Confront racial bias in Florida courts

Our Dec. 18 editorial warned that some legislative leaders are pushing for changes — such as term limits for state Supreme Court justices — that would harm Florida’s independent judiciary. Such a move would “solve” a “problem” that doesn’t exist.

If lawmakers really want to improve the fairness of Florida’s courts, an eye-opening investigation by the Sarasota Herald-Tribune exposes a true problem that demands to be corrected. The series, “Bias on the Bench,” examined in detail the sentencing practices in Florida courts and found that — over and over and over — black defendants across the state receive harsher sentences than white defendants.

The journalists who researched and wrote the series used state databases to identify defendants who faced similar charges for similar crimes, and who had identical scores on the point system that is supposed to ensure even-handed sentencing statewide. Here’s what they found: “Across Florida, when a white and black defendant score the same points for the same offense, judges give the black defendant a longer prison stay in 60 percent of felony cases.”

Broward and Palm Beach counties were no exception. For example, one database showed that Broward County blacks sentenced for felony drug possession received sentences 65 percent longer than whites. For robbery, their sentences were 15 percent longer. In Palm Beach County, blacks sentenced for felony drug possession received sentences 127 percent longer than whites. For robbery, their sentences were 30 percent longer. (To explore sentencing data for every county, Google the Sarasota HeraldTribune and “Bias on the Bench.”)

We want to emphasize that the bias uncovered in the newspaper’s analysis appears to be overwhelmingly unconscious. The investigative series zeroes in on a Martin County judge, Sherwood “Chip” Bauer Jr., and reports that, “Since taking the bench a decade ago, Bauer has been tougher on those with a darker complexion, often sentencing blacks to two or three times longer than white defendants who committed the same crimes.”

Yet Judge Bauer is well-qualified to serve on the bench, is widely respected, displays no overt signs of racism and was surprised when shown the evidence of racial disparity in his courtroom. Despite that evidence, he stood by his record.

The system itself bears some blame for not routinely — or ever — using its data to shine a light on the bias the newspaper uncovered. One beneficial reform is obvious: The Legislature should require the state to do what the newspaper did. Provide an analysis of sentencing patterns that lays out — judicial district by judicial district, and judge by judge — where the disparity is taking place.

Critics of the newspaper’s investigation, including Judge Bauer, say the findings unfairly blame judges, who in many cases simply ratify plea deals presented to them. Lawmakers should take that methodological issue into account. But to whatever extent judges can be absolved, the search for causes must shift its focus to other parts of the system. If plea deals are the culprit, then the task becomes finding ways to identify and remove the bias from plea deals, which could involve changes in the way that state attorneys and public defenders operate.

The Sarasota Herald-Tribune’s work suggests one reform that, at least in theory, should be easier to accomplish: Appoint more black judges to the bench. While about 10 percent of former Gov. Jeb Bush’s judicial appointees were black, Gov. Rick Scott has lagged at just 6 percent.

The very fact that the point system exists is proof that lawmakers have, historically, wanted to improve fair and uniform sentencing in Florida. That daunting task is complicated by the difficulty of find the right balance between the sometimes-competing goals of sentencing uniformity and judicial discretion, which has the potential to improve or exacerbate sentencing disparity.

What, exactly, should happen to judges or other court officials when the record shows bias? Ideally, the hard facts would initiate some self-correcting. Voters might purge others. Mandated training could help. As hard as it might be to formulate reforms, the first step is to gather the data necessary to understand the problem.

The Legislature should require the state to do what the newspaper did. Provide an analysis of sentencing patterns that lays out ... where the disparity is taking place.

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