Systemic Racism in the System: What PD’s Can Do to Change It

During my 29 years of experience in criminal defense, I have not been blind to the racial bias baked into the system. But seeing the actual data has brought home the stark clarity of what can only be called racism. At every point in the criminal justice system where there is some level of discretion, black people are treated more harshly. It is not the result of a few individuals deliberately acting in racist ways. It is everywhere and it is woven into the very fabric of the system itself. The data is there for anyone to see, uncomfortable though it may be.

Here in Multnomah County, where the city of Portland is located, we have recently had cause to grapple with such uncomfortable truths about systemic racism. A racial and ethnic disparity report (the RED report) was recently completed by the County. The report is a study of the journey individuals make through Multnomah County’s justice system and it demonstrates that Black people will experience significantly more punitive treatment than Whites. Blacks are more than four times as likely as Whites to be arrested and referred for prosecution. They are more likely to be given prison sentences and less likely to receive conditional discharges or fines. Research elsewhere shows this disparity is highly unlikely to be explained simply by greater criminality among the Black population.

Multnomah County is one of 20 jurisdictions around the country selected to participate in the Safety & Justice Challenge, supported by the MacArthur Foundation. The Challenge is designed “to change the way America thinks about and uses jails” and is intended to prompt jurisdictions to reduce over-incarceration and create a fairer justice system. The RED report was produced as a result of Multnomah County’s participation in the Challenge and similar reports exist for other participating jurisdictions.

The discriminatory treatment of Black people and other communities of color is fueling righteous anger, channeled into national movements such as #BlackLivesMatter. It has been exposed by the US Department of Justice investigation into the police department in Ferguson, Missouri, that found officers violated the constitution and engaged in racially biased practices as a matter of course.

I find it impossible to conclude anything other than that Blacks in America are effectively subject to a separate and grossly unequal criminal justice system. As – for the most part – each of the institutions that make up our justice system is following the law, what do we have other than a legal system that enforces discrimination?

I have worked as a criminal defense lawyer for most of my 32 years as a member of the Oregon State Bar. Of all the responses I could feel, such as anger or frustration or outrage, the one that is most acute is shame. When I look at the numbers and the outcomes this new study reveals, I feel ashamed. I could try to excuse my own role with the disclaimer that I’m one of the good guys: my job is to help defendants. But that would be a copout unless I committed to examining all practices, including defense practices that may accept or perpetuate this problem.

In one way, laws and practices from the Jim Crow era were easier to change. Explicit discrimination, plainly encoded into the law could not be denied by anyone. Today we are perpetuating separation between races through facially neutral laws enforced by people who consciously reject racism.

As we marked Public Defense Day last week, along with celebrating what we do, let us ask some tough questions of ourselves to examine what part we play in this and then ask all stakeholders to do the same. As Public Defenders we should call on all MacArthur Safety and Justice Challenge sites to release their RED reports. Then we should call on all jurisdictions to examine and document their own racial disparities.

We are fighting for justice for our clients and that means real fairness regardless of their race or ethnicity. We are on the front lines of opposing racial injustice day in, day out, and I believe we are making a real difference to our clients as individuals and as a check on the grosser iniquities of the criminal justice system.

Despite this, we who work within the criminal justice system, along with the other actors in the system, need to take unequivocal ownership of changing it. But we need to accept that we cannot come up with all the answers. Despite being well-meaning, we have helped to create this situation and we will not find the remedy alone. We must humbly listen to our communities, especially the communities most impacted by these practices. And then we must partner with them to build a justice system that follows the letter and the spirit of the law on equality.

Article photo courtesy of Oregon Justice Resource Center