Shawn Vestal: Prosecutor’s semantic battle against equity undermines efforts to set a better course for justice

Two years ago, the investigative news organization ProPublica looked into the algorithms used by courts to assign risk levels to criminal defendants.

These standardized, often computerized, assessments are used to calculate whether a defendant is likely to commit another crime in the future. They are used in several states – including Washington – to inform decisions about bail amounts, release terms and other matters.

In theory, such risk assessments would be neutral, race-blind arbiters of justice. In fact, many jurisdictions adopted them to help eliminate racial bias.

But, as ProPublica and others have found, the algorithms are dramatically biased against people of color.

ProPublica’s investigation of two years worth of cases in Broward County, Florida, found that Black defendants were more than twice as likely to be incorrectly flagged as a high-risk to reoffend than white defendants, based on their subsequent actions. On the flip side, white defendants were more likely to be incorrectly rated as low risk.

Other investigations into risk assessments found that the scores, and the manner in which judges applied them, actually worsened racial disparities in some jurisdictions.

It’s hard to imagine a stronger, stranger example of the insidious ways that racial bias invades systems and organizations. Structural bias is not necessarily a result of overt, personal animus. It’s the way that systems and organizations produce biased results no matter what the individuals involved believe, because the systems are built on histories, patterns, assumptions and contexts that are woven through with bias.

This bias is thoroughgoing and, based upon statistic after statistic and study after study, indisputable. It’s the reason that advocates for criminal justice reforms, including the county’s Justice Task Force, are urging elected officials to adopt racial equity as a guiding principle for decision-making.

The Spokane City Council adopted such a principle last week. The Spokane County Commission, though, has become tangled in an absurdist semantic ballet over “equity” versus “equality” – the result of a determined campaign by Prosecutor Larry Haskell.

Over the course of several meetings, Haskell has insisted that adopting a nonbinding goal of racial equity would put a “thumb on the scales” of justice to benefit racial minorities. Along the way, he has also all but sneered at those who are “screaming,” as he put it, for racial justice.

He’s found a welcoming ear in Commissioners Al French, who objected to equity language because it makes him fear the prospect of reparations, and Josh Kerns. The county’s law and justice administrator, Maggie Yates, has been sent back to the drawing board to come up with different language, despite the fact that the task force, comprised of more than 30 elected officials, leaders from the justice system, and community members approved the original wording.

Haskell is on that task force. Only he and Justin Lundgren, assistant chief of the Spokane Police Department, voted against the equity goal back in January. Lundgren complained at the time that the equity principle did not do enough to examine root causes of disparities.

But Haskell has engaged in a campaign against equity that is bafflingly spirited. He’s tilting very hard against this windmill. He has told commissioners that adopting the principle would improperly exceed the constitutional guarantee of equal treatment under the law, and he dubiously suggested that commissioners might open themselves to future lawsuits if they adopt and then do not meet that nonbinding principle.

What’s especially strange about Haskell’s campaign is that he says he abhors the idea of putting a thumb on the scale of the justice. But the evidence shows that the scales are already full of thumbs, tilting against people of color.

Equity versus equality

Those working for racial justice argue it’s important to seek equity as a recognition of the continuing effect of past injustices and to take steps, where possible, to offset them. Applying an equal, neutral approach to groups with disparate backgrounds, contexts and problems only perpetuates those disparities.

This is not some radical notion. It’s widely endorsed by agencies, organizations, schools and leaders across society. We already apply an equity lens in many ways. Drug courts are an example – recognizing that addiction is a contributing factor to a lot of crime, we have an alternative in which offenders can satisfy their sentences by undergoing a closely monitored course of treatment. Such courts – which are not “equal” with regular criminal courts – have proven to be very effective in helping repeat offenders break the cycle.

Another example is the crisis teams formed by the police department to work in concert with mental health professionals – recognizing that some people will be better served with treatment than with incarceration. These teams are not “equal” to the response the department provides to criminal disturbances that do not involve people in mental health crisis.

Opponents of equity language say that our system of justice guarantees only equality – a neutral, race-blind application of the law. Haskell would have you believe that equity is a dangerous, unconstitutional expansion of that principle, and those who support it are seeking “more than equality” for people of color.

“Over many years, groups that have considered themselves discriminated against have asked for … the constitutional guarantee of equality,” Haskell told commissioners on July 21. “They did not feel they were being treated equally.

“Well, nobody is screaming for equality anymore,” he proceeded. “I’m certain that equity isn’t less than equality. You’re not going to ask for less than equality. So if you’re not asking for equality, then you’re asking for something more than equality and that’s where I get uncomfortable.”

Haskell, who wanted to be President Trump’s U.S. attorney for Eastern Washington, shows a clear disdain for anyone who would suggest that the justice system operates with less than neutral precision. Lady Justice, blindfolded, simply hands out her conclusions with pure impartiality. It’s an insult to those working in the system to suggest otherwise, he told commissioners.

“I’m a firm believer that however dire your circumstances are, committing a crime is still a choice,” he told commissioners.

Black people simply make more bad choices than white people would be the logical conclusion of Haskell’s argument. The personal choices of everyone else involved are irrelevant. From officers who decide who to pull over and who to arrest, to the prosecutors who decide which and how many charges to file and whether to agree to diversion programs, to the judges who make decisions about pretrial release and sentencing after conviction, to the people who built and implemented a computer program that attempts to predict the risk of future criminality – none of those choices play a role.

They’re all just cogs in a magnificently unified, disinterested, unbiased machine that produces justice.

It’s a strange argument for Haskell, in particular, to make.

Super-charger

Since taking office in 2015, Haskell has filed felony charges more aggressively and frequently than any other prosecutor in the state, while scaling back sending cases to drug courts. This is his thumb on the scale: His office files felony drug possession charges far, far more often than his peers.

Drug charges – and especially simple possession – are an area that many jurisdictions try to address via diversion programs that emphasize treatment. A statewide comparison in 2019 by The Spokesman-Review found that Spokane County has filed more felony drug possession charges than any of the other five largest counties in the state in the previous eight years – by a long shot.

Haskell’s office filed eight times as many possession charges per capita as King County in 2018, and more than double the rate of such cases in Pierce, Clark and Snohomish. That pace has continued since; overall, Spokane County prosecutors have filed more drug felonies and felony charges overall, by far, than other counties in both 2019 and so far this year, according to the Washington State Administrative Office of the Courts.

When he’s questioned about this difference, Haskell has acted as if he has no choice in the matter.

Over and over again, Haskell has said the laws are on the books, and he has no alternative but to enforce them the way he does. There is no such thing as prosecutorial discretion, to hear him tell it.

Which is not a remotely serious or honest claim.

Haskell’s choices have helped crowd our jail, and our crowded jail is particularly crowded with Black people and Native Americans. Our system, made up of individuals making choices that may or may not be biased, is producing a biased result.

The police and sheriff’s departments are arresting Black people and Native Americans at rates several times greater than that of white people. Researchers with the JFA Institute who studied our jail population last year found that Black people were jailed at 13 times the rate of white people in Spokane, and Native Americans were jailed at seven times the rate of whites. People of color also served longer terms, on average.

These disparities have increased in the past three years, the JFA said.

Widespread inequities

An honest examination of race and American justice should not leave anyone very concerned that we’re going to give Black people “more than equality.”

Black Americans are pulled over by police far more than whites, according to numerous studies. They are ticketed more and searched more (though white drivers are caught with more contraband).

People of color are the subject of pretext stops more than white people, and are “stopped and frisked” so much more than white people that it’s insane. Black arrests for marijuana possession far outstrip those for whites, though self-reported surveys show the groups smoke pot at similar rates.

And, of course, Black men are shot by police at a rate 2.5 times that of white men. If you narrow that to unarmed men, the rate of disparity is 3.5.

It goes on and on and on. The Washington Post’s Rodney Balko has gathered almost 150 studies showing these disparities at every stage and level of the system, in jurisdictions all over the nation.

A Florida study showed racial disparities in seat-belt tickets, and a Chicago study showed them in bicycle-lane tickets, and a Jacksonville, Florida, study revealed them in jaywalking citations. Cops send SWAT teams into minority neighborhoods more often than white ones.

Black people convicted of drug possession are five times more likely to serve a prison sentence than white people. They are less likely to receive a plea bargain that avoids jail, less likely to see their more serious charge dismissed in a plea bargain, and they serve, on average, sentences that are 20% longer than those served by white people convicted of the same crime.

Haskell surveys all of this – or more likely, does not – and concludes: Justice is blind. No thumbs on the scale there.

‘Think big’

The problem Haskell cannot see is manifestly visible. The fact that the commissioners have allowed him to all-but- singlehandedly persuade them to reject the task force’s recommendation that Spokane County set the goal of working toward racial equity is dismaying.

The good news is the rest of the world is moving forward while Haskell and French defend the system from the threat of equity. The City Council adopted equity as a guiding principle, and the Spokane Regional Health Department and Spokane Public Schools have taken similar stands.

The statewide Superior Court Judges’ Association recently took a stand on this matter that was unequivocal in recognizing the influence that structural racism has had, and the work that judges can do to try and correct that. In a letter to members dated Aug. 11, the president of the association, Judge Judith Ramseyer of Seattle, made it clear that the association recognizes that a system with structural bias cannot produce equal justice.

“(W)e know that laws, practices, and customs designed to oppress people of color have been adopted and compounded over decades to create a society that is structurally unjust,” the letter says.

Now is the time, the letter said, for the judges association to change attitudes and practices that contribute to the problem – including an effort to examine the court system statewide through a “racial justice lens.”

“Tinkering around the edges will not suffice,” Ramseyer wrote. “We have both the opportunity and responsibility to think big.”