Blacks far more likely to face felonies In Washtenaw County, report shows

African Americans in Washtenaw County are far more likely than white people — approaching 30 times in some cases — to be charged with a range of felonies, an analysis of roughly 1,000 criminal court cases released Thursday concludes.

The apparent racial disparities span 11 types of felony cases over a period up to seven years, according to the findings of a citizens group culled from case data in Washtenaw County Circuit Court. 

Cases range from driving with a suspended license ─ where the report found people of color nearly three times as likely as whites to be charged ─ to assault and resisting a police officer, where people of color were more than seven times more likely to be charged than whites.

In cases alleging felony firearm — that is, possessing a firearm while committing a crime — the study concluded people of color were nearly 30 times more likely to be charged than white people. (African Americans made up 98-99 percent of the people of color cited in the group’s analysis of felony categories.)

“Certainly, what we found is daunting. The numbers say we have a real problem here in Washtenaw County,” said Alma Wheeler-Smith, a former Democratic state representative from Washtenaw County and co-chair of the citizens group, Citizens for Racial Equality in Washtenaw (CREW), which compiled the report.

Wheeler-Smith said the committee drew no conclusions about factors that might be driving the higher rate of criminal charges filed against Black people, though the report specifically questioned whether racial bias influenced charging decisions by county prosecutors. CREW also singled out a sitting judge for what it termed a pattern of racial disparities in sentencing.  

Wheeler-Smith said she is deeply skeptical that higher crime rates in the county’s African-American communities can fully account for the striking racial disparities in felony charges.

“We would certainly like to believe that Black people are not worse than white people,” she told Bridge Michigan in an interview. 

The CREW report states: “At the very least, the data raises questions (although it does not answer them) about the exercise of prosecutorial discretion, whether there are cultural norms or implicit biases within or outside of the prosecutor’s office that are contributing to unfairness, and whether and what kind of systemic reforms are necessary. “

Veteran Washtenaw County Prosecutor Brian Mackie disputed any implication that his office has had a practice of racial bias in how it prosecutes cases. He did not, however, dispute the report’s calculations in the share of Black people charged in comparison to whites.

“We believe in ethics here. We have to deal with the cases that we have. We always pride ourselves in being fair to the cases that are brought before us,” said Mackie, who is retiring in December after 28 years in office.

Mackie suggested there are other, historic reasons outside of prosecutorial prejudice to explain the racial disparity in criminal charges .

“We would have to go over 400 years of history to understand why we have the disparity,” he said. “Racism is the original sin of the United States.”

Incoming prosecutor Eli Savit called the report’s findings “incredibly discouraging and incredibly illuminating.”

“It says to me that we have a real racial equity issue in our criminal justice system in Washtenaw County,” said Savit, who won the Aug. 4 Democratic primary to succeed Mackie and is unopposed in the Nov. 3 general election.

“It demonstrates the need for actions by the prosecutor’s office and by the judicial system. This really only scratches the surface. It tells us there is a problem. What it does not do, as far the prosecutor’s office is concerned, is determine what are the practices that are driving these differences.”

Savit and Washtenaw Chief Judge Carol Kuhnke sent Bridge a joint statement expressing broad support for the report’s findings, including the naming of a race equity commission.  

“I’m glad that the report acknowledges that the data tells only a part of the story.  The story it does tell, however, is one we know well: Implicit bias is real.  We must do all we can to ensure that justice is blind, and the CREW report shows us the path,” said Kuhnke, who has served on the court since 2013.

Savit and Kuhnke also announced they will embark on a listening tour across the county this fall focused on criminal-justice issues.

Washtenaw County Commissioner Sue Shink said she would “most likely” back the naming of a separate commission to probe the report’s findings.

She added in a statement that the report “furnishes important information to further the discussion our community is already having around how we can work together to eliminate systemic racial bias so that all of our residents experience real justice.  As stated in the CREW report, ‘The bottom line here is that the statistics in this report are not just numbers—they represent our neighbors, the person we sit alongside on the bus and greet on the street as we walk our dogs—They are us.’”

While the report found no overall racial disparity in sentencing practices by the Washtenaw Circuit Court bench, it singled out Judge Archie Brown, citing what it deemed a pattern of issuing longer sentences for people of color and sending more people of color to prison (instead of probation) compared with white defendants. 

A review of Brown’s courtroom found “significant racial disparities in sentencing, harsher average sentences that were outliers compared to the rest of the court or significant racial disparities with regard to where whites versus People of Color carried out their sentences (e.g. probation versus prison).”

The report, for instance, noted 16 cases in which Brown sentenced defendants convicted of armed robbery — eight were people of color and eight were white people. On average, Brown gave people of color a minimum sentence of 9.7 years in prison and a maximum sentence of 24.9 years. In contrast, white people received an average minimum of 4.2 years and maximum of 19.9 years. 

In 25 cases where people of color were convicted of resisting and obstructing an officer, the study found Brown allowed only four to receive probation rather than incarceration. In contrast, four of seven white defendants received probation. 

The report proposed that the circuit court “engage a neutral, outside, third-party to determine whether the racial disparities evidenced in Judge Brown’s sentencing decisions are rooted in any personal bias or systemic bias.”

Brown, who has been on the Washtenaw bench since 1999, told Bridge Wednesday he was not familiar with the details of the report, but disputed any conclusion he might be racially biased in his sentencing practices. 

“At this point I can categorically deny the assertion that I am in any way racist in the way I operate my court. In fact, I think I’ve done pretty much what anyone else seated in these chairs has done.”

He said he has “always sentenced primarily to the pre-sentence guidelines,” referring to 1998 state legislative standards that ask judges to take into account a variety of circumstances in fashioning punishment including the seriousness of a crime and a defendant’s prior criminal record.

Brown said he would welcome any further look into issues raised by the report regarding the court’s sentencing practices.

For the court overall, the study did not detect a consistent pattern of judicial bias in sentencing among the circuit court’s four criminal judges.

“While we found racial disparities among individual judges in one or more case categories, CREW did not find that the Washtenaw County Circuit Court, as a whole, demonstrated a pattern of racial disparity in its sentencing of our community members across…case categories we studied.”

CREW’s conclusions were markedly different for prosecutors. 

The report recommends the creation of an independent race equity committee by the Washtenaw County Board of Commissioners to evaluate the prosecutor’s office for potential racial bias in its charging decisions. It also proposes creation of an online dashboard to measure whether prosecution charging decisions have “a disparate impact on racial minorities.”

And though CREW found no overall pattern of bias on sentencing, it called for Washtenaw County Circuit Court to “undertake serious and transparent reforms” that includes an audit of its sentencing practices.

One national advocate for criminal justice reform said the report is a rare example of a detailed look at a local court jurisdiction for potential bias.

“There are not many jurisdictions that have attempted a project like this. I am very impressed with the sophistication of the analysis,” said Marc Maurer, senior adviser to and former executive director of the Sentencing Project, a Washington, D.C.-based criminal justice research and advocacy nonprofit. Maurer examined an advance copy of the report several days before its release.

Maurer said the report echoes national findings that confirm disproportionate prosecution and sentencing of persons of color.

“The disparities are real,” he said.

The study is based on examination of about 1,000 court cases, dating as far back as 2013 for some types of felonies, through 2019. A dozen volunteers compiled data on the cases from the court’s website over a period of several months, according to committee co-chair Linda Rexer, the former executive director of the Michigan State Bar Foundation. It determined the race of the defendants from the court records.

CREW, which has seven members, formally organized in late June, roughly a month after an African American named George Floyd was killed in Minneapolis while in police custody. His death helped launch a wave of protests over police violence against African Americans and a national conversation on systemic racism, including in the criminal justice system. In addition to Wheeler-Smith and Rexer, CREW includes community activists, ministers and civil rights lawyers. 

CREW said it shared its statistical findings in advance of their release with county commissioners, the current and incoming prosecutor, the court’s chief judge as well as Washtenaw County Sheriff Jerry Clayton and Michigan Supreme Court Chief Justice Bridget McCormack. McCormack called the report a “great example of citizens working together to better understand the problems that confront community members who are too often voiceless. I am listening and learning with the Washtenaw community, and I am going to study this report closely. And I have asked our analysts at the State Court Administrative Office to review the data and findings.” Clayton didn't reply to a Bridge request for comment.

The report was aided by a $9,600 grant from ACLU of Michigan to compile a statistical analysis of the cases and compare them to the racial demographics of Washtenaw County, which has a population that’s about 12 percent Black residents, 9.4 percent Asian, 5 percent Latino and 74 percent white. 

While white residents outnumber Black residents by roughly 6 to 1, a review of cases extending from 2017 through 2019 found: 

• 110 people of color were charged with driving with a suspended license compared with 90 white people 
• 146 people of color were charged with possession of a controlled substance, compared with 94 white people 
• For delivery of a controlled substance, the numbers were even more skewed, with 96 people of color to 23 white people 

On the most serious charge, homicide, people of color were seven times more likely to be charged than white people. The report found 38 cases of homicides charged against persons of color from 2013 through 2019, compared to 12 cases filed against white people.

Whether that reflects bias in police or prosecutorial decisions to arrest or charge people, or reflects far higher homicide rates in Black communities, is unclear, making it difficult to reach easy conclusions on the extent to which the Washtenaw data reflects bias in its criminal justice system.    

For example, U.S. homicide rates for Black people ─  which researchers attribute to factors including poverty, unemployment and neighborhood violence ─ were eight times that for white people in 2015 and 2016. In Michigan from 2007 through 2009, the homicide rate for Black people was 17 times higher than for white people. 

Desirae Simmons, a CREW committee member and co-director of the Ypsilanti-based Interfaith Council for Peace and Justice, a nonprofit social justice advocacy organization, offered no simple explanation why homicide rates vary so widely by race.

“This is a really difficult question for me to answer for a variety of reasons. It’s hard to say. Could it be there are sociological reasons behind the criminalization of Black people that happens outside the criminal justice system?”

John Cooper, executive director of Safe & Just Michigan, a Lansing-based criminal justice reform nonprofit, declined to comment on the specifics of the Washtenaw County findings. But he said the issues they raise deserve exploration.

“We do see racial disparities in every level of the criminal justice system. It’s pervasive,” he said.

That’s long been reflected in the share of Black people in prison compared to their share of the population, both across the nation and in Michigan.

In 2018, according to a Pew Research report, Black people made up 12 percent of the U.S. adult population but a third of those in state and federal prisons. Whites accounted for 30 percent of the prison population, about half their share of the adult population.

In Michigan, about 53 percent of state prisoners in 2019 were Black people, nearly four times their 14 percent share of the overall population.

In a 2018 analysis of felony firearm sentences, Safe & Just Michigan concluded that one particular state law – mandatory felony firearm ─ has had a “striking” and disproportionate impact on persons of color.

The law imposes a two-year mandatory minimum sentence for possessing a firearm when committing or attempting to commit a felony, which must be served before the sentence for the underlying felony. That means, for example, that a person carrying a gun while selling cocaine to another could be charged with felony firearm in addition to the drug charge, regardless of whether the weapon played a factor in the drug deal.

The mandatory minimum rises to five years for defendants with a prior felony firearm conviction,  and 10 years for those people with two or more prior convictions.

The CREW report found that 25 persons of color were charged with felony firearm from 2017 through 2019 in Washtenaw County, compared to two whites.

Safe & Just’s analysis found that in 2013, Michigan’s prison population was 54 percent non-white, but that 80 percent of those serving time for felony firearm were people of color. Nearly 58 percent of prisoners serving felony firearm sentences were from Wayne County and 91 percent of those were persons of color.

“The felony firearm law has contributed significantly to both Michigan’s prison population and racial disparities in our criminal justice system,” it concluded.

CREW co-chair Rexer sees the report as an important first step in untangling a complex and troubling social issue unaddressed for too long. She said it’s up to the community and criminal justice system to respond.

“We didn’t know what the data would show going in,” she said. “We were surprised by the data. But possibly this approach will heighten awareness and that’s a step in the right direction.”