{"id":9312,"date":"2023-07-18T14:17:16","date_gmt":"2023-07-18T21:17:16","guid":{"rendered":"https:\/\/www.crimeandconsequences.blog\/?p=9312"},"modified":"2023-07-18T14:17:16","modified_gmt":"2023-07-18T21:17:16","slug":"ca-legislature-wants-judges-to-sentence-criminals-based-on-their-race","status":"publish","type":"post","link":"https:\/\/www.crimeandconsequences.blog\/?p=9312","title":{"rendered":"CA Legislature Wants Judges to Sentence Criminals Based on Their Race"},"content":{"rendered":"

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.\u00a0 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.\u00a0 It was Chairman Sawyer who last week killed a bi-partisan Senate bill which made sex-trafficking children a serious crime under California law.\u00a0 He did this by joining the five other democrat members of the eight member committee in refusing to vote.\u00a0 The backlash for that action forced the Assembly Speaker and the Governor to demand reconsideration.\u00a0 So Sawyer had his committee reconsider the bill and pass it by a 6-0 vote, with two democrats abstaining.\u00a0 When the clerk called for a voice vote, Sawyer defiantly yelled out “Aye.”\u00a0 His bill injecting racial bias into sentencing is likely to pass in the Senate. \u00a0 A piece<\/a> in Liberty\u00a0 Unyielding by attorney Hans Bader offers a scholarly discussion on the constitutionality of such a law. \u00a0 Excerpts follow the break.<\/p>\n

<\/p>\n

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 \u201cschool district to refer a higher percentage of minority students than of white students for discipline unless the district purges all \u2018subjective\u2019 criteria from its disciplinary code,\u201d concluding that that constituted a forbidden racial quota. As it noted, \u201cRacial disciplinary quotas violate equity\u201d by \u201ceither systematically overpunishing the innocent or systematically underpunishing the guilty,\u201d and thus violate the requirement that \u201cdiscipline be administered without regard to race or ethnicity.\u201d (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)). This provision was struck down, even though a \u201cdistrict 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.\u201d<\/p>\n

Moreover, by permanently mandating the use of race to rectify \u201cdisparate impact,\u201d the California legislation runs afoul of the requirement that any racial preference be \u201ctemporary\u201d and target \u201cspecific identified instances of past discrimination.\u201d The Supreme Court\u2019s 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 \u201cdeviation from the norm of equal treatment\u201d must be \u201climited in time\u201d and \u201ca temporary matter.\u201d It also stated that outside the context of higher education, \u201cour 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\u2026.The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.\u201d<\/p>\n

Disparate impact in the criminal justice system is not a \u201cspecific, identified\u201d instance of \u201cpast discrimination,\u201d 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\u2019s population, but only 2% of its jail population \u2014 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 \u2014 indeed, occasionally discrimination occurs against Asians, such as in police stops in California\u2019s 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).<\/p>\n

Racial differences in arrest and incarceration rates do not prove racism, even if they are viewed as a form of \u201cdisparate impact.\u201d In an 8-to-1 ruling, the Supreme Court emphasized that there is no legal \u201cpresumption that people of all races commit all types of crimes\u201d at the same rate, since such a presumption is \u201ccontradicted by\u201d real world data showing big differences in crime rates. Thus, racial disparities in arrest or incarceration rates don\u2019t violate the Constitution\u2019s 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: \u201cwhite 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.\u201d (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).<\/p>\n

Many racial disparities have nothing to do with illegal discrimination, and don\u2019t need to be \u201cfixed\u201d 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 \u201ccompletely unrealistic\u201d to think that in the absence of racism, minorities will be represented in a field \u201cin lockstep proportion to their representation in the local population.\u201d (See Richmond v. J.A. Croson Co. (1989)).<\/p>\n

Fixing \u201cdisparate impact\u201d does not fix unconstitutional discrimination. The Supreme Court has ruled that \u201cdisparate impact\u201d does not violate the Constitution, in Washington v. Davis (1976). Outside the employment setting, it often doesn\u2019t violate civil-rights statutes, either (See, e.g., Alexander v. Sandoval (2001)).<\/p>\n

The Supreme Court recently warned that race cannot be used for an \u201camorphous end,\u201d such as fixing societal discrimination, or \u201cnebulous values,\u201d such as promoting diversity of various kinds. Rectifying \u201cdisparate impact\u201d in the criminal justice system seems at least as amorphous or nebulous as these goals.<\/p>\n

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\u2019s 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)).<\/p><\/blockquote>\n

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.\u00a0 Another concern is that he seems to have little understanding or regard for the Constitution or criminal law.<\/p>\n","protected":false},"excerpt":{"rendered":"

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.\u00a0 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.\u00a0 It was Chairman Sawyer who last week killed a bi-partisan Senate bill which made sex-trafficking children a serious crime under California law.\u00a0 He did this by joining the five other democrat members of the eight member committee in refusing to vote.\u00a0 The backlash for that action forced the Assembly Speaker and the Governor to demand reconsideration.\u00a0 So Sawyer had his committee reconsider the bill and pass it by a 6-0 vote, with two democrats abstaining.\u00a0 When the clerk called for a voice vote, Sawyer defiantly yelled out “Aye.”\u00a0 His bill injecting racial bias into sentencing is likely to pass in the Senate. \u00a0 A piece in Liberty\u00a0 Unyielding by attorney Hans Bader offers a scholarly discussion on the constitutionality of such a law. \u00a0 Excerpts follow the break.<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[23],"tags":[],"class_list":["post-9312","post","type-post","status-publish","format-standard","hentry","category-general"],"yoast_head":"\nCA Legislature Wants Judges to Sentence Criminals Based on Their Race - Crime & Consequences<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.crimeandconsequences.blog\/?p=9312\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"CA Legislature Wants Judges to Sentence Criminals Based on Their Race - Crime & Consequences\" \/>\n<meta property=\"og:description\" content=\"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.\u00a0 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.\u00a0 It was Chairman Sawyer who last week killed a bi-partisan Senate bill which made sex-trafficking children a serious crime under California law.\u00a0 He did this by joining the five other democrat members of the eight member committee in refusing to vote.\u00a0 The backlash for that action forced the Assembly Speaker and the Governor to demand reconsideration.\u00a0 So Sawyer had his committee reconsider the bill and pass it by a 6-0 vote, with two democrats abstaining.\u00a0 When the clerk called for a voice vote, Sawyer defiantly yelled out “Aye.”\u00a0 His bill injecting racial bias into sentencing is likely to pass in the Senate. \u00a0 A piece in Liberty\u00a0 Unyielding by attorney Hans Bader offers a scholarly discussion on the constitutionality of such a law. \u00a0 Excerpts follow the break.\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.crimeandconsequences.blog\/?p=9312\" \/>\n<meta property=\"og:site_name\" content=\"Crime & Consequences\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/CriminalJusticeLegalFoundation\/\" \/>\n<meta property=\"article:published_time\" content=\"2023-07-18T21:17:16+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/www.crimeandconsequences.blog\/wp-content\/uploads\/2020\/07\/FB_DefaultLJ.png\" \/>\n\t<meta property=\"og:image:width\" content=\"300\" \/>\n\t<meta property=\"og:image:height\" content=\"400\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/png\" \/>\n<meta name=\"author\" content=\"Michael Rushford\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Michael Rushford\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"6 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=9312\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/?p=9312\",\"name\":\"CA Legislature Wants Judges to Sentence Criminals Based on Their Race - Crime & Consequences\",\"isPartOf\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\"},\"datePublished\":\"2023-07-18T21:17:16+00:00\",\"author\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/818db0b54694df828fde443a64c42758\"},\"breadcrumb\":{\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=9312#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.crimeandconsequences.blog\/?p=9312\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/?p=9312#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.crimeandconsequences.blog\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"CA Legislature Wants Judges to Sentence Criminals Based on Their Race\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#website\",\"url\":\"https:\/\/www.crimeandconsequences.blog\/\",\"name\":\"Crime & Consequences\",\"description\":\"Crime and criminal law\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/www.crimeandconsequences.blog\/?s={search_term_string}\"},\"query-input\":{\"@type\":\"PropertyValueSpecification\",\"valueRequired\":true,\"valueName\":\"search_term_string\"}}],\"inLanguage\":\"en-US\"},{\"@type\":\"Person\",\"@id\":\"https:\/\/www.crimeandconsequences.blog\/#\/schema\/person\/818db0b54694df828fde443a64c42758\",\"name\":\"Michael Rushford\",\"sameAs\":[\"https:\/\/www.cjlf.org\"],\"url\":\"https:\/\/www.crimeandconsequences.blog\/?author=3\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"CA Legislature Wants Judges to Sentence Criminals Based on Their Race - Crime & Consequences","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.crimeandconsequences.blog\/?p=9312","og_locale":"en_US","og_type":"article","og_title":"CA Legislature Wants Judges to Sentence Criminals Based on Their Race - Crime & Consequences","og_description":"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.\u00a0 The bill (AB 852) was introduced by Assembly Public Safety Committee Chair Reggie Jones Sawyer (D. 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