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Racial Trends in the Administration of Criminal Justice

Randall Kennedy

No area in American life is more volatile than the point at which charges of racial injustice intersect with the administration of criminal law (Kennedy, 1997; Cole, 1998; Tonry, 1995; Chicago Kent Law Review, 1998; Harvard Law Review, 1988). Examples include the Watts, California, riot of 1965; the Liberty City, Florida, riot of 1980; and the Los Angeles, California, riot of 1992—all of which were ignited by incidents that dramatized, or were at least perceived as involving, racial unfairness in criminal-law enforcement. The Los Angeles riot is characteristic. It followed the acquittal of police officers charged with criminally assaulting a Black motorist, the now-legendary Rodney King, by a jury that contained no Black members. The outpouring of violent anger following that acquittal reflected, to a large extent, a deep-seated belief on the part of many Blacks that the judicial process is unfairly stacked against them, whether they be defendants or victims of crime. In a 1995 Gallup Poll, more than one-half of the Black people questioned said that they believed the administration of criminal justice is racially biased against them. Two-thirds indicated that, in their view, anti-Black police racism is common throughout the country (Gallup Poll, 1995).

The racial demographics of criminal-law enforcement provide ample nourishment for these impressions. Blacks are victimized by crime at rates that are dramatically higher than the rates at which Whites are victimized, and at every income level, except for the poorest (annual household income less than $7,500). Whereas White victimization rates decline as income increases, Black victimization rates rise as income increases.



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America Becoming: Racial Trends and Their Consequences - Volume II 1 Racial Trends in the Administration of Criminal Justice Randall Kennedy No area in American life is more volatile than the point at which charges of racial injustice intersect with the administration of criminal law (Kennedy, 1997; Cole, 1998; Tonry, 1995; Chicago Kent Law Review, 1998; Harvard Law Review, 1988). Examples include the Watts, California, riot of 1965; the Liberty City, Florida, riot of 1980; and the Los Angeles, California, riot of 1992—all of which were ignited by incidents that dramatized, or were at least perceived as involving, racial unfairness in criminal-law enforcement. The Los Angeles riot is characteristic. It followed the acquittal of police officers charged with criminally assaulting a Black motorist, the now-legendary Rodney King, by a jury that contained no Black members. The outpouring of violent anger following that acquittal reflected, to a large extent, a deep-seated belief on the part of many Blacks that the judicial process is unfairly stacked against them, whether they be defendants or victims of crime. In a 1995 Gallup Poll, more than one-half of the Black people questioned said that they believed the administration of criminal justice is racially biased against them. Two-thirds indicated that, in their view, anti-Black police racism is common throughout the country (Gallup Poll, 1995). The racial demographics of criminal-law enforcement provide ample nourishment for these impressions. Blacks are victimized by crime at rates that are dramatically higher than the rates at which Whites are victimized, and at every income level, except for the poorest (annual household income less than $7,500). Whereas White victimization rates decline as income increases, Black victimization rates rise as income increases.

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America Becoming: Racial Trends and Their Consequences - Volume II Whites in the highest income bracket ($75,000 or more) are the least victimized by crimes of violence, with a rate of 36.6 crimes per 1,000 persons; Blacks in the highest income bracket are the most victimized group, with a rate of 104 reported crimes per 1,000 persons (U.S. Department of Justice, 1996). As regards homicide, in 1995, there were 5.1 homicide victims per 100,000 non-Hispanic White men; by contrast, there were 57.6 homicide victims per 100,000 Black men—more than 10 times the White rate (Stone, 1998; Rose and McClain, 1990; Hagan and Peterson, 1995). This disparity in victimization extends to other violent crimes and gives rise to the oft-stated assertion that local, state, and federal governments would respond differently if Whites were hit as hard by criminality as Blacks. At the same time, Blacks are arrested, convicted, and incarcerated at far higher rates than Whites or any other ethnic or racial group. To note one of many disturbing statistical patterns, in the 1990s, the chance that a Black male born in the United States would go to prison for a felony was about 28.5 percent; the chance for a White male was 4.4 percent (Bonczar and Beck, 1997). Against this backdrop, it should not be surprising that frustration, anger, fear, suspicion, even paranoia have seeped into the perceptions of many observers of the criminal justice system across the racial and ideological landscape. This paper explores racial controversies in three contexts—policing, jury service, and punishment—that have a broad impact on the daily lives of millions of Americans of all races. The goal is to frame the major debates under discussion in these areas, to describe governing law, and to posit the likely course of legal developments in the future. This paper focuses almost wholly on Black-White conflicts, although racial controversies embrace a wide array of intergroup conflicts. Chris Stone, Director of the Vera Institute of Justice, correctly asserts, however,-that there is a remediable dearth of information about racial issues in the administration of criminal justice outside of the Black-White conflict (Stone, 1999).1 Careful analysis of racial problems in the United States would be overwhelmed if commentators were forced to deal comprehensively with all complexions of racial conflict anytime they discussed racial injustice. It is also true, however, that too much focus on the Black-White racial paradigm has sometimes led to a debilitating parochialism in analysis and imagination (Stanford Law Review, 1995). The Black-White focus of this paper notwithstanding, much of what is analyzed is applicable to other points of friction along America’s varied racial fault-lines. Black-White conflict is placed at center stage here be- 1   For an example of the sort of study that is much needed, see U.S. Department of Justice, Bureau of Justice Statistics, American Indians and Crime (February, 1999).

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America Becoming: Racial Trends and Their Consequences - Volume II cause it has been and remains the paradigmatic form of racial conflict in the United States, because it has generated by far the most law governing race relations in the administration of criminal justice, and because concerns about the continued subordination of Blacks in particular prompted the Presidential “conversation on race,” from which this paper and this entire Conference stem. RACIAL PROFILING IN POLICING CITIZENS Limitations of space preclude detailed consideration of other noteworthy topics such as allegations of racial discrimination in resort to violence by police (Kennedy, 1997:113–125). One reason for focusing on racial profiling by police, as opposed to racially discriminatory police violence is that racial profiling, though less dramatic than racially discriminatory police violence, directly touches more people. Furthermore, as a matter of policy, racial profiling by police is far more controversial than racially discriminatory resort to violence. Although no persons in positions of governmental authority publicly defend racial discrimination in the infliction of force, some officials and commentators do defend some forms of racial profiling (Goldberg, 1999). Police routinely use a person’s race in calculating whether, or to what extent, to subject that person to surveillance, questioning, searching, or perhaps some greater level of investigation (Kennedy, 1997; Cole, 1998; Harris, 1997; Sklansky, 1997; Maclin, 1998). Police use of racial characteristics as probabilistic hints of suspiciousness is widely known as “racial profiling.” Critics of racial profiling often portray it as a practice under which police stop, question, and/or search persons “solely” on the basis of their race. In actuality, in profiling, race is typically not the only indicator of a need for caution, a level of risk, or a risk of danger. However, race is perceived by police officials doing the profiling as a negative trait that marks the bearer of that trait as a person more likely to cause a criminal problem than similarly situated people without that trait. These police officials thus view and treat Blacks—especially young Black men—differently than similarly situated Whites. This differential treatment on a racial basis is racial discrimination. This is not to say—at least not yet—that this racial discrimination is unjustified. The point, for now, is simply that racial profiling is a type of racial discrimination even though proponents of this practice often decline to use the term “discrimination” when defending it. That police routinely use racial proxies in making determinations of suspiciousness is well established. Some officers do so, but later claim that they do not. Other officers do so, and candidly admit the nature of their conduct. When courts have been asked to repudiate the practice of

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America Becoming: Racial Trends and Their Consequences - Volume II using race, along with other variables, in situations in which there exist no obvious signs of an intent to commit a crime, they have generally refused to do so. A statement that mirrors the existing conventional wisdom within the judiciary was made in a finding by a U.S. court of appeals upholding the legality of a search based on racial profiling conducted by Drug Enforcement Agency (DEA) agents. In United States v. Weaver, DEA officers were asked to explain why they stopped and questioned a passenger who had deplaned from a flight originating in Los Angeles, California, and terminating in Kansas City, Missouri. The agents explained, under oath, that they investigated the passenger because he was “roughly dressed,” young, aboard a flight from a notorious exporting center for drugs to a notorious importing center for drugs, had no checked luggage, possessed two carry-on bags, appeared to be nervous…and was Black. In finding for the United States, the court declared (United States v. Weaver, 966 F. 2d 391, CA 8 1992; cert, denied, 506 U.S. 1040, 1992) that, “Large groups of our citizens should not be regarded by law enforcement officers as presumptively criminal based upon their race.” However, the court went on to say: Facts are not to be ignored simply because they may be unpleasant— and the unpleasant fact in this case is that [the DEA agent] had knowledge, based upon his own experience and upon the intelligence reports he had received from the Los Angeles authorities, that young male members of the Black Los Angeles gangs were flooding the Kansas City area with cocaine. To that extent, then, race, when coupled with the other factors [the agent] relied upon, was a factor in the decision to approach and ultimately detain [the suspect]. We wish it were otherwise, but we take the facts as they are presented to us, not as we would like them to be. One noteworthy feature of this finding is the casual, impressionistic cast of its empirical underpinnings. A dissenting judge argued that his colleagues lacked the information needed to gauge whether, or the extent to which, Blackness actually correlated with a higher risk of drug trafficking. The judge maintained that, “If we had evidence that young Blacks in Los Angeles were more prone to drug offenses than young Whites, the fact that a young person is Black might be of some significance.” He noted, though, that the government had presented no evidence on this point, but had simply relied on common impressions as a basis for a decision. Insisting on a showing of concrete and precise evidence before using race as proxy, the dissenting judge argued that “use of race as a factor [in determining suspiciousness] simply reinforces the type of stereotyping that lies behind drug-carrier profiles. When public officials begin to regard large groups of citizens as presumptively criminal, this country is in a perilous situation indeed.”

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America Becoming: Racial Trends and Their Consequences - Volume II A second noteworthy feature of the court’s statement (as well as that of the dissenting judge) is the assumption that a simple showing of a correlation between the bearing of certain traits, including race, and the commission of certain crimes would justify police use of that trait as a proxy for enhanced risk. This runs counter to strong trends in federal constitutional antidiscrimination law. Generally speaking, any governmental use of racial distinctions is strongly discouraged. Such conduct is presumed to be invalid unless the government can show a compelling reason why the drawing of racial distinctions is necessary, and that the racial lines drawn are narrowly tailored to address the exigency said to necessitate the racial discrimination. Judicial discouragement of governmental use of racial discrimination has been vigorously pursued against affirmative action programs.2 That such discouragement is absent, or at a lesser pitch, in the context of police interference with persons of color is itself a revealing anomaly that, perhaps, discloses a line of judicial racial discrimination. Police use of racial proxies in determining suspiciousness generates anger, humiliation, distrust, and resentment that is deeply felt by large sectors of Black communities. A consequence is lessened respect for the guardians of law and order in many of the communities most in need of effective public policing. Black journalist Don Wycliff states, for example, that notwithstanding his middle-class status and law-abiding character, he feels “an ambivalence tilting towards antipathy for the police.” He feels that way, he explains, because “a dangerous, humiliating…encounter with the police is almost a rite of passage for a Black man in the United States” (Wycliff, 1987). Similarly, Don Jackson, a Black man and a former police officer, writes that “police have long been the greatest nemesis of Blacks…whether we are complying with the law or not. [Police use of racial proxies have signaled to Blacks] that there are cars we are not supposed to drive, streets we are not supposed to walk. [The Black American] finds that the most prominent reminder of his second-class citizenship are the police” (Jackson, 1989:A25). A large and growing literature repeats and elaborates on the sentiments expressed by Wycliff and Jackson.3 Henry Louis Gates, Jr. (1995), wrote a particularly instructive article touching on this subject soon after 2   See e.g., Adarand Constructors, Inc v. Pena, 115 S. Ct. 2097 (1995); Shaw v. Hunt, 116 S. Ct. 1894 (1996); Hopwood v. Texas, 78 F. 3d 932 (CA 5 1996), cert, denied , 116 S. Ct. 2581 (1996). 3   For a report by a statistician that supplies a more objective gloss on these subjective perceptions see John Lamberth, Driving While Black; A Statistician Proves That Prejudice Still Rules the Road, August 16, Washington Post, 1998.

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America Becoming: Racial Trends and Their Consequences - Volume II the acquittal of O.J.Simpson on charges of murder. Examining responses by elite Blacks to the furor surrounding that acquittal, Gates relates: Blacks—in particular, Black men—swap their experience of police encounters like war stories, and there are few who don’t have more than one story to tell. Erroll McDonald, one of the few prominent Blacks in publishing, tells of renting a Jaguar in New Orleans and being stopped by the police—simply “to show cause why I shouldn’t be deemed a problematic Negro in a possible stolen car.” …Nor does William Julius Wilson wonder why he was stopped near a small New England town by a policeman who wanted to know what he was doing in those parts. There’s a moving violation that many African-Americans know as D.W.B.: Driving While Black. In the late 1990s, there was a groundswell of attention paid to the issue of “racial profiling” (e.g., New York Times, 1999; Holmes, 1999a; St. Louis Post-Dispatch, 1999; Drummond, 1999). Legislation that would encourage the collection of data on the racial demographics of police surveillance and investigation has been proposed in Congress.4 The Report by the Advisory Board to the President’s Initiative on Race stated that racial profiling should receive greater scrutiny from the Executive Branch (The President’s Initiative on Race Advisory Board, 1998). In 1999, President Clinton promulgated an Executive Order instructing federal law enforcement agencies to collect racial data on persons stopped or arrested and commented that, in his view, racial profiling “is wrong…destructive and…must stop” (Holmes, 1999b; Fletcher, 1999). Although these developments may seem, at first blush, clear and encouraging, the reality of the controversy surrounding racial profiling is ambiguous and sobering. A major problem is that the term “racial profiling” is quickly and quietly becoming defined all too narrowly as merely the most blatant and indefensible version of racial profiling—an exclusive or heavy emphasis on race in determining suspiciousness, a practice that a consensus of opinion already condemns. At the same time, the more widespread practice of using race as a probabilistic marker, along with other indicia of suspiciousness, is being insulated from scrutiny and reform by a widespread failure to acknowledge that it, too, constitutes racial profiling and thus racial discrimination. As racial discrimination, racial profiling is a form of social differentiation and should be made to bear a very heavy burden of justification. Unfortunately, racial profiling is 4   See, e.g., the proposed Traffic Stops Statistics Act of 1997, H.R. 118, 105th Congress (1997), which would require the collection of information about drivers stopped for traffic offenses, including the race of the driver, the reason for the stop, and the rationale for any search following the stop.

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America Becoming: Racial Trends and Their Consequences - Volume II likely to continue as a lawful form of police practice for the foreseeable future, so long as it is implemented with sufficient politeness and subtlety to avoid a clear confrontation with the racial logic that it embodies. PREEMPTIVE CHALLENGE IN JURY SELECTION Jury service is a second area in which both real and perceived racial discrimination have nourished distrust of the administration of criminal justice. A successful challenge to a state law that expressly excluded Blacks on a racial basis marked the first time that the Equal Protection Clause of the Federal Constitution was interpreted in a race-relations context (Strauder v. West Virginia, 100 U.S. 303 1879). Since 1880, hundreds of cases have stemmed from allegations of racial discrimination in the selection of jurors (Kennedy, 1997; Colbert, 1990; Schmidt, Jr., 1983). Such allegations maintain a significant presence on the dockets of state and federal courts. Things have changed considerably since the 1950s when, in the southern United States, well-known, officially sponsored customs purposefully excluded Blacks en masse from jury service.5 Blatant, large-scale campaigns to bar Black jurors have largely been erased by statutory reforms, along with rigorous judicial enforcement of antidiscrimination norms. It is still true, however, that purposeful racial discrimination continues to play a substantial role in the selection of jurors. The entry point for the discrimination is a device called the peremptory challenge—a privilege, granted by statute, that generally enables attorneys to reject the seating of a certain number of otherwise eligible jurors without having to convey reasons for doing so. Until 1986, attorneys could lawfully take race into account in deploying their peremptory challenges. If a prosecutor believed that he was more likely to obtain a conviction by using his peremptory challenges to exclude all Blacks from a jury, courts ruled that he could properly do so under the federal constitution. In 1986, however, 5   In 1959, the U.S. Court of Appeals for the Fifth Circuit took judicial notice not only of continuing widespread racial discrimination, but also of the fact that “lawyers residing in many southern jurisdictions rarely, almost to the point of never, raise the issue of systematic exclusion of Negroes from juries.” See United States ex rel Goldsby v. Harpole, 263 F. 2d 71, 82 (CA 5 1959). Five years later, the same Court of Appeals noted that it understood “what happens when a white attorney for a Negro defendant raises the exclusion issue in a county dominated by segregationist patterns and practices: both the defendant and his attorney will suffer from community hostility.” Whitus v. Balkom, 333 F. 2d 496 (CA 5 1964) cert, denied, 379 U.S. 931 (1964). Thirty years later, community pressures continued to dissuade some defense attorneys from raising jury discrimination claims in the Deep South. See Gates v. Zant, 863 F. 2d 293, cert denied, 493 U.S. 945 (1989) (see also Bright, 1995).

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America Becoming: Racial Trends and Their Consequences - Volume II in Batson v. Kentucky (476 U.S. 79 [1986]), the Supreme Court changed course, ruling that prosecutors could no longer lawfully take race into account in calculating how to deploy peremptory challenges. The Court did not abolish peremptory challenges; it simply declared that race could no longer lawfully be among that vast universe of variables used to reject prospective jurors—e.g., age, occupation, place of residence, too much education, too little education, pure whimsy, etc. Given this breadth of discretion left to attorneys, some observers anticipated from the outset of Batson that many attorneys would continue their racially discriminatory ways. After all, the wholly unregulated peremptory challenge had a long and cherished lineage. Many attorneys believe that “race matters” in courtrooms and that, therefore, taking race into account in choosing the ultimate arbiters of a dispute is eminently “reasonable” and not merely “prejudiced.” Many attorneys believe, moreover, that it is difficult to detect a racially discriminatory peremptory challenge as opposed to a peremptory challenge based on some other, nonracial, basis. For these and other reasons, the fear that the new rule on peremptory challenges would be substantially underenforced has largely been confirmed. Many observers of courtrooms across the nation report that, behind a thin disguise of well-rehearsed pretexts, attorneys continue to deploy racially discriminatory peremptory challenges. Quantifying the incidence of racial discrimination in this area is difficult. Perpetrators of the unlawful conduct have strong reasons to cover their tracks.6 It is clear, though, that the extent of the unlawful racial discrimination is considerable. In People v. McDonald (530 N.E. 2d 1351, Ill. 1988), for example, three Black men were prosecuted for kidnapping and rape. At trial, the prosecution used 16 of its peremptory challenges to remove all of the Blacks in the pool of potential jurors. An all-White jury then proceeded to convict the defendants. Although Batson had not been announced at the time of the trial, it was available by the time their convictions were appealed. Pursuant to a Supreme Court ruling on retroactivity, the Supreme Court of Illinois decided that the defendants should have an opportunity to prove that the prosecutors had been racially discriminatory in their deployment of peremptory challenges. The defendants easily established a prima facie case of discrimination, given the conspicuous racial pattern of the prosecution’s peremptory challenges. 6   Prior to the Supreme Court’s ruling in Batson v. Kentucky, Judge Leonard D.Wexler noted that many attorneys confronting a rule prohibiting them from using racially discriminatory peremptory challenges “will be under enormous pressure to lie regarding their motives…. Indeed, it is even possible that an attorney will lie to himself in an effort to convince himself that his motives are legal” —i.e., nonracial (King v. County of Nassau, 581 F. Supp. 493, 501–502, E.D. N.Y. 1984).

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America Becoming: Racial Trends and Their Consequences - Volume II The prosecution was then asked whether it could give nonracial explanations for its actions. Inasmuch as the prosecution had been initiated prior to Batson, it would have been understandable for the prosecutor to have stated candidly that, relying on precedent, he had racially discriminated in his use of peremptory challenges. That, however, is not how the prosecutor responded. Instead he offered nonracial explanations that were transparently specious. For example, the prosecutor claimed to have challenged a 34-year-old Black man because of his youth, yet he had refrained from challenging an 18-year-old White man. He claimed to have peremptorily challenged a 63-year-old Black man on the basis of his advanced age, yet he had refrained from challenging a 67-year-old White man. The Supreme Court of Illinois agreed with a trial court that, regardless of the prosecutor’s denials, he did in fact engage in prohibited racial discrimination. In many other cases, however, in which the racial discrimination is evident, judges have for various reasons declined to make a finding of racial discrimination (Raphael and Ungvarsky, 1993). Surveying all reported decisions of federal and state courts between April 30, 1986 (the date of the Batson decision), and December 31, 1993, one researcher uncovered 165 cases in which judges determined that prosecutors used peremptory challenges in a racially discriminatory fashion. This figure amounts to a little more than 10 percent of the 1,101 cases in which criminal defendants alleged that prosecutors were discriminating racially (Melilli, 1996). By itself this figure is troubling. It is an indication of the extent to which some influential persons, including public servants, believe that they can openly evade prohibitions against racial discrimination, People v. McDonald being a case in point. More troubling still is that this figure probably undercounts the actual amount of racial discrimination, because it is likely that judges tend to find violations of the Batson ruling only when the evidence of discrimination is clear—a condition that a well-schooled attorney can often avoid. The difficulty of enforcing Batson, along with concern that underenforcement will exacerbate public distrust of the criminal justice system, has prompted some observers to demand either a decrease in the number of peremptory challenges available to attorneys or elimination of peremptory challenges altogether. That, however, is unlikely. Courts evince little inclination to invalidate the laws authorizing peremptory challenges; and legislatures evince little inclination to eliminate statutorily a practice that many attorneys continue to embrace as an essential feature of the American adversarial system of litigation. A second major issue involving the racial demographics of juries involves the question of whether affirmative, race-conscious measures ought to be undertaken to ensure the presence of at least some racial minorities on every jury (or at least every jury deciding a case in which

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America Becoming: Racial Trends and Their Consequences - Volume II racial minorities are parties). This question is posed because, in many jurisdictions, even in the absence of any purposeful racial discrimination, conventional modes of recruitment and selection yield disproportionately small numbers of prospective Black jurors (Kairys et al., 1977; Cornell Law Review, 1997). The underrepresentation of Blacks on juries is attributable to a variety of factors. Voter registration lists are the most commonly used source for lists of prospective jurors. Many Blacks are not registered to vote, and hence do not appear on these lists. Further, to be eligible for jury service, one must receive, complete, and return a questionnaire sent to all prospective jurors. Because Blacks tend to move more often than Whites, a larger percentage of Blacks never receive questionnaires that have been mailed to outdated addresses. When questionnaires are received, Blacks, on average, return them at lower rates than Whites. Finally, among those who do return the questionnaires, larger percentages of Blacks than Whites are disqualified for such things as language deficiencies or conviction for a felony. A consequence of this small pool is the likelihood that in a substantial number of cases, all-White juries (or juries with no Black participants) will decide cases in which Blacks or other racial minorities are defendants or victims. In a county in Minnesota, for example, 9 percent of the adult population in 1990 were people of color, yet racial minorities constituted only 5.3 percent of the people who sat on grand juries. In 40 percent of the cases, all-White grand juries determined whether to indict suspects; and in this jurisdiction, 71 percent of the criminal suspects and 66 percent of the victims of criminality were people of color (Alschuler, 1995). This is a circumstance that strikes some observers as inherently unfair (Ramirez, 1994; Van Ness, 1994; Potash, 1973). Professor Albert W.Alschuler contends, for example, that “few statements are more likely to evoke disturbing images of American criminal justice than ‘the defendant was [indicted or] tried by an all-White jury’” (Alschuler, 1995). Critics of procedures that yield underrepresentation of Blacks and other people of color have responded in several ways. One response has been to challenge the legality of criteria—e.g., registration as a voter or absence of a felony conviction—that disproportionately exclude Blacks from jury service, albeit with no racial purpose to do so. Courts, however, have generally rebuffed such challenges (Kennedy, 1997; Williams, 1990). Another approach is to take affirmative, race-conscious steps to recruit greater numbers of colored prospective jurors or, going further, to ensure a minimum number of colored jurors in any given proceeding (King, 1993). One proposal would have judges take racial demographics into account in determining the locale to which cases should be transferred when they conclude that defendants cannot receive a fair hearing at the original

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America Becoming: Racial Trends and Their Consequences - Volume II place of trial. A judge proceeded in this fashion in the recent trial of the White man accused of murdering Medgar Evers, a Black civil rights activist. Judge L.Breland Hilburn of the Hinds County, Mississippi Circuit Court, moved the trial from Jackson, Mississippi, because of prejudicial pretrial publicity. Faced with the task of determining where to move the trial to, Judge Hilburn chose a jurisdiction with “close to the same racial balance” as Hinds County (Kennedy, 1997). A second proposal would have court administrators use racially targeted mailings of jury questionnaires to predominantly minority residential areas, organizations, and churches, in an effort to elevate the number of eligible minority jurors. A third proposal would involve subtracting from a jury pool the names of prospective jurors of a majority race in order to make the pool racially “balanced.” A fourth proposal would involve reserving a certain number of seats for racial minorities on juries. These proposals have been put into operation in various parts of the country. That this is so indicates that a substantial number of Americans want not only the absence of purposeful racial exclusion in the process of selecting juries, but also want racially mixed juries—even if obtaining that result means using race as a factor in the selection process. There is a trend, in other words, favoring methods of jury selection that facilitate, if not require, the creation of juries that “look like America.” On the other hand, there also exists a counter trend that is resistant to race-specific selection schemes. These reforms have been tested judicially to a surprisingly small extent. The existing case law suggests, however, that the future of these reforms is dim. Here, as elsewhere in the controversial area of race-relations law, courts are becoming increasingly skeptical of the legitimacy of policies that take race into account in seeking to redress past inequities or to ensure racial diversity within institutions that might lack a significant presence of people of color.7 RACIAL DISPROPORTIONS IN PUNISHMENT The race question in punishment is another subject with respect to which opinions conflict sharply. Everyone would concede that, for a long period of American history, Blacks were formally discriminated against 7   See, United States v. Greene, 971 F. Supp. 1117, 1142 n. 25, E.D.Mich. 1997 (noting without deciding that race-dependent plan “to increase Black representation on the jury is, essentially, a modified system of racial preference, which, regardless of…good-faith motivations…might be violative of equal protection guarantees.”); State v. Moore, 404 S.E. 2d. 845, N.C. 1991 (North Carolina Supreme Court invalidates conviction based on race-dependent selection of black grand jury foreman) (see, also, Kennedy, 1997:253–255; King, 1993:27).

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America Becoming: Racial Trends and Their Consequences - Volume II in the setting of punishments. Before the Civil War, statutes expressly prescribed more severe punishments for a Black person who engaged in prohibited conduct than for a White person who engaged in the same conduct. Many would concede that, despite formal prohibitions against racial discrimination, informal but blatant racial discrimination played a major role in the imposition of criminal punishments until the civil rights revolution of the 1950s and 1960s. The most striking instance of this sort of discrimination involved capital punishment, especially capital punishment for rape. In 1949, for example, a group of seven Black men in Virginia were convicted of, and sentenced to death for, raping a White woman. On appeal, the defendants’ attorneys showed that between 1908 and 1949, no White man had been executed for rape, though 45 Black men had been put to death for that crime. During those same years, almost twice as many Blacks as Whites convicted of rape were sentenced to life imprisonment (Rise, 1995). The Virginia courts concluded that racial discrimination played no role in the sentence imposed on the seven Black men, and shortly thereafter they were put to death (Hampton v. Commonwealth, 58 S.E. 2d 288, 1950). This court decision has been followed by scores of others in which state and federal tribunals have consistently declined to acknowledge racial discrimination in punishment, even in the face of the most provocative statistical patterns (Kennedy, 1997; Wolfgang and Riedel, 1976; Dorin, 1981). That racial discrimination in punishment once existed as a widespread and easily discernible phenomenon is not controversial. Nor is it controversial to say, now, that judges and other authoritative decision makers erred in dismissing as unfounded allegations of racial discrimination in punishment. What is intensely controversial, however, is the charge that these older patterns persist, that racial discrimination continues to infect sentencing, and that decision makers continue to close their eyes and ears to this invidious practice. The two contexts in which this charge emerges most saliently today involve the imposition of the death penalty and the enforcement of the “war on drugs,” particularly that arena of the drug war focused on the eradication of “crack” cocaine. The leading contemporary case concerning allegations of racial discrimination in the administration of capital punishment is McCleskey v. Kemp (481 U.S. 279, 1987), which was decided by the U.S. Supreme Court in 1987. A decade previously, a jury in Georgia—constituted by 11 Whites and 1 Black—sentenced Warren McCleskey, a Black man, to death for the murder of a White police officer, Frank Schlatt, during the course of a robbery. On appeal, McCleskey’s attorneys challenged the legality of Georgia’s regime of capital punishment on the grounds that it was infected by racial bias, as revealed in striking disparities in sentencing. Even

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America Becoming: Racial Trends and Their Consequences - Volume II after taking into account a wide range of nonracial variables that would likely affect sentencing—e.g., age, level of education, criminal record, military record, method of killing, motive for killing, relationship of defendant to victim and so forth—researchers, led by Professor David Baldus, determined that the race of the victim continued to have a statistically significant correlation with the imposition of capital punishment (Baldus et al., 1983). Professor Baldus concluded that the odds of being condemned to death were 4.3 times greater for defendants who killed Whites than for defendants who killed Blacks—a variable nearly as influential as a prior conviction for armed robbery, rape, or even murder. By a bare majority (five to four), the Supreme Court ruled against McCleskey. It concluded that, “At most the Baldus study indicates a discrepancy that appears to correlate with race.” The opinion of the Court noted several considerations of policy that influenced the majority’s reasoning. One was the need to allow ample latitude in sentencing and use of discretion in making the unique decision of whether to end the life of an individual as a punishment for criminal conduct. Another concern was that ruling in favor of McCleskey would open a Pandora’s box of litigation. The Court declared, “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system [because, if accepted, the Court] could soon be faced with similar claims as to other types of penalty” from members of other groups alleging bias.8 Finally, the Court invoked considerations of institutional competence and judicial restraint as reasons to avoid intervention; “McCleskey’s arguments are best presented to legislative bodies. …It is the legislatures, the elected representatives of the people, that are constituted to respond to the will and consequently the moral values of the people.” After the McCleskey decision, critics of it did attempt to address the problem of unexplained racial disparities in capital sentencing with a statutory solution. Proposed legislation, dubbed the Racial Justice Act, would have established as prima facie evidence of racial discrimination the type of statistical showing that McCleskey had relied on (Schoeman, 1995; Berger et al., 1989). The Supreme Court held that, in order to prevail on a constitutional claim, a defendant would have to show purposeful racial discrimination in his own particular case. The Court was unwilling to allow a defendant to prevail on the basis of inferences generated by unexplained and therefore suspicious racial patterns in other cases. By contrast, the proposed Racial Justice Act would have created for a defendant the rebuttable presumption that a statistically significant racial disparity in death 8   Id. at 315.

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America Becoming: Racial Trends and Their Consequences - Volume II sentences in a given locale meant that wrongful racial discrimination tainted his sentence, too. The defendant would not automatically win at that point; the disparity would count only as a rebuttable presumption. The locale would be prevented from carrying out the execution, unless it could come forward and show either (a) that there were nonracial reasons that persuasively explained the apparently racial sentencing disparities or (b) that, even in the absence of racial discrimination, the defendant at issue would still have been sentenced to death in light of the enormity of his crime. Although the House of Representatives twice passed the Racial Justice Act, it failed to win the support of the Clinton Administration, was strenuously opposed by vocal critics (mainly Republicans) in the Senate, and bears little chance of enactment in the foreseeable future. Opponents of the Racial Justice Act contend, as did the dissenting members of the House Committee on the Judiciary, that “While it may be true that killers of White victims are more likely to receive the death penalty than killers of Blacks, this statistical disparity is easily explained by the presence of mitigating or aggravating factors which account for the differences in sentences” (U.S. Congress, House Committee on the Judiciary, 1994); however, in light of the data regarding capital punishment for rape, the Baldus study, and the many other investigations that have consistently reached similar conclusions, it cannot reasonably be said that the racial disparities in question are “easily explained” by nonracial variables. Indeed, given the past and present realities of racial sentiment in the United States, it would be extraordinary if racial bias did not appreciably affect sentencing, including—or perhaps, especially—capital sentencing. This is not to minimize the changes that have significantly improved race relations since the 1950s. It is to note, however, that alongside notable discontinuities in American race relations are certain continuities as well, including myopia when it comes to recognizing invidious racial discrimination in punishment. The war on drugs frames another hotly contested area in which many allege, and many deny, that racial discrimination substantially affects punishments. That this arena of crime policy would become a principal site of bitter discord should not be at all surprising. On the one hand, minority communities have been peculiarly disrupted by commerce in hard drugs. On the other hand, minority communities have been peculiarly disrupted by efforts to suppress this commerce, especially the imposition of long-term incarceration for drug trafficking. These trends have nourished various apprehensions. One is that the war on drugs is purposefully ineffective because “The White Establishment” actually wants people of color to be dependent on illicit drugs. Another is that the war on

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America Becoming: Racial Trends and Their Consequences - Volume II drugs is too dependent on punishment and has become a virtual war against colored people, especially young Black men. No single site in the war on drugs more vividly focuses these tensions than the front on which the U.S. government seeks to obliterate trafficking in crack cocaine. A federal statute enacted in 1986 criminalizes the distribution of crack cocaine with unusual severity. Under that law, a person convicted of possession with intent to distribute 50 grams or more of crack must be sentenced to no fewer than 10 years in prison; by striking contrast, a person has to be convicted of possession with intent to distribute at least 5,000 grams of powder cocaine before being subject to a mandatory minimum of 10 years—a 100:1 ratio in terms of intensity of punishment. Moreover, under a federal statute enacted in 1988, a person caught merely possessing 1 to 5 grams of crack cocaine is subject to a mandatory minimum sentence of 5 years in prison, which makes crack the only drug for which there exists a mandatory minimum penalty for a first offense of simple possession (Anti-Drug Abuse Act of 1988, P.L. 100–690, 102 Stat. 4181, 1988). Many see this dramatic difference in punishment in racial terms. For one thing, in the perception of many, there exists a fundamental similarity between trafficking in crack and powder: cocaine is cocaine, this argument runs. For another, there exists a clear difference in the racial composition of the pools of people arrested, prosecuted, convicted, and imprisoned for these apparently similar drug offenses. In 1992, 92.6 percent of the defendants convicted for crack cocaine offenses nationally were Black, and only 4.7 percent were White. In comparison, 45.2 percent of defendants sentenced for powder cocaine offenses were White and only 20.7 percent were Black. To many observers, the difference in punishment conjoined with the racial difference in rates of prosecution and incarceration indicates, or at least suggests, racial inequity. Some jurists have argued that the crack-versus-powder distinction in sentencing violates the Equal Protection Clause of the federal constitution. That argument, though, has been rejected by almost all of the courts that have ruled on the question. The Minnesota Supreme Court did invalidate that state’s analogue to the federal crack-versus-powder distinction. Several judges have castigated the 100:1 distinction as excessive and needlessly provocative. Several former Congressional supporters of the crack-versus-powder distinction have changed their minds. In 1995, the U.S. Sentencing Commission recommended eliminating the sentencing differential distinguishing traffickers in crack from traffickers in powder. The Commission suggested a level-down equalization, under which traffickers in crack would have been punished no more harshly than traffickers in powder. The Commission’s recommendations would have gone into effect automatically, absent specific disapproval from both Houses of

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America Becoming: Racial Trends and Their Consequences - Volume II Congress. With the support of President Clinton, however, the Congress did disapprove—the first time it had done so in the Commission’s history. There is good reason to eschew charges that Congress sought purposefully to target Blacks by enacting the crack-versus-powder distinction. Black members of Congress with long records of attentiveness to claims of racial justice initiated and supported “cracking down on crack.” No charges of racism were heard when the crack-versus-powder sentencing differential was initially enacted. Sensational reports in newspapers and on television about the crack epidemic understandably galvanized public opinion and, with it, congressional desires to control this perceived new menace. Moreover, apart from perceptions, there were real differences between crack and powder and other illicit drugs, differences that could reasonably justify punishing trafficking in crack cocaine more harshly than trafficking in powder cocaine. Putting aside controverted scientific testimony about the relative addictiveness and toxicity of crack versus powder, one difference between the two is accepted universally—crack is sold in smaller quantities at lesser prices in a more convenient form and is, therefore, more accessible to larger groups of people. Crack democratized the cocaine high. It “reinvigorated the cocaine market and greatly increased the population of cocaine abusers” (Duke and Gross, 1993; Kleiman, 1992).9 That distinction alone could provide a basis for distinguishing crack and powder for purposes of punishment, notwithstanding their common cocaine lineage. Even if crack and powder were otherwise identical, the greater market-ability of crack means that it has more potential reach than powder and can thus be sensibly perceived as more socially dangerous. This is not an endorsement of the crack-versus-powder distinction. There are weighty, perhaps compelling, arguments against it, especially in light of information gained from more than a decade’s worth of experience with existing crack penalties. It seems patently wrong to punish a small-scale crack dealer equally, or even more harshly, than a large-scale trafficker in powder cocaine. Moreover, even if racial discrimination played no active role in establishing the crack-versus-powder differential, the appearance of racial unfairness generated by its results forms an important part of an argument in favor of reform. Furthermore, there exists the assertion that (predominantly White) policy-making bodies would 9   According to Professor Kleiman, in 1978 “cocaine was something between a curiosity and a menace…. By 1988, cocaine had become the drug problem par excellence, with a retail market nearly equal to those for heroin and marijuana combined…. How did a minor drug become so major, a seemingly benign drug so horrible? In a word, crack happened.” Id.

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America Becoming: Racial Trends and Their Consequences - Volume II react differently if the racial shoe were on the other foot—if more than 90 percent of crack offenders were White instead of Black. If that were so, this speculation runs, policy would be changed because of the clamorings of politically influential constituents terrified by the prospect of their sons and daughters facing 5- and 10-year mandatory minimum prison sentences for relatively low-level drug offenses. There exist developments that run counter to this speculation. For example, Whites predominate in the trafficking and use of methamphetamine. Yet a federal law was recently enacted that enhanced the punishment for dealing this drug to levels comparable to the sentences imposed on crack dealers (Comprehensive Methamphetamine Control Act of 1996, 21 U.S.C. 801, Pub. L. 104–237, 101 Stat. 3099 [October 3, 1996]). After the Minnesota Supreme Court invalidated that state’s crack-versus-powder sentencing differential under the state constitution, the state legislature was put to the test of either leveling up (raising the criminal penalty on powder offenses to that reserved for crack offenses) or leveling down (lowering the penalty on crack offenses to that reserved for powder offenses). The legislature chose to level up, which can be taken as an indication that, regardless of the racial composition of those imprisoned for long periods, policy makers are insistent and consistent in their attack on illicit drugs. On the other hand, leveling up to equalize punishments will probably not completely negate the suspicions of some skeptics who will continue to believe that racial selectivity accounts, at least in part, for the continuation of severe sentencing policies that have the effect of incarcerating disproportionately large numbers of Blacks. That is, the number of Whites incarcerated for longer periods because of leveling up would remain relatively small in comparison with the overall total White population. Skeptics would likely contend that this small number of marginalized Whites would merely serve as a sacrifice to legitimate a policy that would continue to burden Blacks disproportionately. These skeptics would embrace the contention of Professor Alfred Blumstein who has hypothesized that A major factor contributing to [the de facto decriminalization of marijuana] was undoubtedly a realization that the arrestees were much too often the children of individuals, usually White, in positions of power and influence. Those parents certainly did not want the consequences of a drug arrest to be visited on their children, and so they used their leverage to achieve a significant degree of decriminalization (Blumstein, 1993:4). Critics of the war on drugs in general, and the crack-versus-powder distinction in particular, assert, echoing Blumstein, that punitive policies would be different, less severe, if as large a percentage of White people as

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America Becoming: Racial Trends and Their Consequences - Volume II Black people were incarcerated pursuant to these policies (Cole, 1998). Perhaps those who espouse this view are wrong, but one cannot dismiss their claim as wholly implausible. That one cannot do so indicates disturbingly that, despite advances toward racial justice that have been made in the United States of America since 1950, there remains much work to do, much ground to cover. REFERENCES Alschuler, A. 1995 Racial quotas and the jury. Duke Law Journal 44(4):704–743. Baldus, D., C.Pulaski, and G.Woodworth 1983 Comparative review of death sentences: An empirical study of the Georgia experience. Journal of Criminal Law and Criminology 74(3):661–753. Berger, V., N.Walthour, A.Dorn, D.Lindsey, P.Thompson, and G.von Helms 1989 Comment, Too much justice: A legislative response to McCleskey v. Kemp. Harvard Civil Rights—Civil Liberties Law Review 24(2):437–528. Blumstein, A. 1993 Making rationality relevant: The American Society of Criminology 1992 Presidential Address. Criminology 31(1):1–16. Bonczar, T., and A.Beck 1997 Lifetime Likelihood of Going to State or Federal Prison, NCJ-160092 (March). Washington, D.C.: U.S. Department of Justice, Office of Justice Programs. Bright, S. 1995 Discrimination, death and denial: The tolerance of racial discrimination in infliction of the death penalty. Santa Clara Law Review 35(2):433–483. Bueker, J. 1997 Note, Jury source lists: Does supplementation really work? Cornell Law Review 82(2):390–431. Colbert, D. 1990 Challenging the challenge: Thirteenth Amendment as a prohibition against the racial use of peremptory challenges. Cornell Law Review 76(1):1–128. Cole, D. 1999 No Equal Justice: Race and Class in the American Criminal Justice System. New York: New Press. Dorin, D. 1981 Two different worlds: Criminologists, justices and racial discrimination in the imposition of capital punishment in rape cases. Journal of Criminal Law and Criminology 72(4):1667–1698. Drummond, T. 1999 It’s not just in New Jersey; Cops across the U.S. often search people just because of their race, a study says. Time (June 14). Duke, S., and A.Gross 1993 America’s Longest War: Rethinking Our Tragic Crusade Against Drugs. New York: Putnam. Fletcher, M. 1999 Clinton orders data collection in effort to halt “racial profiling.” Washington Post (June 10). Gallup Poll Monthly 1995 October.

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America Becoming: Racial Trends and Their Consequences - Volume II Gates, H., Jr. 1995 Thirteen ways of looking at a black man. New Yorker (October 23). Goldberg, J. 1999 The color of suspicion. New York Times Magazine (June 20). Hagan, J., and R.Peterson 1995 Criminal inequality in America: Patterns and consequences. In Crime and Inequality, J.Hagan and R.Peterson, eds. Stanford, Calif.: Stanford University Press. Harris, D. 1997 “Driving While Black” and all other traffic offenses: The Supreme Court and pretextual traffic stops. Journal of Criminal Law and Criminology 87(2):544–582. Harvard Law Review 1988 Developments in the law—Race and the criminal process. Harvard Law Review 101(7):1472–1641. Holmes, S. 1999a The stark reality of racial profiling. New York Times (June 13). 1999b Clinton orders investigation on possible racial profiling. New York Times (June 10). Jackson, D. 1989 Police embody racism to my people. New York Times (January 23). Kairys, D., J.Kadane, and J.Lehoczky 1977 Jury representativeness: A mandate for multiple source lists. California Law Review 65(4):776–827. Kennedy, R. 1997 Race, Crime and the Law. New York: Pantheon Books. King, N. 1993 Racial jurymandering: Cancer or cure? A contemporary review of affirmative action in jury selection. New York University Law Review 68(4):707–776. Kleiman, M. 1992 Against Excess: Drug Policy for Results. New York: Basic Books. Lamberth, J. 1998 Driving while Black; A statistician proves that prejudice still rules the road. Washington Post (August 16). Maclin, T. 1998 Race and the Fourth Amendment. Vanderbilt Law Review 51(2):333–393. McAdams, R, ed. 1998 Symposium on race and criminal law. Chicago Kent Law Review 73:467. Melilli, K. 1996 Batson in practice: What we have learned about Batson and peremptory challenges. Notre Dame Law Review 71(3):447–503. New York Times 1999 Getting the facts on racial profiling. New York Times (June 11). Potash, D. 1973 Mandatory inclusion of racial minorities on jury panels. Black Law Journal 3(1):80– 95. President’s Initiative on Race Advisory Board 1998 One America in the 21st Century: Forging a New Future—The Initiative on Race Advisory Board’s Report to the President. Washington, D.C.: U.S. Government Printing Office. Ramirez, D. 1994 The mixed jury and the ancient custom of trial by jury de medietate linguae: A history and a proposal for change. Boston University Law Review 74(5):777–818.

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America Becoming: Racial Trends and Their Consequences - Volume II Raphael, M, and E.Ungvarsky 1993 Excuses, excuses: Neutral explanations under Batson v. Kentucky. University of Michigan Journal of Law Reform 27(1):229–275. Rise, E. 1995 The Martinsville Seven: Race, Rape, and Capital Punishment. Charlottesville: University Press of Virginia. Rose, H., and P.McClain 1990 Race, Place, and Risk: Black Homicide in Urban America. Albany: State University of New York Press. Schmidt, Jr., B. 1983 Juries, jurisdiction, and race discrimination: The lost promise of Strauder v. West Virginia. Texas Law Review 61(8):1401–1499. Schoeman, P. 1995 Note, Easing the fear of too much justice: A compromise proposal to revise the Racial Justice Act. Harvard Civil Rights—Civil Liberties Law Review 30(2):543–576. Sklansky, D. 1997 Traffic stops, minority motorists, and the future of the Fourth Amendment. Supreme Court Review 271–329. Stanford Law Review 1995 Symposium, Race and remedy in a multicultural society. Stanford Law Review 47(5):819–1026. St. Louis Post-Dispatch 1999 An end to racial profiling. St. Louis Post-Dispatch (June 14). Stone, C. 1998 Race, Crime, and the Administration of Justice: A Summary of the Available Facts. Vera Institute of Justice. 1999 Race, crime, and the administration of justice: A summary of available facts. National Institute of Justice Journal (April). Tonry, M. 1995 Malign Neglect—Race, Crime, and Punishment in America. New York: Oxford University Press. U.S. Congress, House Committee on the Judiciary 1994 Dissenting Views on Racial Justice Act, Report 103–458 of the 103rd Congress, 2d Sess., March 24. 1996 Comprehensive Methamphetamine Control Act of 1996, 21 U.S.C. 801, Pub. L. 104–237,101 Stat. 3099 (October 3,1996).U.S. Department of Justice U.S. Department of Justice 1996 Criminal Victimization in the United States, 1993—A National Crime Victimization Survey. Report 23,26–27 (May). Washington, D.C.: U.S. Government Printing Office. Van Ness, D. 1994 Preserving a community voice: The case for half-and-half juries in racially-charged criminal cases. John Marshall Law Review 28(1):1–56. Williams, C. 1990 Jury source representativeness and the use of voter registration lists. New York University Law Review 65(3):590–634. Wolfgang. M., and M.Riedel 1976 Rape, racial discrimination, and the death penalty. Pp. 99–121 in Capital Punishment in the United States, H.Bedau and C.Pierce, eds. New York: AMS Press, Inc. Wycliff, D. 1987 Blacks and blue power. New York Times (February 8).