Justice Has Never Been Blind

By Dr. Harold A. Black



Brenda Russell’s “Against the Law” (see the video) brings back some unpleasant memories of growing up black in the segregated south. I knew of no one under the illusion that justice was blind. Justice was not impartial and objective. Blacks expected and received harsher punishment than whites. Whites controlled the police departments, the judges and juries. The question is why is justice still not blind?

We all know that there are racial disparities in the administration of “justice” but we must be careful not to use racial disparities as a proxy for discrimination. For example, confinement rates for blacks are greater than for whites. However, confinement rates are misleading if blacks commit more crimes than whites. If the crimes committed by blacks are more serious than those committed by whites, then black sentences should be harsher. So the question is one of ceteris paribus (all other things being equal). Discrimination occurs if blacks and whites who commit the same crime and have the same priors receive different treatment by law enforcement and by the courts. More specifically, the correct test would be to look at treatment by race within the same law enforcement unit, the same prosecutors and the same judge. If a jury trial is involved, then the same approximate jury. Of course that is not possible, so inference becomes important. Moreover, it would be important to see differences in enforcement, incarceration and sentencing when control of the government flips from white to black. It is obvious that in some areas now in the hands of “progressives” that their solution to disparate treatment is perverted. Rather than advocating for equal treatment, their solution has been to lessen the penalties of crimes committed by blacks. Not surprisingly, crimes have increased in cities with progressive DAs. Look at the explosion of car thefts and smash and grab crimes in San Francisco, Los Angeles and New York.

Justice is not blind because all of its components are biased. All-white juries levy harsher punishment against blacks than whites. It was not long ago in the deep south that a white person who committed a crime against a black could expect no punishment – even in the case of murder – because the cops, judges and juries were all white. Thankfully, those times are gone. But the question remains: will the punishment today be the same for a black committing the same crime as a white? A lot depends on the juries. Each juror is biased even though the justice system assumes otherwise. However, jurors are not tested for implicit biasness. By the way, the most widely tests for implicit biases are fatally flawed and woefully unreliable.

Even the judges who administer the law are biased. When a case goes before a federal judge, it is always reported who appointed the judge. Was it Trump or Biden or Bush or Obama? This is an acknowledgment that justice is not blind and the politics of the judge will determine the outcome. More often than not, Supreme Court decisions revolve around which president appointed the justices. If justice were blind, then the opinions of justices Brown and Sotomayor would be different than how they vote. That is, even if their examples of the benefits of an unconstitutional act were true, they still should have voted against the unlawful act given their supposed fealty to the Constitution.

We all know that Donald Trump will not receive a “fair” trial in New York, Washington, D.C., or Atlanta, GA. The DAs, grand juries and trial juries are all biased and hate Trump. In order to get a semblance of a fair trial, Trump’s lawyers should demand that the juries be split evenly among whites and blacks and Republicans and Democrats. A black and or a Democrat jury in those cities guarantees a guilty verdict. Trump juries with some Republicans would likely result in a hung jury and a jury of Trump supporters would find him not guilty – all hearing the same evidence.

Again, blacks have never thought that justice was blind. In fact, the term “justice” is itself a misnomer. I think that most whites have always felt the same way but since “justice” was tilted in their favor they didn’t object. However, the prosecutions of Donald Trump have changed all that. Citizens see now the uneven application of the law in our system of “justice”. The two-tiered justice system that has always been present in black America is now front and center. The question is whether we are finally going to do something about it?