Ensuring the promise of "Equal Justice Under Law"

DISPROPORTIONATE prosecution and imprisonment of minorities haunts our criminal-justice system. Too often we see confusion over why minorities are overrepresented among criminal defendants. Studies by University of Washington researchers, which were vigorously debated this year by the 9th Circuit Court of Appeals in a lawsuit alleging racial bias in the state's criminal-justice system, are shedding light on the contentious question.

Research shows that disparate minority imprisonment in Washington is mainly due to problems in how justice-system actors exercise discretion rather than higher minority involvement in crime. The problems of discretion occur at numerous junctures, leading to racial disparities in discretionary decisions, from whose car to search during the investigation stage to what sentences defendants receive.

Racial disparities in discretionary decision-making have gripped national as well as state attention, spotlighting such practices as disproportionate targeting of minorities for investigative stops. A new generation of research has shown how unconscious, "implicit" racial biases shape who are viewed as more suspicious and more dangerous. This leads to a disproportionate targeting of young black and Hispanic men.

Which laws we choose to enforce as priorities — and how stringently — can also lead to racial disparities. An infamous example is the disparity in how we enforce, and sentence for, possession of crack compared to powder cocaine. Both are dangerous drugs. In terms of how these drugs have plagued our communities, however, the crude sense on the streets is that cocaine is the white drug and crack is the scourge in communities of color.

Infamously, federal sentences for crack were dramatically more severe than sentences for powder cocaine, leading to sharp and severe racial disparities. This notorious disparity was not remedied until this autumn when President Obama signed the bipartisan Fair Sentencing Act aimed at lessening some of the disparity.

In Seattle, research has also found racial disparities due to decisions about which laws to enforce. UW researchers found that Seattle police disproportionately arrest blacks and Latinos for drug offenses. The racial disparities stem from organizational practices, including a focus on targeting drug-enforcement discretion on crack cocaine.

Our three law schools are engaged in a newly established "Race and the Criminal Justice System Task Force" in partnership with Washington State Access to Justice Board Chair and King County Superior Court Judge Steve Gonzalez. We are building a broad-based coalition with partners from the community at large, legal profession, minority bar associations and justice system to examine the issue of race and the criminal-justice system. The task force's objectives will include deepening research and education in this important area and making recommendations for structural reform of our state's and our nation's criminal justice systems.

As a nation, we hold ourselves to the promise of "Equal Justice under Law." We take pride in the fact that our legal system is committed to the fair and impartial treatment of all who seek its protection. The same rules and procedures should apply regardless of an individual's color, ethnicity, social or economic status, gender, disability status or other personal or social characteristics. But both experience and research show that, in many ways, the rules are applied differently based on these characteristics.

We know that controversy can crystallize into constructive, continued research and education so people better understand the realities of the system — and how to fix it.

George Critchlow is interim dean of the Gonzaga University School of Law; Mark Niles is dean of Seattle University School of Law and Dean Kellye Y. Testy is dean of the University of Washington School of Law.