Here come da judge…

This weekend this blog was visited by a rather unsavoury character who decided to take your humble narrator to school on why passing laws against black people isn’t racist. At first I was amused, much the way I would be watching a dog try to take a stick through the doggy door. It’s cute and entertaining in a pathetic sort of way, watching the poor thing struggle to achieve its goal. Unlike a friendly mutt, however, this particular commenter got progressively more unhinged as I refused to take him seriously, and he began lashing out. I quickly became bored, and left him to rage by himself in the dark.

One of the points that he was sure he had ‘got’ me on was the fact that black people are incarcerated at a much higher rate than white people. This proved, he asserted, that there was something wrong with black people that made them more likely to commit crimes. It’s just statistics, he claimed. The problem with his theory is that it is not supported by the evidence, or at least the evidence is not sufficient to justify the conclusions he draws. We know, for example, that racism often acts as a confounder in what appears to be a straight-line relationship. We also know that race can play an undue role in things like sentencing and presumed innocence, putting the weight of the judicial system disproportionately against defendants of colour.

This phenomenon is not necessarily because judges are ‘racists’ or because they have a grudge against black people or anything quite so simplistic. The issue is complicated, but one of the culprits is our inability to think critically about our own attitudes about race and racism. By making race a taboo subject, we have set up a situation where people would rather ignore it than discuss it. It happens to police, it happens to lawyers, it happens to judges, and it happens the next level up as well:

In the past three and a half years, the federal government has appointed 100 new judges in provinces across the country – and 98 of them were white. According to figures compiled by The Globe, the exceptions were two Métis judges appointed in B.C. and Nova Scotia. Only in the territories, where three aboriginal judges have been appointed since 2009, does the federal appointment process better reflect the community. The lack of diversity among judges raises searching questions in a country where one in five citizens belongs to a visible minority and where many people can expect to see a bench that does not reflect them.

Because I am so adversarial to the sitting government, I suppose it behooves me to make it absolutely clear that this is not me trying to score cheap points by calling Stephen Harper racist. I’m sure he’s well within the confidence interval for racism among middle-aged white male Canadians. My point is that it is fairly clear from the extremely lopsided ratio among appointees that whoever is responsible for judicial appointments did not look at their choices critically – they just went by who seemed ‘right’ for the job. Of course, when race issues live at the back of your mind (rather than the front), you end up making decisions that are influenced by systemic white supremacist attitudes without even being aware you’re doing it.

This establishes a very disadvantageous situation for people of colour (PoCs) facing judges who, on the balance, are quite ill-equipped to appreciate racial factors in the cases before them. Just as Mr. Leech’s comments revealed his deep ignorance about not only how his words would be heard by PoCs, but also the wildly evident privilege in which his sentiments were couched, it is not unreasonable to expect that a cadre of all-white judges would struggle with similar issues (although, to be sure, I would hope that anyone smart enough to be appointed to the bench would be a bit more intelligent than Mr. Leech). However, that’s not the only problem:

Juries formed from all-white jury pools in Florida convicted black defendants 16 percent more often than white defendants, a gap that was nearly eliminated when at least one member of the jury pool was black, according to a Duke University-led study.


In cases with no blacks in the jury pool, blacks were convicted 81 percent of the time, and whites were convicted 66 percent of the time. The estimated difference in conviction rates rises to 16 percent when the authors controlled for the age and gender of the jury and the year and county in which the trial took place. When the jury pool included at least one black person, the conviction rates were nearly identical: 71 percent for black defendants, 73 percent for whites.

It turns out that judicial decisions made in the company of all-white peers are biased against defendants of colour. The presence of even a handful of jurists of colour seems to make race more salient in the decision-making process. Salient enough at least to wash out the polarizing effects of an all-white jury. It is not unreasonable to imagine that an all-white bench would be subject to the same kinds of pressure. One cannot possibly expect all judicial appointees to have delved particularly deep into the topic of race, or to have it always on their minds (except for Aboriginal defendants, thanks to the recent Supreme Court ruling). As a result, PoCs lose out not due to anyone’s malice but due to the blind machinations of a headless racist system.

Now, this is a lot of nuance and fact to consider, and we know that this particular line of thinking is antithetical to the conservatism that my would-be interlocutor adheres to. He prefers the simple (and incorrect) explanation that black people are the authors of their own demise, and if they just learned to be good parents, they’d shuck off the disadvantage of their relative position and rise to the level of good, responsible white folks. The truth is quite a bit more complicated, and we “professional race whiners” (yes, he actually called me that – I couldn’t stifle my laughter, which was embarrassing because I was in a crowded airport) make such simplistic answers inconveniently convoluted with our “facts” and our “thinking things through”. I almost sympathize for my microencephalic adversary – all that cognition really does stress the brain.

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