Authors: Michelle Alexander
The New Jim Crow (21 page)
In support of their claim that Armstrong should, at the very least, be entitled to discovery, Armstrong’s lawyers offered two sworn affidavits. One was from a halfway house intake coordinator who testified that, in his experience treating crack addicts, whites and blacks dealt and used the drugs in similar proportions. The other affidavit was from a defense attorney who had extensive experience in state prosecutions. He testified that nonblack defendants were routinely prosecuted in state, rather than federal, court. Arguably the best evidence in support of Armstrong’s claims came from the government, which submitted a list of more than two thousand people charged with federal crack cocaine violations over a three-year period, all but eleven of whom were black. None were white.
The district court ruled that the evidence presented was sufficient to justify discovery for the purposes of determining whether the allegations of selective enforcement were valid. The prosecutors, however, refused to release any records and appealed the issue all the way to the U.S. Supreme Court. In May 1996, the Supreme Court reversed. As in
McCleskey
, the Court did not question the accuracy of the evidence submitted, but ruled that because Armstrong failed to identify any similarly situated white defendants who should have been charged in federal court but were not, he was not entitled even to discovery on his selective-prosecution claim. With no trace of irony, the Court demanded that Armstrong produce in advance the very thing he sought in discovery: information regarding white defendants who should have been charged in federal court. That information, of course, was in the prosecution’s possession and control, which is why Armstrong filed a discovery motion in the first place.
McCleskey
, the Court did not question the accuracy of the evidence submitted, but ruled that because Armstrong failed to identify any similarly situated white defendants who should have been charged in federal court but were not, he was not entitled even to discovery on his selective-prosecution claim. With no trace of irony, the Court demanded that Armstrong produce in advance the very thing he sought in discovery: information regarding white defendants who should have been charged in federal court. That information, of course, was in the prosecution’s possession and control, which is why Armstrong filed a discovery motion in the first place.
As a result of the
Armstrong
decision, defendants who suspect racial bias on the part of prosecutors are trapped in a classic catch-22. In order to state a claim of selective prosecution, they are required to offer
in advance
the very evidence that generally can be obtained only through discovery of the prosecutor’s files. The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making. Again the courthouse doors were closed, for all practical purposes, to claims of racial bias in the administration of the criminal justice system.
Armstrong
decision, defendants who suspect racial bias on the part of prosecutors are trapped in a classic catch-22. In order to state a claim of selective prosecution, they are required to offer
in advance
the very evidence that generally can be obtained only through discovery of the prosecutor’s files. The Court justified this insurmountable hurdle on the grounds that considerable deference is owed the exercise of prosecutorial discretion. Unless evidence of conscious, intentional bias on the part of the prosecutor could be produced, the Court would not allow any inquiry into the reasons for or causes of apparent racial disparities in prosecutorial decision making. Again the courthouse doors were closed, for all practical purposes, to claims of racial bias in the administration of the criminal justice system.
Immunizing prosecutors from claims of racial bias and failing to impose any meaningful check on the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing has created an environment in which conscious and unconscious biases are allowed to flourish. Numerous studies have shown that prosecutors interpret and respond to identical criminal activity differently based on the race of the offender.
56
One widely cited study was conducted by the
San Jose Mercury News
. The study reviewed 700,000 criminal cases that were matched by crime and criminal history of the defendant. The analysis revealed that similarly situated whites were far more successful than African Americans and Latinos in the plea bargaining process; in fact, “at virtually every stage of pretrial negotiation, whites are more successful than nonwhites.”
57
56
One widely cited study was conducted by the
San Jose Mercury News
. The study reviewed 700,000 criminal cases that were matched by crime and criminal history of the defendant. The analysis revealed that similarly situated whites were far more successful than African Americans and Latinos in the plea bargaining process; in fact, “at virtually every stage of pretrial negotiation, whites are more successful than nonwhites.”
57
The most comprehensive studies of racial bias in the exercise of prosecutorial and judicial discretion involve the treatment of juveniles. These studies have shown that youth of color are more likely to be arrested, detained, formally charged, transferred to adult court, and confined to secure residential facilities than their white counterparts.
58
A report in 2000 observed that among youth who have never been sent to a juvenile prison before, African Americans were more than six times as likely as whites to be sentenced to prison for
identical
crimes.
59
A study sponsored by the U.S. Justice Department and several of the nation’s leading foundations, published in 2007, found that the impact of the biased treatment is magnified with each additional step into the criminal justice system. African American youth account for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent of the youth waived to adult criminal court, and 58 percent of youth admitted to state adult prison.
60
A major reason for these disparities is unconscious and conscious racial biases infecting decision making. In the state of Washington, for example, a review of juvenile sentencing reports found that prosecutors routinely described black and white offenders differently.
61
Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict.
58
A report in 2000 observed that among youth who have never been sent to a juvenile prison before, African Americans were more than six times as likely as whites to be sentenced to prison for
identical
crimes.
59
A study sponsored by the U.S. Justice Department and several of the nation’s leading foundations, published in 2007, found that the impact of the biased treatment is magnified with each additional step into the criminal justice system. African American youth account for 16 percent of all youth, 28 percent of all juvenile arrests, 35 percent of the youth waived to adult criminal court, and 58 percent of youth admitted to state adult prison.
60
A major reason for these disparities is unconscious and conscious racial biases infecting decision making. In the state of Washington, for example, a review of juvenile sentencing reports found that prosecutors routinely described black and white offenders differently.
61
Blacks committed crimes because of internal personality flaws such as disrespect. Whites did so because of external conditions such as family conflict.
The risk that prosecutorial discretion will be racially biased is especially acute in the drug enforcement context, where virtually identical behavior is susceptible to a wide variety of interpretations and responses and the media imagery and political discourse has been so thoroughly racialized. Whether a kid is perceived as a dangerous drug-dealing thug or instead is viewed as a good kid who was merely experimenting with drugs and selling to a few of his friends has to do with the ways in which information about illegal drug activity is processed and interpreted, in a social climate in which drug dealing is racially defined. As a former U.S. Attorney explained:
I had an [assistant U.S. attorney who] wanted to drop the gun charge against the defendant [in a case in which] there were no extenuating circumstances. I asked, “Why do you want to drop the gun offense?” And he said, “‘He’s a rural guy and grew up on a farm. The gun he had with him was a rifle. He’s a good ol’ boy, and all good ol’ boys have rifles, and it’s not like he was a gun-toting drug dealer.” But he was a gun-toting drug dealer, exactly.
The decision in
Armstrong
effectively shields this type of biased decision making from judicial scrutiny for racial bias. Prosecutors are well aware that the exercise of their discretion is unchecked, provided no explicitly racist remarks are made, as it is next to impossible for defendants to prove racial bias. It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free reign—while at the same time appearing on the surface to be colorblind—than the one devised by the U.S. Supreme Court.
In Defense of the All-White Jury—Armstrong
effectively shields this type of biased decision making from judicial scrutiny for racial bias. Prosecutors are well aware that the exercise of their discretion is unchecked, provided no explicitly racist remarks are made, as it is next to impossible for defendants to prove racial bias. It is difficult to imagine a system better designed to ensure that racial biases and stereotypes are given free reign—while at the same time appearing on the surface to be colorblind—than the one devised by the U.S. Supreme Court.
Purkett v. Elm
The rules governing jury selection provide yet another illustration of the Court’s complete abdication of its responsibility to guarantee racial minorities equal treatment under the law. In 1985, in
Batson v. Kentucky
, the Court held that the Fourteenth Amendment prohibits prosecutors from discriminating on the basis of race when selecting juries, a ruling hailed as an important safeguard against all-white juries locking up African Americans based on racial biases and stereotypes. Prior to
Batson
, prosecutors had been allowed to strike blacks from juries, provided they did not
always
strike black jurors. The Supreme Court had ruled in 1965, in
Swain v. Alabama
, that an equal-protection claim would arise only if a defendant could prove that a prosecutor struck African American jurors in every case, regardless of the crime involved or regardless of the races of the defendant or the victim.
62
Two decades later, in
Batson
, the Supreme Court reversed course, a nod to the newly minted public consensus that explicit race discrimination is an affront to American values. Almost immediately after
Batson
was decided, however, it became readily apparent that prosecutors had no difficulty circumventing the formal requirement of colorblindness in jury selection by means of a form of subterfuge the Court would come to accept, if not endorse.
Batson v. Kentucky
, the Court held that the Fourteenth Amendment prohibits prosecutors from discriminating on the basis of race when selecting juries, a ruling hailed as an important safeguard against all-white juries locking up African Americans based on racial biases and stereotypes. Prior to
Batson
, prosecutors had been allowed to strike blacks from juries, provided they did not
always
strike black jurors. The Supreme Court had ruled in 1965, in
Swain v. Alabama
, that an equal-protection claim would arise only if a defendant could prove that a prosecutor struck African American jurors in every case, regardless of the crime involved or regardless of the races of the defendant or the victim.
62
Two decades later, in
Batson
, the Supreme Court reversed course, a nod to the newly minted public consensus that explicit race discrimination is an affront to American values. Almost immediately after
Batson
was decided, however, it became readily apparent that prosecutors had no difficulty circumventing the formal requirement of colorblindness in jury selection by means of a form of subterfuge the Court would come to accept, if not endorse.
The history of race discrimination in jury selection dates back to slavery. Until 1860, no black person had ever sat on a jury in the United States. During the Reconstruction era, African Americans began to serve on juries in the South for the first time. The all-white jury promptly returned, however, when Democratic conservatives sought to “redeem” the South by stripping blacks of their right to vote and their right to serve on juries. In 1880, the Supreme Court intervened, striking down a West Virginia statute that expressly reserved jury service to white men. Citing the recently enacted Fourteenth Amendment, the Court declared that the exclusion of blacks from jury service was “practically a brand upon them, affixed by law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to . . . equal justice.”
63
The Court asked, “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal protection?”
64
63
The Court asked, “How can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal protection?”
64
For all its bluster, the Court offered no meaningful protection against jury discrimination in the years that followed. As legal scholar Benno Schmidt has observed, from the end of Reconstruction through the New Deal, “the systematic exclusion of black men from Southern juries was about as plain as any legal discrimination could be short of proclamation in state statutes or confession by state officials.”
65
The Supreme Court repeatedly upheld convictions of black defendants by all-white juries in situations where exclusion of black jurors was obvious.
66
The only case in which the Court overturned a conviction on the grounds of discrimination in jury selection was
Neal v. Delaware
, a case decided in 1935. State law in Delaware once had explicitly restricted jury service to white men, and “no colored citizen had ever been summoned as a juror.”
67
The Delaware Supreme Court had rejected Neal’s equal protection claim on the ground that “the great body of black men residing in this State are utterly unqualified [for jury service] by want of intelligence, experience, or moral integrity.”
68
The Supreme Court reversed. Clearly, what offended the U.S. Supreme Court was not the exclusion of blacks from jury service per se, but rather doing so openly and explicitly. That orientation continues to hold today.
65
The Supreme Court repeatedly upheld convictions of black defendants by all-white juries in situations where exclusion of black jurors was obvious.
66
The only case in which the Court overturned a conviction on the grounds of discrimination in jury selection was
Neal v. Delaware
, a case decided in 1935. State law in Delaware once had explicitly restricted jury service to white men, and “no colored citizen had ever been summoned as a juror.”
67
The Delaware Supreme Court had rejected Neal’s equal protection claim on the ground that “the great body of black men residing in this State are utterly unqualified [for jury service] by want of intelligence, experience, or moral integrity.”
68
The Supreme Court reversed. Clearly, what offended the U.S. Supreme Court was not the exclusion of blacks from jury service per se, but rather doing so openly and explicitly. That orientation continues to hold today.
Notwithstanding
Batson
’s formal prohibition on race discrimination in jury selection, the Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection.
Miller El v. Cockrell
was such a case.
69
That case involved a jury-selection manual that sanctioned race-based selection. The Court noted that it was unclear whether the official policy of race-based exclusion was still in effect, but the prosecution did in fact exclude ten of eleven black jurors, in part by employing an unusual practice of “jury shuffling” that reduced the number of black jurors.
70
The prosecution also engaged in disparate questioning of jurors based on race—practices that seemed linked to the jury-selection manual. This was a highly unusual case. In typical cases, there are no official policies authorizing race discrimination in jury selection still lurking around, arguably in effect. Normally, the discrimination is obvious yet unstated, and the systematic exclusion of black jurors continues largely unabated through use of the peremptory strike.
Batson
’s formal prohibition on race discrimination in jury selection, the Supreme Court and lower federal courts have tolerated all but the most egregious examples of racial bias in jury selection.
Miller El v. Cockrell
was such a case.
69
That case involved a jury-selection manual that sanctioned race-based selection. The Court noted that it was unclear whether the official policy of race-based exclusion was still in effect, but the prosecution did in fact exclude ten of eleven black jurors, in part by employing an unusual practice of “jury shuffling” that reduced the number of black jurors.
70
The prosecution also engaged in disparate questioning of jurors based on race—practices that seemed linked to the jury-selection manual. This was a highly unusual case. In typical cases, there are no official policies authorizing race discrimination in jury selection still lurking around, arguably in effect. Normally, the discrimination is obvious yet unstated, and the systematic exclusion of black jurors continues largely unabated through use of the peremptory strike.
Peremptory strikes have long been controversial. Both prosecutors and defense attorneys are permitted to strike “peremptorily” jurors they don’t like—that is, people they believe will not respond favorably to the evidence or witnesses they intend to present at trial. In theory, peremptory strikes may increase the fairness of the proceeding by eliminating jurors who may be biased but whose biases cannot be demonstrated convincingly to a judge. In practice, however, peremptory challenges are notoriously discriminatory. Lawyers typically have little information about potential jurors, so their decisions to strike individual jurors tend to be based on nothing more than stereotypes, prejudices, and hunches. Achieving an all-white jury, or nearly all-white jury, is easy in most jurisdictions, because relatively few racial minorities are included in the jury pool. Potential jurors are typically called for service based on the list of registered voters or Department of Motor Vehicle lists—sources that contain disproportionately fewer people of color, because people of color are significantly less likely to own cars or register to vote. Making matters worse, thirty-one states and the federal government subscribe to the practice of lifetime felon exclusion from juries.
As a result, about 30 percent of black men are automatically banned from jury service for life.
71
Accordingly, no more than a handful of strikes are necessary in many cases to eliminate all or nearly all black jurors. The practice of systematically excluding black jurors has not been halted by
Batson
; the only thing that has changed is that prosecutors must come up with a race-neutral excuse for the strikes—an exceedingly easy task.
As a result, about 30 percent of black men are automatically banned from jury service for life.
71
Accordingly, no more than a handful of strikes are necessary in many cases to eliminate all or nearly all black jurors. The practice of systematically excluding black jurors has not been halted by
Batson
; the only thing that has changed is that prosecutors must come up with a race-neutral excuse for the strikes—an exceedingly easy task.
In fact, one comprehensive study reviewed all published decisions involving
Batson
challenges from 1986 to 1992 and concluded that prosecutors almost never fail to successfully craft acceptable race-neutral explanations to justify striking black jurors.
72
Courts accept explanations that jurors are too young, too old, too conservative, too liberal, too comfortable, or too uncomfortable. Clothing is also favorite reason; jurors have been stricken for wearing hats or sunglasses. Even explanations that might correlate with race, such as lack of education, unemployment, poverty, being single, living in the same neighborhood as the defendant, or prior involvement with the criminal justice system—have all been accepted as perfectly good, non-pretextual excuses for striking African Americans from juries. As professor Sheri Lynn Johnson once remarked, “If prosecutors exist who . . . cannot create a ‘racially neutral’ reason for discriminating on the basis of race, bar exams are too easy.”
73
Batson
challenges from 1986 to 1992 and concluded that prosecutors almost never fail to successfully craft acceptable race-neutral explanations to justify striking black jurors.
72
Courts accept explanations that jurors are too young, too old, too conservative, too liberal, too comfortable, or too uncomfortable. Clothing is also favorite reason; jurors have been stricken for wearing hats or sunglasses. Even explanations that might correlate with race, such as lack of education, unemployment, poverty, being single, living in the same neighborhood as the defendant, or prior involvement with the criminal justice system—have all been accepted as perfectly good, non-pretextual excuses for striking African Americans from juries. As professor Sheri Lynn Johnson once remarked, “If prosecutors exist who . . . cannot create a ‘racially neutral’ reason for discriminating on the basis of race, bar exams are too easy.”
73
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