Kalish: Racial Bias And Criminal Justice

Oct 27, 2016

The United States Supreme Court has begun its new term. And, in just a few weeks, they’ve heard arguments in three different cases involving racial bias in the criminal justice system.

The legal questions are pretty specific. Like, how far does the 4th Amendment reach? And when have 6th Amendment rights to effective counsel and an impartial jury been infringed? But, the factual circumstances leading to the cases should give anyone pause.

A trial attorney in a Texas death penalty case called a psychologist to testify that the defendant was statistically more likely to pose a future danger, because he was black. And this was the defense attorney.

In Colorado, a juror, who was a former police officer, told his fellow jury members that the defendant in the case must be guilty of sexual assault “because he’s Mexican, and Mexican men take whatever they want.”

And in Illinois, a black man, with what he calls a “history” with certain police officers, was arrested and jailed for a month. The officers had claimed that the man’s vitamin pills were ecstasy, allegedly knowing all the while that they were not. The city and those officers are now being sued for civil rights violations.

Hopefully, the Supreme Court will clarify the scope of these constitutional rights and victims will have meaningful paths for seeking redress. However, the ultimate goal would be to prevent these incidents from occurring at all.

Vermont has been taking some important strides in this direction. Attorney General, Bill Sorrell has convened a working group to explore how “Vermonters [have] been affected by implicit bias in interacting with law enforcement.” The working group met with law enforcement representatives on October 6th, and has held open forums in White River Junction, Burlington and Bennington.

The intent was “to hear the human stories behind statistics” and Sorrell hoped, in part, “to convey … how … training efforts [in implicit bias] will support fair, impartial, and effective policing throughout our state.”

I attended the meeting in White River Junction and, despite the small turnout, was moved both by those who told their stories, and by how seriously law enforcement seemed to be listening. There appeared to be a genuine commitment to confront and address the effects of unconscious bias in policing – as well as an understanding that you must first sow the seeds of trust in order to do so.