“With liberty and justice for all.” The final words of the Pledge of Allegiance. We say them but do they really register.
Equal rights and justice – concepts fought over in the Civil War … made a pillar of the American justice system with the passage of the post-Civil War 13th and 14th Amendments to the Constitution, abolishing slavery and guaranteeing due process and equal protection of the laws to all.
While we have move toward that concept, we’re still not there. There remains a racial disparity within the system, from arrests and convictions to incarceration and parole violations. People of color are disproportionally over-represented in every phase of the system.
The USA has the highest rate of incarceration in the world and 33 percent of our prison population is African-American, compared to 15 percent of our general population. There’s something terribly wrong with that. We must address the issue and we must make it better.
All of us – police, lawyers, judges, and jurors included – bring their own subconscious biases into the system. Subtle and subconscious racial bias exists, even in the most well intentioned. We need to recognize it ourselves, not ignore it. We must educate others, not excuse it. And we must fight it, not be resigned to it.
End the war on drugs
Washington voters found a crack and have begun to let the light into the darkness known as the “War on Drugs” when we legalized marijuana. The federal government also recently announced a policy change that will result in fewer federal prosecutions for low-level possession cases. Federal “mandatory minimum” sentencing laws have severely limited judicial discretion in sentencing for the non-violent offenders. These low-level, non-violent drug possession and marijuana cases have been largely responsible for the disproportionately high number of young men of color incarcerated in state and federal prisons.
Current sentencing laws need reform. Now, the length of a sentence for a drug offense rises geometrically with the number of prior offenses. The addicted person is not treated, simply locked up longer and longer and longer, removed from his community and family. Community-based treatment is a better solution for the problem and saves prison space for the truly violent and dangerous. The legislature can change the sentencing laws with regards to drug offenses to emphasize the treatment alternative as opposed to more prison space used to warehouse the addicted.
Discrimination in jury selection
The Washington Supreme Court recently decided State v. Saintcalle, bringing renewed attention to the issue of racial discrimination in the jury selection process. Since the U.S. Supreme Court’s decision in Batson v. Kentucky 26 years ago, prosecutors need only come up with a “race-neutral” explanation for excusing black jurors from the jury. Our Supreme Court could not find a Batson violation in the Saintcalle case, but all nine had clear misgivings as to whether the Batson standard went far enough to eliminate racial discrimination in jury selection:
Twenty-six years after Batson, a growing body of evidence shows that racial discrimination remains rampant in jury selection. In part, this is because Batson recognizes only “purposeful discrimination,” whereas racism is often unintentional, institutional or unconscious. We conclude that our Batson procedures must change and that we must strengthen Batson to recognize these more prevalent forms of discrimination.
And justice for all
Racial bias won’t go away. But we must strive to eliminate it entirely from the best (though not perfect) criminal justice system in the world. To do so, we must see it and understand it in its most invisible forms. We must discuss it and educate ourselves and others about it, not be afraid or embarrassed to talk about it. And we must battle and overcome it to make “and justice for all” a reality we can take pride in as Americans.
Mark Prothero, attorney with Hanis Irvine Prothero, PLLC (hiplawfirm.com), is a Kent resident. Reach him at 253-520-5000 or mprothero@hiplawfirm.com
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