California may sentence criminals based on their race, violating the Constitution

California may sentence criminals based on their race, violating the Constitution
World's largest gavel, outside courthouse in Columbus, Ohio

“A Democrat-backed bill making its way through the California Legislature would require judges in the state to consider a convicted criminal’s race when determining how long to sentence them to prison,” reports Fox News. “The Assembly went on to pass the little-known legislation in May, and the measure is currently being considered in the state Senate.” Given the huge margin by which it passed the Assembly, where every single Democrat voted for it, and it passed in a 58-to-13 vote, it may well become law.

But considering race in punishments generally violates the Constitution’s equal-protection and due-process clauses, even when a state has a history of past discrimination. So the legislation will likely lead to constitutional violations.

As Fox News explains,

The bill would add a section to the Penal Code of California requiring courts, whenever they have the authority to determine a prison sentence, to “rectify” alleged racial bias in the criminal justice system by taking into account how historically persecuted minorities are affected differently than others.

“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 proposed new section to the Penal Code reads. “Whenever the court has discretion to determine the appropriate sentence according to relevant statutes and the sentencing rules of the Judicial Council, the court presiding over a criminal matter shall consider the disparate impact on historically disenfranchised and system-impacted populations.”

But even institutions with a history of racism against minorities generally cannot discriminate in their favor when it comes to punishment.  Discrimination based on race in handing out punishments is likely too extreme.  For example, a federal appeals court struck down as unconstitutional a provision that forbade a “school district to refer a higher percentage of minority students than of white students for discipline unless the district purges all ‘subjective’ criteria from its disciplinary code,” concluding that that constituted a forbidden racial quota. As it noted, “Racial disciplinary quotas violate equity” by “either systematically overpunishing the innocent or systematically underpunishing the guilty,” and thus violate the requirement that “discipline be administered without regard to race or ethnicity.” (People Who Care v. Rockford Board of Education, 111 F.3d 528, 538 (7th Cir. 1997)). This provision was struck down, even though a “district judge found that the school district had intentionally discriminated against black and Hispanic students in violation of the equal protection clause of the Fourteenth Amendment.”

It does not violate the Constitution’s equal protection clause for states to adopt certain temporary, time-limited measures that discriminate in favor of minorities in areas like employment, to remedy recent widespread discrimination against them (at least when a state has previously tried race-neutral ways to remedy discrimination against minorities, and is using race as a “last resort.”)

But it is questionable whether California discriminates in sentencing against minority groups. Years ago, the RAND Corporation statistical expert Dr. Stephen P. Klein looked carefully at California’s state criminal justice system, and, controlling for relevant variables, found that criminal sentencing in California was racially fair and non-discriminatory, overall, and that blacks and whites in California who are similarly-situated got very similar sentences. (See Stephen P. Klein, et al., “Race and Imprisonment Decisions in California,” 247 Science 812 (1990)). Klein was a center-left researcher who exposed shenanigans by a Republican education secretary and was an expert witness for the ACLU in the landmark Serrano v. Priest case that promoted equality in K-12 education funding.

But even if Klein were wrong, discriminating based on race in punishment would not be justified, especially not as a way of rectifying “disparate impact.” California should not discriminate against whites and Asians in sentencing today even if it discriminated against blacks and Hispanics in the past. That just compounds the injustice.

Basing the length of incarceration on someone’s race is more extreme than deciding who to lay off based on their race, which courts have said is too extreme a form of affirmative action to uphold. Even when institutions can discriminate based on race in favor of minority groups (such as in hiring pursuant to an affirmative-action plan), the discrimination must not “unduly trammel” anyone’s rights, such as basing a decision about whether to fire an employee based on their race (or to suspend a student based on her race, as in the People Who Care v. Rockford Board of Education decision).

When it comes to termination (as opposed to hiring or promotion under an affirmative-action plan), an employer can’t racially discriminate even against whites. The Third Circuit Court of Appeals ruled in 1996 that a school district can’t consider race even as a tie-breaker, in deciding who to lay off, even to promote diversity, because that (a) unduly trammels the white teacher’s rights — even affirmative action plans are supposed to be mild and not unduly trammel someone’s rights, and getting fired as opposed to being denied a promotion unduly trammels someone’s rights — and (b) putting that aside, the school district couldn’t consider race to promote diversity when black people weren’t seriously underrepresented in its workforce as a whole. (See Taxman v. Board of Education of Piscataway, 91 F.3d 1547 (3d Cir. 1996)).

Four of five Supreme Court justices in the majority of a landmark Supreme Court decision said something similar in Wygant v. Jackson Board of Education (1986). In that case, the Supreme Court overturned race-based layoffs by a 5-to-4 vote. Five justices said a school district can’t lay off white teachers to remedy societal discrimination against blacks. Four of those five also said that the Constitution forbids laying off people based on race (as opposed to considering race in hiring and promotions) even to remedy a school district’s own discrimination (See Justice Powell’s opinion announcing the judgment of the court, and also Justice White’s concurrence).

Being given a longer prison sentence because of your race (than a person of another race who committed the same crime) is a far more extreme thing than just being laid off from your job. As Justice Kennedy has noted, “One day in prison is longer than almost any day you and I have had to endure.”

Moreover, by permanently mandating the use of race to rectify “disparate impact,” the California legislation runs afoul of the requirement that any racial preference be “temporary” and target “specific identified instances of past discrimination.” The Supreme Court’s June 29 decision in Students for Fair Admissions v. Harvard rejected the use of race in admissions to promote diversity, because such a use of race could persist for generations, and thus violated the precept that any “deviation from the norm of equal treatment” must be “limited in time” and “a temporary matter.” It also stated that outside the context of higher education, “our precedents have identified only two compelling interests that permit resort to race-based government action. One is remediating specific, identified instances of past discrimination that violated the Constitution or a statute….The second is avoiding imminent and serious risks to human safety in prisons, such as a race riot.”

Disparate impact in the criminal justice system is not a “specific, identified” instance of “past discrimination,” and it often does not violate any law. Instead, it is something that will persist for generations, or even forever, even if racism is purged from the criminal justice system. That is because many racial disparities in the criminal justice system are not due to racism or the legacy of segregation at all. For example Asians are 15% of California’s population, but only 2% of its jail population — a huge racial disparity. Nationally, less than 2% of the jail population is Asian or Pacific Islander, even though they account for more than 6% of the U.S. population. The criminal justice system has a huge disparate impact on all other racial groups relative to Asians, but this is not due to any racism in favor of Asians — indeed, occasionally discrimination occurs against Asians, such as in police stops in California’s Siskiyou County. In the 19th Century, California massively discriminated against Asians in its criminal justice system, including barring Chinese people from testifying in court in People v. Hall (1854).

Racial differences in arrest and incarceration rates do not prove racism, even if they are viewed as a form of “disparate impact.” In an 8-to-1 ruling, the Supreme Court emphasized that there is no legal “presumption that people of all races commit all types of crimes” at the same rate, since such a presumption is “contradicted by” real world data showing big differences in crime rates. Thus, racial disparities in arrest or incarceration rates don’t violate the Constitution’s ban on racial discrimination (See United States v. Armstrong (1996)). A 2021 study by the federal Bureau of Justice Statistics found that although blacks are arrested for serious nonfatal violent crimes at much higher rate than people in general, this mostly reflected underlying crime rates: “white and black people were arrested proportionate to their involvement in serious nonfatal violent crime overall and proportionate to their involvement in serious nonfatal violent crime reported to police.” (See Allen J. Beck, Race and Ethnicity of Violent Crime Offenders and Arrestees, 2018).

Many racial disparities have nothing to do with illegal discrimination, and don’t need to be “fixed” to remedy discrimination. For example, Hispanics live longer than whites on average, and Asians live significantly longer than whites. Racial disparities exist everywhere in the world, often for non-racist reasons, notes the black economist Thomas Sowell in his book Discrimination and Disparities. In a 6-to-3 ruling, the Supreme Court said that it is “completely unrealistic” to think that in the absence of racism, minorities will be represented in a field “in lockstep proportion to their representation in the local population.” (See Richmond v. J.A. Croson Co. (1989)).

Fixing “disparate impact” does not fix unconstitutional discrimination. The Supreme Court has ruled that “disparate impact” does not violate the Constitution, in Washington v. Davis (1976). Outside the employment setting, it often doesn’t violate civil-rights statutes, either (See, e.g., Alexander v. Sandoval (2001)).

Some federal appeals courts — although not the California-based Ninth Circuit Court of Appeals — ruled even prior to the Supreme Court’s recent decision that race cannot be used to remedy “disparate impact” discrimination against minorities, only “intentional discrimination” against them, because the constitution only forbids intentional discrimination. (See, e.g., Builders Association v. City of Chicago, 256 F.3d 642 (7th Cir. 2001); Vitolo v. Guzman, 999 F.3d 353 (6th Cir. 2021)). Moreover, there must be evidence of recent, widespread discrimination against minorities, not just occasional instances of discrimination.

The Supreme Court has suggested that a showing of intentional discrimination against minorities is typically required to justify giving them a preference. It did so in 1989, by refusing to allow the City of Richmond, Virginia, to give a racial preference to blacks in city contracts, even though the city was “50% black,” and blacks were getting less than 1% (“only 0.67%”) of city contracts. The Supreme Court recognized that in an “extreme case, some form of narrowly tailored racial preference might be necessary to break down patterns of deliberate exclusion” (emphasis added), but it stated that race can only be used to remedy a “prima facie case of a constitutional or statutory violation.” (See Richmond v. J.A. Croson Co. (1989)).  Disparate impact is not a constitutional violation, and outside the employment context, it is usually not a “statutory violation,” either.

Workplace laws often contain provisions banning “disparate impact” in employment, see 42 U.S.C. 2000e-2(k)). But their reach is very amorphous, and don’t reach all racial disparities of the sort that prompt allegations of racism and “disparate impact” in the criminal justice system. Racial disparities don’t legally count as a prima facie case of disparate impact under these laws if they don’t take into account very rudimentary qualifications — for example, if an employer’s skilled labor force is mostly white, and its unskilled labor force is mostly black, that was not legally “disparate impact,” according to the Supreme Court’s 5-to-4 decision in Wards Cove Packing Co. v. Atonio (1989), because unskilled workers are obviously qualified to perform a skilled white-collar job. On the other hand, a job test usually can’t be used to weed out more blacks than whites for an unskilled job. (See Griggs v. Duke Power Co. (1971)). To further complicate matters, according to the federal courts, even a large racial disparity cannot constitute illegal “disparate impact,” if it is not due to “robust causality,” whatever on earth that means.

So the sort of racial “disparate impact” at issue when more blacks than whites are incarcerated — a grievance cited by California lawmakers — might or might not legally amount to disparate impact in the eyes of federal judges.  (See Mozee v. American Commercial Marine Service Co., 940 F.2d 1036, 1047-48 (7th Cir. 1991) (employee discipline disparity irrelevant if it does not take into account “prior disciplinary record”); see Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 650–51 (1989) (“proper comparison is between the racial composition” of those selected and “racial composition of [those] qualified”)).

The Supreme Court recently warned that race cannot be used for an “amorphous end,” such as fixing societal discrimination, or “nebulous values,” such as promoting diversity of various kinds. Rectifying “disparate impact” in the criminal justice system seems at least as amorphous or nebulous as these goals.

Even if using race in sentencing did not violate equal-protection guarantees, it could still violate the constitutional right to due process, which requires impartial sentencing, and does not contain any exception allowing race to be used to offset discrimination against other people. The equal protection clause is not the only provision barring the use of race in the criminal justice system. For example, the Sixth Amendment right to an impartial jury restricts racism in jury deliberations, above and beyond what the 14th Amendment’s equal protection clause mandates. (See Pena-Rodriguez v. Colorado (2017)). Similarly, people have the due-process right under the 5th and 14th Amendments to an impartial decisionmaker, even when they are subject only to mild penalties such as small fines, unlike the prison sentences affected by the California legislation. (See, e.g., Tumey v. State of Ohio (1927)).

There is certainly a “compelling interest” in things like preventing crime, but the courts have never said that a weighty interest overrides the right to due process, in contrast to how they have sometimes have ruled that a compelling interest can temporarily override the right to equal protection.

Hans Bader

Hans Bader

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department. Hans writes for and has appeared on C-SPAN’s “Washington Journal.” Contact him at


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