The pros and cons of blind jus­tice

Lodi News-Sentinel - - OPINION -

San Fran­cisco District At­tor­ney Ge­orge Gas­con’s plan to re­move any con­sid­er­a­tions of race from his pros­e­cu­tors’ ini­tial de­ci­sions about what charges to file in crim­i­nal cases rein­vig­o­rates an old de­bate: Is jus­tice best served when it is all-see­ing and all-know­ing? Or when it is blind?

Gas­con last week an­nounced his plans to use a tool, de­vel­oped by the Stan­ford Com­pu­ta­tional Pol­icy Lab, to sweep names, crime lo­ca­tions and race from the police re­ports that pros­e­cu­tors re­view be­fore de­cid­ing whether to bring charges.

In a crim­i­nal jus­tice sys­tem be­set by racial bias, the think­ing goes, pros­e­cu­tors may inadverten­tly be swayed by a sus­pect’s race. They might be prone to see a shoplift­ing re­port filed against a white sus­pect as a sign of overzeal­ous polic­ing, but a sim­i­lar re­port against a black sus­pect as an in­di­ca­tion of a crime wave. Or vice versa. If racial data is deleted from the re­port — and if pros­e­cu­tors are un­able to glean that in­for­ma­tion from the sus­pect’s name, hair or eye color, or from the neigh­bor­hood where the crime is al­leged to have oc­curred — couldn’t the jus­tice sys­tem be­come more even-handed?

It is an in­trigu­ing idea worth test­ing. It’s also im­por­tant to keep in mind the many ear­lier ef­forts to en­sure im­par­tial­ity, and their some­times un­in­tended con­se­quences. In the 1970s, in an ef­fort to ra­tio­nal­ize and de-in­di­vid­u­al­ize jus­tice, Cal­i­for­nia adopted a pol­icy known as de­ter­mi­nate sen­tenc­ing. No longer would there be pun­ish­ments like three to 10 years in prison, with the ul­ti­mate term sup­pos­edly tied to the in­mate’s be­hav­ior. That gave too much power to pa­role boards and prison of­fi­cials, whose racial bi­ases might af­fect when they let out any par­tic­u­lar in­mate. With de­ter­mi­nate sen­tenc­ing, there would be a set, un­vari­able term im­posed for each

crime, re­gard­less of the con­vict’s race, back­ground or nar­ra­tive.

But this sup­pos­edly more even-handed sys­tem of jus­tice, soon adopted by other states, in­creased prison pop­u­la­tions and made them more dis­pro­por­tion­ately non­white.

That may be be­cause dis­cre­tion moved from pa­role boards and judges to pros­e­cu­tors, who could in ef­fect se­lect sen­tences by se­lect­ing which crimes to charge and which to drop through pleabar­gain­ing.

Well-mean­ing (or per­haps not-so-well-mean­ing) even­hand­ed­ness does its per­verse work at even the most ba­sic level of the crim­i­nal jus­tice sys­tem. For ex­am­ple, what could be more just, more fair, than im­pos­ing the same fine on every per­son who parks in a no-park­ing zone? And if a hand­ful of driv­ers all get mul­ti­ple tick­ets for their park­ing of­fenses, and then fail to pay them, what could be more even-handed than tow­ing and im­pound­ing their cars un­til they pay the over­due fines, the tow and stor­age fees and the ac­cu­mu­lated in­ter­est?

And if one of those driv­ers couldn’t af­ford to pay the tick­ets, fines and fees, and she’s now go­ing to lose her low-pay­ing job be­cause she can’t get to work while her car is im­pounded (and maybe even has to spend a week in jail) — why should blind­folded jus­tice care? On pa­per, the same laws, the same pun­ish­ments and the same jus­tice are be­ing ap­plied to ev­ery­one equally. But such laws, blindly en­forced, crim­i­nal­ize poverty. And be­cause poverty dis­pro­por­tion­ately af­flicts non­whites, and es­pe­cially African Amer­i­cans, col­or­blind jus­tice can be wielded as a tool to crim­i­nal­ize race.

In­di­vid­u­al­ized jus­tice is like­wise im­per­fect, and can un­der­mine faith in a sys­tem that is sup­posed to hold wrong-do­ers ac­count­able. No per­son should be ab­solved of re­spon­si­bil­ity for their crimes be­cause of race or so­cial sta­tus. Con­sider the right­eous out­rage over the le­nient sen­tences for the Stan­ford rapist or the Texas “af­fluenza” drunk driver.

In re­cent years, al­go­rithms and new tech­nolo­gies have promised to re­move hu­man bias from many as­pects of the jus­tice sys­tem, in­clud­ing bail. But crit­ics say these tools of­ten sim­ply am­plify pre­ex­ist­ing racial bi­ases in the sys­tem. Gas­con’s “blind-charg­ing” pro­gram elim­i­nates racial ref­er­ences only in the ini­tial phase of pros­e­cu­to­rial de­ci­sion-mak­ing.

Ul­ti­mately, the prose­cu­tor sees ev­ery­thing, in­clud­ing the sus­pect’s race, be­fore a fi­nal charg­ing de­ci­sion is made. If a prose­cu­tor comes to a dif­fer­ent de­ci­sion once all the in­for­ma­tion is avail­able, that will be recorded and the prose­cu­tor will be asked why his or her de­ci­sion changed. An­swer­ing that ques­tion could pro­duce the most use­ful data. The San Fran­cisco sys­tem will prop­erly include el­e­ments of both blind and wide-eyed jus­tice.

Both are likely needed through­out the crim­i­nal jus­tice sys­tem. But how much of each, and at what point in the process? Those are ques­tions the sys­tem’s lead­ers and front-line of­fi­cers must keep ask­ing — whether or not they ever land on a sin­gle per­ma­nent an­swer.

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