THE BLOG
09/25/2015 02:26 pm ET Updated Sep 25, 2016

Blind Justice Leads to Black Death

Though many of us whites have been able to rationalize away the experience that people of color have always reported, the recent proliferation of smartphone video recordings of encounters between people of color and the police makes it much more difficult for us to deny that the same police whom we trust so implicitly are, in many cases, subjecting people of color to unwarranted violence. The issue goes far deeper than the police/citizen encounter. A system that ensnares and traps people of color in a permanent underclass has been exposed.

Much research and critique has been done on the subject. Ta-Nehisi Coates' October 2015 Atlantic article offers a remarkably comprehensive view of the system with the brevity of a magazine article. Michelle Alexander's book The New Jim Crow: Mass Incarceration in the Age of Colorblindness is for many our first introduction to the issue of mass incarceration and the criminal justice system's disparate treatment of and destructive impact on people and communities of color, especially Black/African American people. Numerous other thinkers, researchers, and writers, many of them people of color, have contributed to this body of knowledge, none of whose work this blog post could hope to emulate.

In The New Jim Crow, Ms. Alexander devotes a chapter to Supreme Court decisions that act to perpetuate the disparate treatment of people of color and are yet considered race neutral. They are particularly clear examples of the legal system acting to perpetuate racial inequity and creating a societal maze from which there is no escape. Often it is because the Supreme Court demands that evidence of conscious, deliberate bias must be present for a person to seek relief or redress from a criminal justice system that creates blatantly different outcomes for different racial groups.

One of those decisions is McClesky v. Kemp. A study found that in the state of Georgia convictions of murder in which the victim was white resulted in the death penalty up to 4.9 times more frequently than when the victim was black. The court found that this was not enough evidence to prove that the death penalty was being applied unfairly. Even if there was a "racially disproportionate impact," no redress could be sought unless there was proof of a "racially discriminatory purpose." In other words, unless there is obvious, overt racism, the application of the death penalty, even though it was proven statistically to be applied differently based on the race of the victim, is deemed to be fair. Colorblind justice means it's a worse crime to kill a white person than a black person.

Another case that Alexander cites is United States v. Armstrong. In this case a defendant's lawyers noticed that a certain prosecutor's office assigned only black crack offenders to the harsher federal system. They sought the prosecutor's records to investigate this more fully. The Supreme Court ruled that the discretion of prosecutors to pursue cases as they see fit is so important that only evidence of conscious, intentional bias would be grounds enough to open prosecutors' records to that degree. With no sense of irony, the court ruled that in order to get the evidence needed to prove bias, one must first prove bias. Colorblind justice means a person can legally be prosecuted more harshly because of her of his race.

In Purkett v. Elem the court ruled that any reason for the use of the peremptory strike of a person from a jury by a lawyer doesn't need to be persuasive or even plausible to be accepted as reasoning for doing so, even if a clear pattern of racial discrimination in jury selection can be discerned. This ruling includes incidents when judges discern the pattern, not just competing lawyers. The judge in such a case has no power to address a prosecutor who uses her or his peremptory strikes to create all white juries. Colorblind justice means a black defendant can expect an all-white jury.

Blacks make up about 13 percent of the US population and almost 35 percent of the people executed. Whites are about 78 percent of the population but only 55 percent of executions. Because of decisions like the ones described by Ms. Alexander, criminal justice professionals pursuing the death penalty who act on unconscious biases are beyond censure (even though by some counts, 70 percent of whites have unconscious bias against blacks . It also means that those who are actually acting on bias, as long as they are smart enough not to publically admit it, can continue to do so with impunity.

Personally, I have been known to get snippy if someone unwittingly joins the express line at the supermarket with more than ten items. We live in a nation where the need to fight against perceived unfair treatment of us has become so pervasive and powerful that we've coined the term "road rage" for the now commonplace violence that occurs as the result of selfish or thoughtless driving. I wonder if some of my white brothers and sisters, looking at these statistics, can put themselves in black people's shoes. I do know there are plenty of us who feel that we are the ones who are discriminated against, but in almost every measure of quality of life and justice, whites fair better statistically than other groups*. We mistake the loss of complete dominance for the loss of liberty. We mistake attempts to create parity with minority dominance. There is a system in place that's killing all of us, some at a higher rate than others.

* Except Asians, who fair slightly better in some areas. This fact is used by many whites as proof that white society is in no way the cause of disparities in other groups without any critical reflection on how the different kinds of common stereotypes of Asians make more room for them to be successful in certain ways within white society while continuing to circumscribe their choices in many ways -- the "model minority" phenomenon.