THE BLOG
11/26/2013 05:56 pm ET | Updated Jan 26, 2014

Is the American Criminal Justice System Color-blind?

Noting that the American criminal justice system handles criminal cases differently depending on race is hardly newsworthy. From stop-and-frisk to motor vehicle searches at traffic stops to sentencing, racial disparities abound in modern America. However, until the George Zimmerman trial for Trayvon Martin's death, one gaping disparity had received little attention.

Black Americans are far less likely to be found to have been justified in using deadly force in a firearm-related death than White Americans. The differences in the rates at which shootings are found to be justified by race before a trial are astonishing.

In fact, they dwarf every other racial disparity in an already racially unbalanced system. The differences are so great that they put at risk any notion that justice in America is color-blind.

The numbers below require little explanation. Drawing from Supplemental Homicide Reports (SHR) submitted by local law enforcement to the FBI between 2005 and 2010, we see that in cases with a white shooter and a white victim, the shooting is ruled to be justified less than 2 percent of the time. If the shooter is black and the victim is white, the rate of justifiable homicide rulings drops to almost 1 percent. However, if the shooter is white and the victim is black, it is ruled justified in 9.5 percent of cases in non-Stand Your Ground (SYG) states. In SYG states, the rate is even higher -- almost 17 percent.

Now consider the situation that occurred in the Zimmerman case (and I note that none of these facts are in dispute). When there is a homicide with one shooter and one victim who are strangers, neither is law enforcement, and a firearm is used to kill, a little less than 3 percent of black-on-white homicides are ruled to be justified. When the races are reversed, the percentage of cases that are ruled to be justified climbs to more than 29 percent in non-SYG states and almost 36 percent in SYG states.

The one gap in the SHR data is the setting where the homicide occurred. If it turns out that almost all the white-on-black homicides occur in residences or businesses and almost all the black-on-white homicides happen on the street, then perhaps there is no racial animus. But if you look through data compiled by the Tampa Bay Tribune on cases in which a SYG defense was used, you do not see much of a difference in setting. Some may think that white-on-black shootings are justified more often because it involves the black person as an intruder while black-on-white shootings happen in different scenarios. This is not the case. Black-on-white shootings also occur in the shooter's home.

I note that 'racial disparity' is a value-free term. It simply reflects the objective observation that the likelihood of an event (in this case a justified homicide finding) varies systematically by race. It is therefore a necessary but not sufficient condition to conclude that racial animus is the cause of the disparity.

Thus, none of this is definitive. The answer to the question being asked across America today--would the verdict have been different if Zimmerman and Martin's races had been reversed--is unknowable. But the available statistical evidence certainly suggests that Zimmerman walked into the courtroom with an advantage that Trayvon Martin would not have had.