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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  1. says

    And it also goes back to whether white people or PoC are more likely to be even charged for a crime. I havent fully read The New Jim Crow but my understanding is that black people use drugs at similar rates as white people but are charged and procecuted at much higher rates than white people. The laws are already stacked against PoC because they are enforced by primarially white people. To make them explicitly target PoC is not only racist but horribly frightening.

    Excelent piece btw.

  2. John Horstman says

    People of color use drugs at somewhat lower rates than White people (for example, see this study) – one possible explanation is that economic pressures from disparities in group-average income give White people a greater portion of disposable income to spend on recreational drugs. Another possibility is that White people are aware that they are much less likely to be charged or prosecuted for possession or use of illegal drugs, reducing legal pressures against use and increasing group-average use rates. There are likely other influencing factors (less policing generally and therefore specifically of distributors in predominantly-White neighborhoods, other stuff I can’t think up off the top of my head) that all contribute to varying degrees.

  3. Jen says

    “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.”

    Assuming judges are appointed when they are about 50 years old, a 2012 appointee would be born in the 1960s. At this time, the Canadian population was about 96% white. ( Thus the pool of candidates with a Canadian legal education and 20+ years experience practicing law in Canada would be expected to be predominately white based on the data.

  4. interrobang says

    I disagree. I’d put large amounts of cash on “more racist than average, but better able to hide it in public than most ex-Reform assholes.” He’s significantly more misogynist and generally bigoted, so why assume he’s somehow mediocrely racist?

  5. tariqata says

    I think there’s two key points in the Globe article that speak to that argument.

    First, the appointments process itself is incredibly opaque, so it’s very difficult to monitor whether ‘minority’ candidates are being considered at all, and if so, how seriously. If there were more transparency in how candidates for judicial positions were selected and evaluated, we could be more confident that non-white candidates are being considered fairly.

    Second, according to the Globe & Mail article, women are fairly well-represented because a concerted push was made to appoint women to judicial roles, even though the pool of women lawyers was also quite small compared to male lawyers. There may be fewer lawyers who are also ‘minorities’ who qualify for a judicial appointment, but if they were considered in an unbiased manner, with a commitment to working to increase diversity, it seems likely that there would be more non-white judges appointed. (And I’d add that while I have no doubt that in some parts of the country, you might be unlikely to find a qualified candidate who is also a visible minority, that’s not the case across the entire country.)

  6. karmakin says

    I have a bit of a different view on this, although I don’t disagree with the problems of racially “blind” judges. I think a lot of it has to do with how the legal system is set up, and in terms of the access that various “criminals” have to various crimes.

    It’s the whole thing of, if you steal a TV they’ll throw you in prison. If you steal a TV factory you MIGHT get probation, although chances are what you did isn’t even a crime. Even taking the most base view on this (note. I don’t actually think this is the case) that people who are looking for “shortcuts” for success, if you’re rich (and being a white male doesn’t hurt, lets be honest) then you can do all sorts of legal (or considered to be barely illegal…white-collar crime and all that) things to steal money. If you’re poor, not so much.

  7. prtsimmons says

    Great post. I don’t know how you managed to not become utterly enraged at the commenter. You hear the same argument about incarceration and poverty rates amongst Native peoples in Canada. There is a similar argument (relating to visible minorities and women) about affirmative action and minority hiring quotas. Someone will say that they disagree with affirmative action, because everyone should be judged solely on merit. Then you tell them that the white male applicants were hired at a much higher rate than other applicants, and they just clam up. They are implying,without explicitly stating it, that in a fair competition more white males end up with the job, presumably because they are better qualified. (I’m not saying that every implemetation of affirmative action or minority hiring quotas has been a good thing but at least it acknowledges the existence of racial bias in the hiring process.)

  8. says

    I don’t know how you managed to not become utterly enraged at the commenter

    Part of it is my general inflappability. Part of it is the fact that, when responding to comments, I have lots of time to collect my thoughts before hitting ‘send’. But a good chunk is the fact that stupidity doesn’t anger me so much as it bores me. The commenter was making really LAZY and BORING arguments – nothing I hadn’t heard a million times before. Plus it’s more fun to mock than it is to fight.

  9. says

    I dont want it to seem like I didn’t know that it wasn’t at a lower rate. I did. I chose my phrasing because from what I know there is not a large difference in the rates and I couldnt state specifics off the top of my head (especially in multiple countries) so I went with similar. If there is a signifigant difference in the rate of usage then I am misinformed. I can’t look at the study while working from my phone but I will give it a look later.

    Another causal factor is that many jobs require a drug test to be employed and may random drug test employees. Most highpaying jobs (like those filled with white people) do not have the same drug testing requirements so recreational drug use can go easilly unnoticed.

  10. mynameischeese says

    I envy your patience. I wish I could hire you out whenever I have to deal with people who make lazy/boring/wrong arguments. Like I could be there with someone who’s making a lame argument based on the just world fallacy and then I could be like, “Just a second there…” And bring you up on skype to straighten them out and ridicule them for me. If this service existed, I’d pay for it.

  11. says

    I’ve heard they jail people for crack but not coke in the US because more black people use crack and more white people use coke. Or rather, there’s a convenient correlation. I forget exactly if it’s coke for white people, but the point is: same drug, different forms, they arrest people way more for one (cheaper?) form.

  12. says

    Oddly enough, I came across an 2-year-old piece of news that the Obama Justice Department lowered the sentencing disparity from 100:1 (crack:powder) to 18:1.

  13. says

    You’ll get better at it once you /have/ seen the same kind of stupidity many times, and experiment with what works on them and what kind of effort preserves your own mental health. I figure it’s good practice because the same arguments happen IRL or among friends, where one really does want to address them.

  14. Jen says


    Regarding comparison with gender equality, note that only about 1/3 of Canadian judges are female ( So even with a push to get woman lawyers appointed to the judiciary, this system has to yet to achieve a gender ratio proportional to the population which is half female.

    Furthermore, the number of female judges appointed does not greatly exceed the pool of female lawyers in the suitable age bracket for becoming a judge. In 2006 about 33 per cent of Ontario lawyers between the ages of 45-55 were woman ( – first graph Percentage of Lawyers who are Woman by Age, Ontario 1971-2006) which is comparable to the number of female judges in Ontario.

    Now look at the second graph in the LSUC Report: Percentage of Lawyers who are Members of a Visible Minority Group by Age, Ontario 1971-2006. While 11.5% of all Ontario lawyers were members of a visual minority group, only 6 per cent of lawyers between the ages of 45-55 were members of a visible minority group (2006 data). Note that visible minorities account for 7% of Ontario judges (,

    Considering other parts of Canada are not as diverse, the percentage for all of Canada is likely to be lower. (In 2002 in Quebec, only 4% of all Lawyers in Quebec identified as a member of a visual minority group ( – the percentage of those in their 40s and 50s is likely to be very low.)

    Anyone making judicial appointments in Canada will have difficulty reflecting the population given the low numbers of available diversity candidates in their late 40s and 50s. However, it appears appointments are being made that reflect the diversity in the available pool of candidates.

    The good news is that given these data, the expected increase in numbers of diversity candidates in the target age groups for judicial appointment should greatly resolve the problem over the next 10-20 years.

  15. says

    Anyone who has been exposed to a bit of first year Psych knows that the environment plays such a huge effect on people’s behaviour and attitudes that it’s irresponsible to make inferences about a population’s “genetic tendency to criminality” from their incarceration rates. Dude needs to look up the fundamental attribution error.

  16. smrnda says

    Here’s an observation from the states. The town where I live in has a university, and towards the north end of town in basically the area where Black people live. Whenever I go through the Black neighborhoods I notice that I see lots of police cars parked all over the place; the cops do patrol the university but their relationship with college students are probably a lot more chummy than their relationship with the average Black resident of the town.

    I’m thinking that sentencing might already be skewed because the police are more likely to be putting Black people under surveillance to begin with. I’m sure plenty of college kids do drugs but are just not being watched as heavily. The other thing is you can end up doing jail time simply because you don’t have access to a great attorney or you can’t pay a fine or be able to come up with the fine plus hours of ‘community service’ (which means, if a white kid spends a half hour tutoring some students that’s community service, but if a Black kid is raising their younger siblings that’s not community service.)

    The system is racist on all levels in my opinion.

    On affirmative action, I think it may also be a ‘stand-out effect.’ A white male sees minorities or women get promoted and he scrutinizes their merits heavily looking for bias, but he’s not noticing the incompetent white guys who got ahead.

  17. ... says

    By making race a taboo subject, we have set up a situation where people would rather ignore it than discuss it


    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.

    I’d love to know which black people he’s talking about. I’d feel safer wandering around the Tanzanian night than the Glaswegian one.

  18. Katalina says

    Yep, it was the sentencing guidelines. For much smaller amounts of crack, the sentencing minimums were about 100:1, and that is generally agreed to be due to its alleged higher popularity with lower income and predominantly black populations. Powder cocaine is more expensive and the penalties are even still a lot more lax. 18:1 is still pretty insane for a different form of the same drug.

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