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  • photo courtesy of the washington state supreme court
Originally posted on Friday, and moved up because the Seattle Times has now withdrawn its endorsement of Justice Sanders over his remarks on racial disparities in the prison system.

I'm really surprised at Slog commenters on this one.

The general consensus among you all seems to be that if a Washington State Supreme Court Justice blithely suggests that yeah, African-Americans in this state are incarcerated at five times the rate of their representation in the general population, but that's just because they have an inherent problem with not engaging in criminal behavior—well, if a justice says that, it's just real talk.

It's just... true.

As the excellent Seattle Times story on the justice's comments points out:

African Americans represent about 4 percent of Washington's population but nearly 20 percent of the state prison population. Similar disparities nationwide have been attributed by some researchers to sentencing practices, inadequate legal representation, drug-enforcement policies and criminal-enforcement procedures that unfairly affect African Americans.

This understates it somewhat. It's hard to find people these days who will say that African American incarceration rates are only a reflection of that community's inherent "crime problem," and not also not about the role of "sentencing practices, inadequate legal representation, drug-enforcement policies and criminal-enforcement procedures that unfairly affect African Americans." (Which is not even to mention little things like history, institutional racism, and class-based advantages unavailable to many African Americans who end up in the prison system.)

When it turns out that one easy place to find people who will say this is on the Washington State Supreme Court—well, that's fairly described as stunning, I think. It's why people in on the conversation with Justice Sanders (and his partner in this argument, Justice Jim Johnson) were offended, and why fellow justices also found the whole thing remarkable, and remarkably unhelpful.

Chief Justice Barbara Madsen said she recalled that Sanders disagreed with the premise that anyone was in prison because of race and asked for a name of someone there because of race.

She also recalled Johnson said something about African Americans committing crimes in their own communities, but that she only heard later that he used the term "poverty pimp."

Madsen said she stopped the conversation because she didn't think it was productive.

I find this all the more notable given Justice Sanders' history of writings that seem, at the very least, racially insensitive. He really believes that no one in all of Washington State is in prison because of their race? That justice in our state is completely race-neutral and fair to all involved?

Having spent a lot of time looking at Justice Sanders' record for this feature, and having tried quite hard to understand his political philosophy, I find his current comments, like others he's made, to be alarmingly baffling—and fundamentally inconsistent.

He casts himself as a defender of individual liberties, liberties that he says are constantly under threat from an over-reaching government that will do terrible things to its most vulnerable citizens if given too much opportunity. Yet he can't imagine—just can not imagine—that this same government has put anyone in prison in Washington State for reasons connected to legacies of racial injustice?

He casts himself as an arbiter of historical truth, and is in fact quite a history buff, splitting historical hairs on whether German officers in World War II were Nazis, for example, and signing an opinion that upheld this state's ban on gay marriage based in part on his interpretation of the intent of legal writers going back to the founding of Washington State and beyond (the opinion uses the word "history" about 25 times). Yet when he's looking at African American incarceration rates he's blind to history, "hasn't seen evidence that African Americans are disproportionately imprisoned because of race," and wants anyone with proof of this dubious trend to contact him immediately?

It doesn't make sense.

And because it doesn't make sense, and is coming from a man with a mind that's well able to make sense of many other complicated socio-historical issues, it begs for another explanation.

An explanation that's not about logic or numbers or history, but something more in the realm of the irrational.

And that, yawners, is why other people—from the Chief Justice of the Washington State Supreme Court on down—find Justice Sanders' recent comments, to use the word that's already out there, stunning.