Attorneys for six Washington state prisoners, Circuit Court Judge A. Wallace Tashima wrote, “have demonstrated that police practices, searches, arrests, detention practices, and plea bargaining practices lead to a greater burden on minorities that cannot be explained in race-neutral ways.”
Joined by Judge Stephen Reinhardt in the majority opinion, Tashima found no “race neutral” explanation for the higher incarceration rates and reversed a U.S. District Court decision in favor of the felons.”
There’s a lot to say about this decision; probably more than can be said in a single blog post.
My first reaction is one that I have expressed many times before: how in the hell does Stephen Reinhardt manage to get onto the panel on every hot-button liberal issue the Ninth Circuit ever takes up?
To me, the biggest concern flowing from this decision is the precedent that federal courts can now make sweeping declarations about the discriminatory nature of the criminal justice system based on dubious studies by sociology professors. (More about that in the extended entry below.) The implications are potentially staggering and go far beyond felons’ right to vote. If federal courts can declare the entire system of criminal justice in a state (or the country!) to be racially discriminatory, you could see an invalidation of Three Strikes laws or any other recidivism statute. You could see a sweeping invalidation of laws prohibiting felons the right to possess firearms. And that could be just the tip of the iceberg.
Commenter carlitos points out another potentially disturbing impact of the decision: its potential effect on rural districts with big prisons. Given that the decision explicitly extends to currently incarcerated inmates, you’re potentially looking not just at a huge bump in the number of Democratic voters as a whole, but also very concentrated bumps in districts that otherwise would likely be reliably Republican.
What bothers me more than anything else is the way that the judges rely on dubious methodology that they don’t even seem to understand.
The rest of this post cites some of the source material and gets into a little more detail concerning that methodology. For those of you with less interest in the topic or shorter attention spans, I’m tucking this part in the extended entry.
If you read through the two studies cited in the Ninth Circuit’s opinion (one here, by a Professor Crutchfield, and another here, by a Professor Beckett), you will see that each study actually cites other studies that find no racial discrimination in various aspects of the system. For example, Crutchfield says:
Hewitt (1977) finds no significant racial differences in case outcomes after these and other factors that he considers to be legally relevant have been taken into account.
Crutchfield says that another research team
found some race differences in charging decisions but these differences were not statistically significant. One of their findings, where racial differences were statistically significant, was not in the ordinarily expected direction. They found that minorities, African Americans and Latinos, are significantly less likely to be convicted of delivery than whites.
Hmmm. Very interesting that Prof. Crutchfield thinks that the “ordinarily expected direction” is that borne out by his analysis. As a prosecutor who has tried drug sales cases in a heavily minority district, it doesn’t surprise me in the slightest that it’s tougher to convict a black or Latino defendant of drug sales, in jurisdictions with heavily minority jury pools. This is one reason that drug sentences in Compton, for example, are generally much lighter than they are in, say Pomona. It’s simply easier to convict the white guy in Pomona, so you don’t have to discount your case as much to address the potential impact of a negative verdict.
Despite the plethora of studies out there finding no racial profiling or discrimination at every level of the system, it just so happens that the good Professors — who were hired by the minority plaintiffs in this case — disagree with several of the previous studies they review. For example, Professor Crutchfield, with his background in ethnic studies, rejects the conclusions of studies that find no racial disparity with dismissive language like this:
This researcher’s experience with interviewing law enforcement personnel is that they routinely report that the behavior of officers can be justified as good policing rather than as racially problematic. It is little wonder that troopers and sergeants who participate in focus groups can “explain” why members of racial minorities are significantly more likely to be searched, even after legally relevant variables are taken into account.
Damn cops! They probably even think it was wrong to question Henry Louis Gates about being in his own home!
You can see how dangerous it is to allow sociology professors to have their reports given the force of law by liberal Circuit judges — especially when they don’t appear to understand what they’re reading. For example, Judge Tashima writes in his opinion:
Dr. Crutchfield’s report states that criminal justice practices disproportionately affect minorities beyond what can be explained by non-racial means. For example . . . [a] study of the Washington State Patrol shows that Native Americans were more than twice as likely to be searched as Whites; African Americans were more than 70 percent more likely to be searched than Whites; and Latinos were more than 50 percent more likely to be searched.
Yet this very study, Prof. Crutchfield explains, rejects the idea that its data shows racial profiling. Contrary to Judge Tashima’s conclusion that “criminal justice practices disproportionately affect minorities beyond what can be explained by non-racial means,” the authors of the study cited by Tashima wrote:
There are simply too many remaining problems in the databases and possible effects from variables not considered in these analyses to support a statement that the statistical disparities witnessed in these data are the result of discrimination in the use of law enforcement authority.
Indeed, a later study by the same researchers found no evidence of racial profiling at all.
But Prof. Crutchfield, with his dismissive attitude towards law enforcement, disagrees. And that’s good enough for Judge Tashima.
At the same time, I think it’s important to note the limitations of the decision. The case arises in the context of a motion for summary judgment, and the judges note that the attorneys for the State of Washington foolishly neglected to present any evidence on their own behalf (i.e., the plaintiffs had their own whore experts, so the state’s lawyers should have gotten their own whores). The judges explicitly chide the lawyers for this. The following passage can fairly be translated as follows: “You didn’t give us any evidence, so we had to go with what we had.” Indeed, you cannot read this passage without imagining the writer shrugging his shoulders in a “you forced me into this” posture:
Declining to “offer any evidence opposing summary judgment . . . is not the recommended approach when the opposing party feels that the movant has not met his burden. . . . [I]n most cases the better response to a summary-judgment motion is not simply to test the sufficiency of the movant’s case by challenging the legal sufficiency of the evidence presented on the motion, but to introduce contradictory evidence to establish that a question of material fact remains in dispute.” 10A Charles Alan Wright et al., Federal Practice and Procedure Civil 3d § 2727, at 516 (1998). Nevertheless, that is the approach the Defendants have pursued, and we are charged with deciding this case in the procedural posture and on the record evidence as it is brought before us.
Simply put, the State of Washington is suffering in part because it had some really sucky lawyers.
Also, the fact that the case arises in the context of a Voting Rights Act challenge, and not an Equal Protection challenge. The holding does not directly translate to the horrors you might imagine.
Yet this is potentially the first step down a long road leading somewhere that we really don’t want to go.
Dafydd ab Hugh’s post on the decision sounds the right notes, I think. However, Dafydd has not read the decision or the studies upon which it is based, and so he has failed to grapple with the claims of the sociology professors who claim to have looked at the very variables Dafydd accuses the court of ignoring.
I would like to encourage Dafydd and any other interested readers to poke through the links I have provided. There are nuggets a plenty in the various studies and other links.
Bottom line: yes, you are right to be concerned by this decision. You should be very concerned indeed.
And I hope it is reversed en banc or by the Supreme Court. I think it rather likely, in fact.
Time will tell.