Washington Law Review


Preliminary Report on Race and Washington’s Criminal Justice System

March 01, 2012 | 87 Wash. L. Rev. 1

Executive Summary

In 1980, of all states, Washington had the highest rate of disproportionate minority representation in its prisons. Today, minority racial and ethnic groups remain disproportionately represented in Washington State’s court, prison, and jail populations, relative to their share of the state’s general population. The fact of racial and ethnic disproportionality in our criminal justice system is indisputable.

Our research focused on trying to answer why these disproportionalities exist. We examined differential commission rates, facially neutral policies with disparate impacts, and bias as possible contributing causes.

We found that the assertion attributed to then-Justice Sanders of the Supreme Court of Washington that “African-Americans are overrepresented in the prison population because they commit a disproportionate number of crimes,” is a gross oversimplification. Studies of particular Washington State criminal justice practices and institutions find that race and ethnicity influence criminal justice outcomes over and above commission rates. Moreover, global assertions about differential crime commission rates are difficult to substantiate. Most crime victims do not report crimes and most criminal offenders are never arrested. We never truly know exact commission rates. Even if arrest rates are used as a proxy for underlying commission rates, 2009 data show that 45% of Washington’s imprisonment disproportionality cannot be accounted for by disproportionality at arrest.

We reviewed research that focused on particular areas of Washington’s criminal justice system and conclude that much of the disproportionality is explained by facially neutral policies that have racially disparate effects. For the areas, agencies, and time periods that were studied, the following disparities were found:

• Youth of color in the juvenile justice system face harsher sentencing outcomes than similarly situated white youth, as well as disparate treatment by probation officers.

• Defendants of color were significantly less likely than similarly situated white defendants to receive sentences that fell below the standard range.

• Among felony drug offenders, black defendants were 62% more likely to be sentenced to prison than similarly situated white defendants.

• With regard to legal financial obligations, similarly situated Latino defendants receive significantly greater legal financial obligations than their white counterparts.

• Disparate treatment exists in the context of pretrial release decisions, which systematically disfavors minority defendants.

• In Seattle, the black arrest rate for delivery of a drug other than marijuana is twenty-one times higher than the white arrest rate for that offense, one of the highest levels of disparity found across the country. Research suggests that this disparity does not primarily reflect different levels of involvement with illicit drugs.

• Minority drivers are more likely to be searched by the Washington State Patrol than white motorists, although the rate at which searches result in seizures is highest for whites.
In all of these areas, facially neutral policies result in disparate treatment of minorities over time.

Implicit and explicit racial bias also contributes to this disproportionality by influencing decision-making within the criminal justice system.

Race and racial stereotypes play a role in the judgments and decision-making of human actors within the criminal justice system. The influence of such bias is subtle and often undetectable in any given case, but its effects are significant, cumulative, and observable over time. When policymakers determine policy, when official actors exercise discretion, and when citizens proffer testimony or jury service, bias often plays a role.

To summarize:

• We find the assertion that the overrepresentation of black people in the Washington State prison system is due solely to differential crime commission rates inaccurate.

• We find that facially race-neutral policies that have a disparate impact on people of color contribute significantly to disparities in the criminal justice system.

• We find that racial and ethnic bias distorts decision-making at various stages in the criminal justice system, contributing to disparities.

• We find that race and racial bias matter in ways that are not fair, that do not advance legitimate public safety objectives, that produce disparities in the criminal justice system, and that undermine public confidence in our legal system.

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