices that have an unintended effect in generating these outcomes.
  • The War on Marijuana in Black and White (2013): ACLU examines marijuana possession arrest rates by race for all 50 states and the District of Columbia from 2001-2010. Finds that a black person is 3.73 times more likely to be arrested for marijuana possession than a white person, even though blacks and whites use marijuana at similar rates.
  • Systematic Negligence in Jury Operations: Why the Definition of Systematic Exclusion in Fair Cross Section Claims Must Be Expanded (2011): Argues that in the context of fair cross section jurisprudence, the court's ability to control or mitigate the extent of minority underrepresentation is greatly underestimated.
  • Social De-Construction of Race and Affirmative Action in Jury Selection (2013): Examines possible applications of affirmative action in jury selection to create racially heterogeneous juries.

 

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