Blind Charging
By Albert B. Kelly
I love the concept within our criminal justice system that
justice is blind and if the reality of what actually happens is far from that
ideal, I still think it’s a noble and righteous thing worth aspiring to. The
love of this ideal is why I was excited to learn from various news accounts that
San Francisco District Attorney George Gascon is launching an effort to try and
remove implicit bias from the process of first deciding whether or not to
charge someone with a crime and secondly, if charges are warranted, removing
bias in deciding what specific charges to bring, i.e. “blind-charging”.
To understand why this matters, it is necessary to
understand what implicit bias is and the role it plays in society. According to
Ohio State University’s Kirwan Institute for the Study of Race and Ethnicity,
implicit bias refers to “the attitudes or stereotypes that affect our
understanding, actions, and decisions in an unconscious manner.” The key here
is that the bias is an unconscious bias and not something a person is actively thinking
about- which is arguably the most destructive type.
Implicit bias is how a human resources department in a
company that prides itself on diversity and nondiscrimination somehow fails to
schedule job interviews with applicants named Lakisha or Deiondre even though
Lakisha and Deiondre might have stronger resumes than those submitted by the
Allison’s and Tanner’s of the world. Implicit bias might be the reason why Luke
or Molly gets referrals to a specialist while Malik and Jazmine get
prescriptions and on their way out the door.
In some instances, our garden variety implicit bias is
merely insulting but when it comes to the criminal justice system, implicit
bias can be the difference between freedom and a life behind bars and depending
on the circumstances, life and death. That’s why San Francisco’s blind review policy
is critically important for all jurisdictions as we continue to struggle with what
“justice for all” looks like in the 21st century.
According to an article in the Los Angeles Times, the bias
mitigation review program uses software created by Stanford University that
removes references and certain identifiers in police reports such as an
individual’s name, race, ethnicity, geographic locations, and other such
details so that focus of prosecutors is strictly on the alleged behavior. Some
things such as photos and videos software can’t anonymize and my understanding
is that it won’t be used initially in homicides, sexual assaults, domestic
violence cases, and use-of-force investigations but it’s a step toward justice.
Yet even with its limited applications, bias mitigation
reviews can still be impactful in pushing back against implicit racial bias that
shapes too many outcomes. For example, a 2013 review of 50 years’ worth of
studies on racial disparities in bail practices entitled Give Us Free’: Addressing Racial Disparities in Bail Determinations
found that African Americans are subject to pretrial detention far more
frequently and with higher bail amounts than white people facing similar
charges with similar criminal histories.
The findings were the same for all regions of the country
and were consistent across both federal and state level cases. Since the
offenses involved were the same and the criminal histories of the alleged perp were
similar, the only thing that could reasonably account for these disparities, at
least to my mind, would be implicit bias on the part of those involved with the
administration of justice. Not for nothing, but my guess is that such
disparities are also present when it comes to misdemeanor charges as well.
If I’m right about implicit bias, then one way to try and ensure
that justice is truly blind is to implement bias mitigation reviews at all
levels of the system. It’s elegant in its simplicity and perhaps the best part is
that it doesn’t require throwing ungodly sums of taxpayer money at a possible
solution- it just requires a willingness to view information and data from a
place of forced neutrality.
While prosecutor’s offices across our state could invest in
software to anonymize information contained in police reports as was done in
San Francisco, it is also true that a box of “Sharpies” could just as easily
redact specific information and data from a standardized protocol. It’s
admittedly low tech, but if you’ve ever made a FOIA request and gotten back a
half blacked-out page, you know it works.
Let’s make blind-charging standard practice; all it takes is
the willingness…and a box of Sharpies.