Prosecution

Sentencing Disparities Examined in Massachusetts and Washtenaw County, Michigan

Racially disparate initial charging decisions for similar crimes in Massachusetts contribute to disparate sentence lengths among Black and Latinx versus white individuals, according to a report by the Criminal Justice Policy Program at Harvard Law School. The report, commissioned by the late Supreme Judicial Court Chief Justice Ralph Gants and covered by CommonWealth and the Washington Post, finds that charging disparities contributed to Black and Latinx people being more likely to have their cases resolved in Superior Court where the available sentences are longer than in District Court. In drug and gun cases between 2014 and 2016, disparate charging decisions also contributed to Black and Latinx individuals being less likely than similarly situated whites to have their cases resolved through dispositions that did not lead to incarceration. (Most local police departments and the Massachusetts District Attorney Association did not provide usable data that could be incorporated into this analysis.)

Prosecutors in Washtenaw County (home to Ann Arbor), Michigan, may be engaging in “horizontal” and “vertical” overcharging against people of color, according to an analysis by Citizens for Racial Equity in Washtenaw (CREW), covered by Michigan Live and WEMU. Horizontal overcharging occurs when prosecutors bring as many charges as possible (even ones that may not be provable) and vertical overcharging occurs when prosecutors bring charges that carry the stiffest penalties, both in order to coerce defendants into guilty pleas. The report, which also highlights disparities in judicial practices based on publicly accessible data between 2013 and 2019, notes that people of color also received more convictions per case, contributing to a “habitual offender” status and future harsh treatment in the courts. Incoming Washtenaw County Prosecutor Eli Savit has pledged to carry out one of the report’s recommendations and “partner with a third-party evaluator to identify—and eliminate—the practices in our prosecutor’s office that give rise to those disparities.”

Invited to Handle DC Gun Charges, Federal Prosecutors Targeted Black Communities

To “send a clear message that violence will not be tolerated,” Washington, DC Mayor Muriel Bowser encouraged federal prosecutors last year to take over illegal gun possession cases involving people with felony convictions, in order to expedite prosecutions and impose lengthier sentences. A recent court filing revealed that the planned city-wide strategy, criticized by the ACLU of DC for aggravating the problem of mass incarceration, targeted predominantly Black neighborhoods. The court filing also revealed that a working group of Black Assistant U.S. Attorneys opposed the gun program’s implementation and requested its termination, along with a limited range of other reforms, according to The Washington Post. 

Mayor Bowser and Police Chief Peter Newsham said that they were unaware of the program’s targeted implementation and would prefer its broad application, which acting U.S. Attorney Michael R. Sherwin has promised. DC Councilmember Charles Allen, Chair of the Committee on the Judiciary and Public Safety, opposed the launch of policy like most of his colleagues and has called for its termination: “It is one more policy defaulting to harsh penalties on Black residents whose neighborhoods have historically been underinvested in and overpoliced.”

NYC Birdwatcher in Viral Video Declines to Aid in Prosecutorial Investigation

In May, Christian Cooper found himself in the middle of a viral video encounter while birdwatching in Central Park after a white woman called 911 to falsely claim she was being threatened an “African American man”—Cooper. As a result of the exchange that Mr. Cooper videotaped, Amy Cooper, the woman in the video who refused Mr. Cooper’s request that she leash her dog per park rules, was charged by the Manhattan District Attorney for filing a false police report. However, Mr. Cooper has chosen not to assist in the investigation. 

In a Washington Post Op-Ed, Mr. Cooper highlighted the importance of holding people accountable for their actions, but he also cites his belief in “punishments that are commensurate with the wrongdoing.” He wrote that Ms. Cooper lost her job and tarnished her reputation, a reasonable deterrent for people who commit similar offenses. “I’ve said all along that I think it’s a mistake to focus on this one individual. The important thing the incident highlights is the long-standing, deep-seated racial bias against us black and brown folk that permeates the United States,” he added.

Reforms

Defendants in Utah and California Can Contest Racial and Ethnic Bias

In January, the Utah Sentencing Commission approved revisions to that state’s sentencing guidelines allowing defendants to argue that racial, ethnic, or other biases—whether conscious or unconscious—can be considered as a mitigating factor. The Salt Lake Tribune reported that the provision has yet to be tested in court, though one member of the Commission noted: “Just knowing that you could be held accountable for racial bias at sentencing will hopefully bring some improvements, even if it isn’t ultimately argued in court.” Utah, like other states, disproportionately incarcerates people of color. People of color make up just 8% of Utah’s adult population but 43% of new admissions to its prisons, an increase from 34% in three years. 

California lawmakers, although declining to advance police reform bills, have passed two bills to tackle discriminatory sentencing. The California Racial Justice Act, Assembly Bill 2542, would allow people to ask the courts to vacate a conviction or sentence by proving by a preponderance of the evidence that an attorney, police officer, juror, judge, or expert witness exhibited bias or used discriminatory language about their race, ethnicity, or national origin. According to Los Angeles Times reporter Taryn Luna: “Defendants would also be allowed to show that they were charged or convicted of a more serious offense, or were given a more severe sentence than defendants of other races in similar circumstances,” and can show evidence of discrimination in jury selection. To tackle discriminatory jury selection, the state legislature also recently approved Assembly Bill 3070, to limit peremptory challenges. The bill shifts the burden of proof by requiring the attorney who removes a prospective juror to prove that the cause was not race or other prohibited factors. Both bills await Gov. Gavin Newsom’s signature.

Berkley to Disarm Traffic Enforcement

The City Council of Berkeley, California, is shifting traffic and parking enforcement responsibilities away from the Berkeley Police Department as part of an omnibus motion on police reforms approved in July, reports Berkeleyside. Under Councilmember Rigel Robinson’s legislation, a new Department of Transportation will “ensure a racial justice lens in traffic enforcement” and find ways to eliminate or reduce “pretextual stops based on minor traffic violations.” African Americans have accounted for half of traffic stops conducted by Berkeley police in recent months while representing 8% of the city’s population.

Proposals to relocate at least some traffic enforcement functions or other work away from police departments are also being considered in Montgomery County, MD, Cambridge, MA, St. Louis Park, MN, and Denver, CO. In addition, The Pew Charitable Trusts reports that several states and localities are seeking to reduce or eliminate pretextual (“pretext”) stops, in which officers initiate minor traffic stops to investigate drug and weapon offenses and other crimes. Officers generally target Black drivers for pretext stops and rarely find contraband, while straining police-community relations and initiating possibly fatal encounters. ABC News recently examined policing trends and found at least some disparity in traffic stops in almost every major city examined.

Policing

Anti-Segregation Policing Could Alleviate Housing Inequalities

Anti-segregation policing could combat the issues of residential segregation that stem from current policing methods, such as mass criminalization and building neighborhood reputations such as “high crime” or as “racist” due to racial profiling by police or with police-condoned racial violence, according to a recent article by Yale Law Professor Monica C. Bell. In the article, published in the New York University Law Review, Bell argues that residential segregation contributes to mass criminalization and poor economic outcomes in urban areas. 

Bell proposes that police departments adopt policies that promote anti-segregation. She notes that some aspects of fair housing law could be used to form a duty for police departments to create policies that counteract segregation by avoiding racial steering in policing. Bell’s other recommendations include reorganizing police districts to lessen the likelihood of racial disparities in policing by creating more racially diverse districts, allowing police the option of not responding to 911 calls that seem borne from racial bias, and advancing structural reform litigation such as by the Department of Justice under Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994.

Having trouble viewing this email? View it in your web browser