America Becoming Racial Trends and Their Consequences: Volume II (2001) / Chapter Skim
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1. Racial Trends in the Administration of Criminal Justice
1. Racial Trends in the Administration of Criminal Justice
Pages 1-20
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From page 1... ...
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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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.
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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.
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court of appeals upholding the legality of a search based on racial profiling conducted by Drug Enforcement Agency (DEA) agents.
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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.
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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 .
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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.
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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.
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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.
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. 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~.
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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.
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From page 12... ...
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.
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Proposed legislation, dubbed the Racial Justice Act, would have established as primufacie 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.
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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.
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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.
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From page 16... ...
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.
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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)
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1990 Challenging the challenge: Thirteenth Amendment as a prohibition against the racial use of peremptory challenges. Cornell Law Review 76~1~:1-128.
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1996 Batson in practice: What we have learned about Batson and peremptory challenges. Notre Dame Law Review 71~3~:447-503.
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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.
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