Law Would Require Shorter Criminal Sentences for BIPOCs

It’s the wacky world of American race relations.

Credit Image: © Mark Hoffman-POOL via ZUMA Press Wire

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You probably missed it, but there is a bill working its way through the California State House that would require judges to take race into consideration when sentencing criminals. That would be to “rectify” racial bias and reduce the “disparate impact” of the justice system.

AB 852 was introduced on Valentine’s Day this year, passed the California lower house, and is now in the Committee on Public Safety in the Senate. Before I tell you about the bill, meet the sponsor: Reginald Jones-Sawyer, who represents the Los Angeles district that includes the corner of Florence and Normandie, for those of you who know what that means.

He was the president of the Black Alumni Association of the University of Southern California, is a member and former Chairman of the California Legislative Black Caucus, and is chairman of the Select Committee on the Status of Boys and Men of Color. He is also a member of the California reparations taskforce that just recommend that the state pay every eligible black Californian at least a million dollars.

Mr. Jones-Sawyer’s bill is only two sentences long. Here’s the first one: “It is the intent of the Legislature to rectify the racial bias that has historically permeated our criminal justice system as documented by the California Task Force to Study and Develop Reparation Proposals for African Americans.”

The justice system is biased. We know that because the reparations task force on which Mr. Jones-Sawyer serves says so.

Its final report is 1,065 pages long, but it has a simple way of proving “racial bias:” Any difference in outcomes between blacks and whites is bias.

Blacks are not criminals. They are “criminalized.” “This criminalization of African Americans has resulted in a criminal justice system that, overall, physically harms, imprisons, and murders African Americans more than other racial groups relative to their percentage of the population.”

This starts early: “The treatment of African American youth as criminals in California begins at an early age when they are in school.”

This results in an otherwise inexplicable fact: Although blacks are just 15 percent of the American population, they are 41 percent of the children locked up in juvenile detention.

And so on. All proof of bias.

Here’s the second sentence of AB 852: “Whenever the court has discretion to determine the appropriate sentence . . . the court presiding over a criminal matter shall consider the disparate impact on historically disenfranchised and system-impacted populations.”

Here lies the genius of Mr. Jones-Sawyer. “Disparate impact” can be unconstitutional, and he has sure found it in the justice system.

The legal concept of disparate impact goes back to a 1971 US Supreme Court decision called Griggs v. Duke Power. The problem before the court was that deliberate discrimination in hiring had been banned in 1964, but deliberate discrimination is hard to prove.

Tricky white people might conceal their bad intentions. They might even discriminate unintentionally. So, the solution was this: If there was a qualification for a job that protected classes – especially blacks – were less likely than whites to meet, then requiring that qualification had a “disparate impact,” and it was assumed to be discrimination.

Just about any real test or qualification for a job has a “disparate impact.” That’s because there are almost no skills or qualifications that blacks are more likely to have than whites.

Playing basketball seems to be an exception. But if you have to pass a test to become a schoolteacher, for example, you can expect whites to be more likely than blacks to pass it. That’s disparate impact.

If the police department is hiring and it requires that all candidates who are veterans have an honorable discharge, more blacks than whites will fail to meet that requirement, because they are more likely to have bad discharges. Disparate impact. Even if you, as the employer, have no desire to discriminate, your hiring standard discriminates. And the reason it discriminates and has a disparate impact, is because white people, somewhere, at some time, discriminated against blacks and made them less qualified.

As the court said, lower black qualifications are “directly traceable” to racism. They were therefore not the fault of black people.

This sets rules: Once a black can show that a job requirement has a disparate impact, it’s assumed that that’s illegal discrimination. The employer must then prove that the test or qualification is absolutely relevant to doing the job, and not something only marginally related but has the effect of keeping blacks out. Intentions don’t matter. The test or requirement has to measure what has come to be called a “bona fide occupational qualification,” or BFOQ.

Tests to become a schoolteacher invariably have a disparate impact, but they are OK because most of them – not all – are found to test a BFOQ, that is, they test the things teachers have to know.

When it came to hiring police officers, rejecting anyone with a dishonorable discharge was a traditional, common-sense way to keep out bad apples. It had nothing to do with race. It was standard practice in Southern police departments at a time when they legally excluded blacks, so the only people the rule kept out were white.

However, under disparate impact law, an honorable discharge was not considered a BFOQ for police work. It had an illegal disparate impact, so you could no longer use that standard to keep out bad apples – of any race.

So, how does “disparate impact” apply to criminal justice? As we saw in the reparations report, any time blacks are arrested or jailed more often than whites, that’s “disparate impact” and therefore no good. The report ignores high black crime rates.

And the genius of Mr. Jones-Sawyer’s bill is that that’s exactly how disparate impact is supposed to work! Crime rates don’t matter. Let’s say you set a rule that says anyone walking around in your town must refrain from killing people. That rule has a disparate impact, because blacks are more likely than whites to kill people. But remember: According to Supreme Court-sanctioned disparate impact theory, that’s not their fault! Their inability to meet your standard is “directly traceable” to racism.

They act the way they do only because white people, somewhere, at some time, discriminated against them. Your rule for who gets to walk around in your town is, on its face, discrimination, and you have to prove it’s justified.

So, what is the equivalent of a BFOQ for your rule? We might call it a BFCQ – a Bona Fide Civilizational Qualification – or a standard that is necessary for a civilized society. And you could surely convince a court that civilization requires that we can’t have killers walking around loose.

But what’s the BFCQ for laws against vagrancy, public drunkenness, shoplifting, and jumping a subway turnstile?

Those laws have disparate impacts, but are they necessary for civilization? A lot of cities have decriminalized that behavior only because enforcing the law has a disparate impact. Cities don’t use an explicit BFCQ test, but it’s implicit. If laws against shoplifting disproportionately penalize blacks, we have to decide if civilization really requires those laws.

Under Supreme Court precedent, there’s no reason blacks couldn’t [[0:18 – 0:32]] require a BFCQ to justify any legal prohibition: prostitution, gambling, tax evasion, even murder. Is the prohibition really necessary – in legal terms, is it narrowly tailored – to preserve civilization?

Mr. Jones-Sawyer’s bill is about sentencing. AB 852 says the judge must consider disparate impact so as to “rectify racial bias” every time he has any leeway in handing down a sentence. How’s he going to do that?

Let’s say a judge sentences a black man to 10 years in the big house for his third conviction for armed robbery. Remember: Disparate impact is “directly traceable” to racism in society, so it’s not blacks’ fault that they are so much more likely than whites to be third-time offenders.

AB 852 says sentencing must consider this.

So, what’s the BFCQ that justifies that 10-year sentence? Is 10 years the “narrowly tailored” penalty necessary to preserve civilization? A defense lawyer could demand a detailed BFCQ explanation every time a judge sentences a black or Hispanic. But not when he sentences a white criminal because whites are not protected. They’re not a “historically disenfranchised and system-impacted population.” In practical terms, I don’t see how this law can mean anything but demonstrably lighter sentences for blacks. Do you think I’m being fanciful? How else can a judge prove he complied with this very clear law?

AB 852 is supposed to protect BIPOCs, but there are other groups that can claim to be “disenfranchised” and “system-impacted.” Women. Homosexuals. Muslims. Illegal aliens. For example, women are a lot more likely to break laws against prostitution or abortion. That’s disparate impact, your honor.

Will AB 852 become law? The vote in the house was a perfect partisan split. Every Democrat present voted for it, and every Republican voted against, but since there are 62 Dems and only 18 Republicans, the bill sailed through, 58 to 13.

The California Senate has been Dem-dominated ever since anyone can remember, even more so than the house: 32 to 8.

So, of course, it will pass the bill, and when Governor Gavin Newsome signs it, he will be a courageous moral and legal pioneer.

As someone named Alisa Tiwari explained in the Yale Law Journal, “Criminal-justice reform—and police reform more specifically—is not understood to include disparate-impact principles.”

Not until Mr. Jones-Sawyer brilliantly included them.

What will deliberately shorter sentences for blacks and Hispanics mean? More black and Hispanic criminals back on the streets. That means enforcing the law will have an even greater disparate impact on them. Will that mean even shorter sentences?

Welcome to the wonderful, wacky world of American race relations.