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Wilson, researchers looking for bias in prosecutions

By Brian Hicks, Post and Courier

The perception of bias in the criminal justice system is pretty common.

In fact, it’s practically a stereotype that, if a white guy gets caught with a joint, he might get a fine … but a black man arrested for possession of the same joint could end up on probation. Or in jail. As the offenses get more serious, the disparity often becomes greater.

Ninth Circuit Solicitor Scarlett Wilson this week announced plans for a new study to identify any implicit bias in her office — and eliminate it. The solicitor has been collecting detailed data on 9th Circuit cases for five years and now that information, as well as ongoing cases, will be analyzed by a team of researchers led by the Justice Innovation Lab at Georgetown University.

This isn’t an audit that’ll collect dust on a shelf, Wilson says, it’s an effort to ferret out inequity. She says the results of the study will produce systemic changes in policy “not only on race equity but also on efficiency which affects all of us but most especially black and brown people.”

“We know that unconscious bias runs deep in every corner of this country — and we believe that this study will help identify and correct our own biases,” Wilson says.

She isn’t talking simply about sentencing recommendations, but also how long a defendant sits in jail before a trial and her office’s starting offers in plea agreements. Researchers will look at every decision a prosecutor makes, as well as the courts and law enforcement agencies that file the initial charges.

Jared Fishman, a former federal prosecutor who launched the Justice Innovation Lab, says the goal is to identify unfair practices wherever they lie. Maybe drug cases are treated differently based on the race of the defendant, but homicides aren’t. Whatever they show, numbers don’t lie.

Fishman says he knows from experience that prosecutors often make serious calls on very little information. And in those gut decisions, bias often plays a role. “Is someone being held in jail pre-trial for a case that doesn’t have the evidence to support the charges? That shouldn’t be happening,” Fishman says. “We know a lot of our institutions are marred by cognitive bias. We want to find out if there are biases in this system, and if there are, fix them.”

This project dates back to the trial of Michael Slager, the former North Charleston police officer convicted of killing Walter Scott. At the time, Wilson was just beginning to collect this data but didn’t have the resources to properly analyze it. Fishman, the federal prosecutor on the Slager case, saw a way to use that data to make improvements to the system. “In Charleston, the people I saw in the solicitor’s office were working hard for the people of the community. We’re just going to try to help them do it better,” Fishman says. “In order to fix the criminal justice system, you need a fair process that protects public safety.” Dot Scott, president of the Charleston branch of the NAACP, says she hears stories of racial disparities in the criminal justice system constantly. Now, with the entire country debating criminal justice and issues of race, is a perfect time to address such bias. “I’m excited that she’s going to do this, because you can’t change anything based on anecdotes,” Scott says. “Getting that real information can’t help but be a plus for the community.” This is the sort of study that can have a ripple effect. For instance, Fishman says they will be able to determine whether drug offenders are getting equal access to rehabilitation programs, or some are just thrown in jail. Which contributes to over-incarceration and prison overcrowding.

Once the initial data is crunched, the researchers and Wilson will use the information to find ways to reduce bias in the solicitor’s office practices. Because they are adjusting internal policies, they can make changes and, if they don’t work, try something different.

Last year, Wilson put her case records on the internet to bring greater transparency to prosecutions. She calls this the next step in that process, and it’s an ambitious one.

But then, making justice truly impartial is a lofty — and noble — goal.