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| Getting to Know Ourselves Every attorney who has represented a person
of color before a white jury is concerned that the panel members may
believe the worst about the client.
During jury selection, when the subject of racial prejudice
is broached, potential jurors rarely admit to having bias.
If they are honest, and most people are, they should be trusted,
but intuition leads one to doubt.
Do they know themselves well enough to recognize it? Perhaps the phenomenon of prejudging is
a common experience. An attorney
friend came out of the courtroom where a high school civics class
was observing. He gushed about their model behavior and upstanding
citizenship. Walking down the
hall, we met several youthful American Indians, and as we passed,
he murmured under his breath, “It must be juvenile court day.” Unconsciously, he had clothed the fair-haired
with noble attributes, while the others were stereotyped as criminals. Lawyers are not immune to having biases, and
I suspect the same is true for police. I have heard anecdotes about people being
stopped because they were “driving while black.” Studies confirm that African Americans and Latinos
are stopped and searched at a much higher rate than whites. Although factors other than racial profiling
must be considered in trying to explain this, I do believe that blacks
and Latinos are more likely than whites to be assumed to be carrying
contraband. Research demonstrates
that assumption is inaccurate. According
to a study reported by the Council on Crime and Justice, the numbers
are not even close: the “hit rate” is 9 percent for Latinos, 11 percent
for blacks, 24 percent for whites.
This means that at the current rate, police are much more likely
to find illegal drugs, guns, or other contraband in possession of
a white suspect than a suspect who is black or Latino.
It appears we are better able to identify suspicious behavior
among whites than among people of color. Criminal sentencing is also influenced by
attitudes toward those involved. Consider
two recent high-profile homicides. Bill Janklow, former
South Dakota Attorney General, Governor and U.S. Representative, blew
through a stop sign protecting a blind intersection at high speed,
causing a collision that resulted in the death of Randolph E. Scott. At the scene, he stated he was trying to avoid
a yellow car, but no other witnesses saw the phantom vehicle. Janklow had a history of reckless driving. His record shows numerous driving citations.
In several cases, he was stopped for driving 15-20 mph faster than
the posted speed limit, and once was caught for going 90 mph in a
65 mph zone. A witness told of a near collision with Janklow’s car about one year prior to this fatality at the
same intersection. Janklow’s trial resulted in a conviction and he was
sentenced to 100 days in jail, plus fines and penalties. During 70 of those days, he was allowed to go
out into the community ten hours per day and perform community service. About the same time, Dru
Sjodin, a student at the University of North Dakota in The separate events ended in tragedy for
each of the surviving families, but with great disparity in the proposed
penalties for the defendants. Although
the law itself distinguishes between murder and criminal vehicular
homicide, I believe people’s willingness to identify with the parties
involved explains some of the disparity in attitudes toward sentencing. In one case people identified with the defendant,
a public official, and readily accepted that the lenient treatment
offered him was just. In the
other case, public attention focused on the nightmare experienced
by the victim and her family while the defendant was barely extended
the presumption of innocence. Understandably,
not all homicides are treated equally, but callous conduct by a former
governor did not spark an outcry for reinstatement of the death penalty. In those states allowing capital punishment,
a disproportionate number of death row inmates are people of color.
Here’s my bias. I am skeptical of the juror’s ability to recognize
that he has preconceived ideas that affect the fairness of his decisions.
I also have concerns about other decision makers in the criminal
justice system, including those of us who are officers of the court.
I don’t mean to oversimplify a complex set of circumstances,
but merely to focus on a critical issue.
Racial bias, in my opinion, is insidious
and oftentimes is not recognized on a personal level. Please ask yourself a couple of questions:
When boarding an airliner, do you scan the passengers for members
of a certain ethnic group? Would you welcome into your family someone
of another race? After Timothy McVeigh bombed the Recognizing and admitting racial bias is
the first step in minimizing the injustice caused by it and every
journey starts with just one step. |
