L. Song Richardson (University of California, Irvine School of Law) has posted Systemic Triage: Implicit Racial Bias in the Criminal Courtroom (Yale Law Journal, Vol. 126, No. 3, 2017) on SSRN.
Here is the abstract:
In Crook County, Nicole Gonzalez Van Cleve provides a groundbreaking and disturbing ethnography of the Cook County-Chicago criminal courts, the largest unified criminal court system in the United States. She details how prosecutors, judges, public defenders and sheriff’s deputies create and maintain a criminal justice system that turns race-neutral due process protections into tools of racial punishment. This review analyzes Crook County by situating it within the broader framework of pro-active policing practices that overwhelm criminal courthouses across the country with an avalanche of cases involving non-violent offenders who are primarily individuals of color. The result is what I refer to as systemic triage. Triage denotes the process of determining how to allocate scarce resources. In this review, I use the phrase systemic triage to highlight that all criminal justice system players are impacted by criminal justice policies and policing practices that engulf, not only public defenders, but also the entire cadre of courtroom players, including prosecutors and judges. No scholar has taken this systemic view of triage and explored its implications. Using evidence from Professor Van Cleve’s ethnography and from the social psychology of implicit racial bias, I argue that systemic triage inevitably results in racialized justice, regardless of the conscious motivations of individual decision-makers. It ends with some suggestions for reform.