CA Legislature Wants Judges to Sentence Criminals Based on Their Race

To make amends for “racial bias that has historically permeated our criminal justice system” a bill before the state Senate seeks to require judges to consider the race of convicted criminals when determining sentences.  The bill (AB 852) was introduced by Assembly Public Safety Committee Chair Reggie Jones Sawyer (D. Los Angeles) and cleared the Assembly in May on a 53-13 party line vote.  It was Chairman Sawyer who last week killed a bi-partisan Senate bill which made sex-trafficking children a serious crime under California law.  He did this by joining the five other democrat members of the eight member committee in refusing to vote.  The backlash for that action forced the Assembly Speaker and the Governor to demand reconsideration.  So Sawyer had his committee reconsider the bill and pass it by a 6-0 vote, with two democrats abstaining.  When the clerk called for a voice vote, Sawyer defiantly yelled out “Aye.”  His bill injecting racial bias into sentencing is likely to pass in the Senate.   A piece in Liberty  Unyielding by attorney Hans Bader offers a scholarly discussion on the constitutionality of such a law.   Excerpts follow the break.

But even institutions with a history of racism against minorities generally cannot discriminate in their favor when it comes to punishment. Discrimination based on race in handing out punishments is likely too extreme. For example, a federal appeals court struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)). This provision was struck down, even though a “district judge found that the school district had intentionally discriminated against black and Hispanic students in violation of the equal protection clause of the Fourteenth Amendment.”

Moreover, by permanently mandating the use of race to rectify “disparate impact,” the California legislation runs afoul of the requirement that any racial preference be “temporary” and target “specific identified instances of past discrimination.” The Supreme Court’s June 29 decision in Students for Fair Admissions v. Harvard rejected the use of race in admissions to promote diversity, because such a use of race could persist for generations, and thus violated the precept that any “deviation from the norm of equal treatment” must be “limited in time” and “a temporary matter.” It also stated that outside the context of higher education, “our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute….The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

Disparate impact in the criminal justice system is not a “specific, identified” instance of “past discrimination,” and it often does not violate any law. Instead, it is something that will persist for generations, or even forever, even if racism is purged from the criminal justice system. That is because many racial disparities in the criminal justice system are not due to racism or the legacy of segregation at all. For example Asians are 15% of California’s population, but only 2% of its jail population — a huge racial disparity. Nationally, less than 2% of the jail population is Asian or Pacific Islander, even though they account for more than 6% of the U.S. population. The criminal justice system has a huge disparate impact on all other racial groups relative to Asians, but this is not due to any racism in favor of Asians — indeed, occasionally discrimination occurs against Asians, such as in police stops in California’s Siskiyou County. In the 19th Century, California massively discriminated against Asians in its criminal justice system, including barring Chinese people from testifying in court in People v. Hall (1854).

Racial differences in arrest and incarceration rates do not prove racism, even if they are viewed as a form of “disparate impact.” In an 8-to-1 ruling, the Supreme Court emphasized that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data showing big differences in crime rates. Thus, racial disparities in arrest or incarceration rates don’t violate the Constitution’s ban on racial discrimination (See United States v. Armstrong (1996)). A 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at much higher rate than people in general, this mostly reflected underlying crime rates: “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).

Many racial disparities have nothing to do with illegal discrimination, and don’t need to be “fixed” to remedy discrimination. For example, Hispanics live longer than whites on average, and Asians live significantly longer than whites. Racial disparities exist everywhere in the world, often for non-racist reasons, notes the black economist Thomas Sowell in his book Discrimination and Disparities. In a 6-to-3 ruling, the Supreme Court said that it is “completely unrealistic” to think that in the absence of racism, minorities will be represented in a field “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co. (1989)).

Fixing “disparate impact” does not fix unconstitutional discrimination. The Supreme Court has ruled that “disparate impact” does not violate the Constitution, in Washington v. Davis (1976). Outside the employment setting, it often doesn’t violate civil-rights statutes, either (See, e.g., Alexander v. Sandoval (2001)).

The Supreme Court recently warned that race cannot be used for an “amorphous end,” such as fixing societal discrimination, or “nebulous values,” such as promoting diversity of various kinds. Rectifying “disparate impact” in the criminal justice system seems at least as amorphous or nebulous as these goals.

Even if using race in sentencing did not violate equal-protection guarantees, it could still violate the constitutional right to due process, which requires impartial sentencing, and does not contain any exception allowing race to be used to offset discrimination against other people. The equal protection clause is not the only provision barring the use of race in the criminal justice system. For example, the Sixth Amendment right to an impartial jury restricts racism in jury deliberations, above and beyond what the 14th Amendment’s equal protection clause mandates. (See Pena-Rodriguez v. Colorado (2017)). Similarly, people have the due-process right under the 5th and 14th Amendments to an impartial decisionmaker, even when they are subject only to mild penalties such as small fines, unlike the prison sentences affected by the California legislation. (See, e.g., Tumey v. State of Ohio (1927)).

It should be troubling to Californians that the Chairman of the Public Safety Committee has to be forced at virtual gunpoint to vote to protect the safety of children being trafficked for sex.  Another concern is that he seems to have little understanding or regard for the Constitution or criminal law.