Judges, Racism, and the Problem of Actual Innocence

The facts and data are in and the conclusion they compel is bleak: the American criminal justice system and its showpiece, the criminal trial, harbor at their core a systemic racism. For decades, criminologists, law professors, sociologists, government statisticians, and others have been collecting and collating data on crime, punishment, and incarceration in the United States. These intrepid scholars have looked at crime, criminals, and the justice system from all angles—the race of defendants and victims; the relationship of poverty to criminality; severity of crime; severity of punishment; incarceration rates for different racial groups; sentencing and sentence disparities; and so on. When this information, reflecting thoughtful examinations of crime and incarceration statistics over forty years, is combined with the results of recent investigations into the tragic phenomena of the erroneous convictions of actually innocent people, it becomes apparent that something is drastically broken—especially relative to race—within our criminal justice system. Judges may have theories and political philosophies about everything from the maldistribution of wealth and resources in this country and the ludicrously low poverty line defined by the government ($18,600 for a family of four), but we are powerless as judges to do anything about it. We can, however, bring an awareness of these problems into the courtroom. So with practical limitations in mind, it is worth exploring what an alert judge with an informed conscience can do to confront racism in the criminal trial. I hasten to add that I am mindful that more than 90% of the criminal accusations lodged in this country are resolved by plea bargains, but the fact that most prisoners end up behind bars without a trial does not vitiate my criticisms. I submit that seasoned defense attorneys—whether members of the private bar or public defenders\u27 offices—and their clients are either consciously aware of or intuit the problems and defects of the criminal trial I discuss in this essay, and they make their decisions within the shadows of these problematic realities