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Excerpted From: The Task Force 2.0 Research Working Group, Race and Washington's Criminal Justice System: 2021 Report to the Washington Supreme Court, 57 Gonzaga Law Review 119 ( 2021/2022) (114 Footnotes) (Full Document)

WashingtonCourtsAt the outset, it is important to make clear what this report is and what it is not. Task Force 2.0 includes many organizations and individuals. It developed a process by which the Research Working Group was tasked with drafting research memoranda to update the work of the previous task force to provide a more complete picture of race disproportionality in Washington's criminal justice system and to identify, where and when it could, the extent to which those observed disproportionalities were not justified by differential involvement of individuals of different racial/ethnic groups in crime commission. The process allowed for input and robust involvement by stakeholders in all of the different working groups, including the Research Working Group.

This report is the product of that process. But at the end of the day, it is the work of the Research Working Group. Thus, the listing of organizations and individuals in Task Force 2.0 does not indicate endorsement of each statement or report finding.

This report was intended to be accompanied by a full set of recommendations from the Recommendations Working Group. It does not. Late in the process, a concern was raised that proposed recommendations should be vetted with more stakeholders. We have extended the process for consideration of recommendations. It is also probable that consensus will not be reached on everything, in which case majority and minority positions may issue for certain recommendations. This process is under way, and Task Force 2.0 is committed to providing its full set of recommendations later this year.

This report focuses primarily on the treatment and experience of adults in the criminal justice system. A separate subcommittee, in some ways a task force within the broader task force, examined race and the juvenile justice system and will issue its findings and recommendations later this year.

This report focuses on race and not on the intersection of race and gender. There are important limitations to the chosen focus, including that the experiences of women of color in the criminal justice system may be obscured, and the experiences of certain men of color, for example, Black men, may not appear to be as severe because what they experience is considered relative to the entire Black population instead of to the subset of the Black male population. This report is offered as a complement to the just-released 2021: How Gender and Race Affect Justice Now: Final Report issued by the Washington State Gender and Justice Commission.

The 2011 Preliminary Report, issued by the previous task force, for the most part failed to examine or report disproportionalities as experienced by Indigenous people. Though additional work remains to document and understand fully these disproportionalities, we begin by highlighting our findings of the disproportionalities experienced by Indigenous people.

Indigenous people, in comparison to non-Hispanic White people,

• were killed at a higher rate by law enforcement (3.3x);

• were more likely to have force used against them by law enforcement in 3 of the 4 cities examined (2.9x, 5x, 1.3x - 2x);

• were stopped more frequently by law enforcement in both cities examined (5.8x and 2.6x);

• were searched more frequently in the two cities examined as well as by the Washington State Patrol;

• were arrested more frequently in all four years examined (2017, 2.3x; 2018, 1.7x, 2019, 2.6x; 2020, 2.6x);

• received felony sentences at a higher rate in the three years examined (2018, 1.5x; 2019, 1.5x, 2020, 1.7x);

• bear a disproportionate per capita share of legal financial obligations; and

• are incarcerated at a higher rate (3.7x).

The persistence of this disproportionately through different encounter points in the criminal justice system may come as a surprise to some; to others, these figures may put numbers to what was already well known to Indigenous people and Indigenous communities.

Below are some additional key observations about race disproportionality and disparity in Washington's criminal justice system. The lack of consistent data collection on Latinas/os makes it difficult to determine the existence and extent of disproportionality. Where possible, the Research Working Group reports figures for that population, but with the exception of certain data sets, such as police killings for which there is more complete and accurate information, we do not have a lot of confidence for most data sets.

Stops. In the jurisdictions examined, racial minorities tend to be stopped disproportionately. Studies of select jurisdictions in Washington have found that certain racial minorities are stopped more frequently than similarly situated White people.

Searches. In the jurisdictions examined, racial minorities tended to be searched disproportionately, even though research shows that racial minorities who are searched are less likely to possess narcotics or weapons than White people who are searched. Because discretionary searches ought to be driven by legitimate criminal justice reasons (likelihood of finding contraband, whether narcotics for drug violations or weapons for officer safety), the fact that disproportionality persists in the face of what is known about “hit rates,” suggests strongly that race is a factor in searches.

Use of Force. In the jurisdictions examined, racial minorities, with the exception of Asian Americans, are more likely to be the victim of police use of force. It is very important to note that with regard to the lethal use of force by police, because disaggregated ethnic information is available, individuals who are Native Hawaiians and Other Pacific Islanders are 3.3 times more likely than a White person to be killed by police.

Arrests. Black and Indigenous persons are consistently arrested disproportionately, whether measured by relative or comparative ratios. This might be expected given the upstream disproportionalities of stops and searches. Observed disproportionality varies in significant ways for different crimes, with disproportionality for Black persons being greatest for robbery and the lowest for drug crimes. Though disproportionality for drug offenses may be lower than for other offenses, it remains high, with Black people arrested for drug offenses at a comparative ratio more than 2 times that of White people, despite consistent findings that Black and White people use and sell drugs at similar rates.

Convictions. As measured by all felony sentences in 2018, 2019, and 2020, Black people were 2.7 times more likely to be convicted than White people in each of those years. Indigenous people in those same years ranged from being 1.5 to 1.7 times more likely to be convicted than White people. There also appears to be additional disproportionality in the punishment given for felony sentences for certain kinds of offenses, where White people are slightly more likely than others to be sent to jail or receive an alternative punishment instead of being sent to prison.

Legal Financial Obligations (LFOs). Black persons, Indigenous persons, and Latina/os are sentenced to LFOs more frequently and at higher rates than White persons and Asian Americans/NHOPIs. Even after controlling for relevant legal factors, Latina/os are sentenced to significantly higher LFOs than similarly situated White defendants.

Incarceration Sentences. An examination of all fiscal year 2019 felony sentences for non-drug offenses revealed that BIPOC defendants on average received longer sentences than White defendants as measured at different offense seriousness levels. For the two most serious offense levels, BIPOC defendants received significantly longer sentences than White defendants. In addition, disproportionality was pronounced for BIPOC defendants with lower criminal history scores who received longer sentences than White defendants for the same offense levels. Stated differently, Black people who commit very serious crimes are treated more harshly than White people who commit very serious crimes; Black people with low criminal history scores are treated more harshly than White people with low criminal history scores.

Death penalty. In Washington, a Black defendant in a capital case was 4.5 times more likely to be sentenced to death than a similarly situated White defendant.

Disproportionate incarceration. When viewed over time, it appears that Black/White comparative disproportionality has improved since 1980 when a Black person was 14.1 times more likely to be incarcerated than a White person. In 2005, this had dropped to 6.4, and in 2020, to 4.7. This looks like great progress. However, it is important to understand how this “improvement” was achieved. From 1980 to 2005, the Black rate of incarceration nearly doubled, from 1,342 Black people incarcerated per 100,000 Black people to 2,522 per 100,000. But the comparative disproportionality ratio dropped because the rate of White incarceration more than quadrupled, going from 95 White people incarcerated per 100,000 White people to 393. Then, from 2005, the drop from 6.4 to 4.7 comparative ratio came about because the Black rate of incarceration dropped from 2,522 to 1,267 per 100,000 Black people, while the White rate dropped from 393 to 269. Because the Black rate dropped more than the White rate, the comparative disproportionality ratio decreased. But this figure, 4.7 times, remains substantially greater than the recent comparative Black/White disproportionality ratios for felony convictions the last few years, 2.7 times.

The 2011 Preliminary Report found that facially neutral policies resulted in disparate treatment of minorities over time. It also found that disproportionality was explained in part by the prevalence of racial bias-- whether explicit or implicit--and the influence of bias on decision-making within the criminal justice system. It found 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.

The Research Working Group of Task Force 2.0 finds, likewise, that facially neutral policies and bias continue to operate to contribute significantly to the observed disproportionalities. Certainly, some things have improved. A bright spot, if it can be called that, is that the Black rate of incarceration has dropped from 2,522 per 100,000 in 2005 to 1,267 per 100,000. But race and racial bias continue to 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.

[. . .]

As we did in the 2011 Preliminary Report, we have presented evidence of race disproportionality in the criminal justice system. Our examination of the data leads us to repeat the conclusions we reached ten years ago. In 2021, race still matters in ways that are not fair, that do not advance legitimate public safety objectives, that produce racial disparities in the criminal justice system, and that undermine public confidence in our legal system.

The question and challenge, then and now, is what will be done to remedy these problems.

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