Complaint Review: Criminal Justice System - Nationwide - CA, AR, GA, IL MI, NC, OK,

There is a major source of racial discrimination in our nation's criminal justice system, the selective prosecution of minorities, blacks in particular. The time has come for America to admit to the "dirty little secret" that has contaminated our criminal justice system. Our system of justice is a racially biased, two-tiered system; one for blacks and one for whites. Blacks are disproportionately targeted, stopped, arrested, prosecuted, sentenced to long mandatory prison terms and executed. In the nearly 30 years since the Kerner Commission warned us that America was moving toward "two societies, one black, one white - separate and unequal," our country's criminal justice system has certainly made it a reality. The focus here will be on only two areas of our criminal justice system that are obviously racially biased: mandatory federal drug sentences and the death penalty.

A study by the California Judicial Council Advisory Committee on Racial and Ethnic Bias in the Courts found that the justice system gives little attention or resources to investigating crimes against minorities and that minority defendants receive harsh treatment compared to white defendants in similar circumstances. The study also found that black-on-black crime or Latino-on-Latino crime is not taken as seriously as crimes against whites. Minority and female attorneys believe they are viewed and/or treated less credibly than white counterparts. Judges seem to believe that violence is more "acceptable" to black women because they are viewed as coming from violent communities. Minorities were judged by white, middle-class values in family law matters, and were the victims of racial and cultural stereotypes, affecting the courts' decisions.

Sentencing matters were complicated by beliefs that there is no social stigma associated with going to jail among black communities.

According to a 1994 report from the American Bar Association's Criminal Justice section, minorities who are arrested are imprisoned more than non-minority arrestees, and make up more than half of the state prison population.

The most recent statistics show that blacks are arrested and incarcerated for drug use at a much higher rate than can be accounted for by their rate of drug use. Blacks, who comprise only 12% of the population and 13% of drug users, constitute some 35% of those arrested for drug possession, 55% of those convicted of possession, and 74% of those sentenced to prison for possession.

Blacks are strongly overrepresented in crime. They made up 65% of persons arrested for robbery, 56.4% of those apprehended for murder and non-negligent manslaughter, 46.6% of those arrested for forcible rape, and 32.3% of those involved in burglary. Blacks were much less frequently involved in other patterns of criminality, including liquor law violations, drunkenness, fraud, embezzlement, and sex offenses other than forcible rape. One factor that may account for these high crime statistics for blacks may be differential law enforcement by police. Sometimes police arrest blacks for offenses that would be handled informally if the same offenses were committed by whites. For example, police often harrass black streetwalkers but allow white prostitutes to conduct their criminal activities virtually ignored.

On any given day, about one in three blacks between the ages of 20 and 29 is in prison, on probation, or on parole. Between 1989 and 1994, there was a 78% increase in the number of black women under correctional supervision, the highest for all demographic groups within those years.

Some believe that just because a large percentage of black men are under criminal justice control, that doesn't automatically indict the system as racist. Blacks commit a disproportionate share of the violent crime in society. Blacks constitute 45% of all arrests for violent crime (differential law enforcement?), while representing only 12% of the total population. Some studies suggest that most black punishment disproportions, for violent crime in particular, result from patterns of black offending and not from racial bias or discrimination within the system.

However, other studies show arrest, prosecution, and incarceration differences based on skin color alone, particularly in the treatment of whites and blacks in the enforcement of our nation's drug laws.

A study by the Washington, D.C.-based Sentencing Project, which tracks the demographics of who in our society goes to prison and for what kinds of crimes, found that black men are going to jail in record numbers due to a surge in arrests for non-violent drug offenses.

The Sentencing Project also found that in 1993, 88% of those sentenced federally for crack cocaine distribution were black, while only 4.1% of the defendants were white. This, while there are studies showing that a majority of the nation's reported crack cocaine users are white.

Because of the irrational federal cocaine sentencing guidelines, the Sentencing Commission recommended amending its guidelines to reflect a one-to-one ratio at the current levels set for powder cocaine, but, for the first time in the Commission's history, the Congress and the President rejected the Sentencing Commission's recommendation and reinstated the illogical sentencing structure.

The study concluded that blacks are arrested for drug crimes way out of proportion to black drug use. Blacks accounted for about 13% of drug users, yet they also accounted for 35% of all arrests for drug possession, 55% of all convictions on those charges, and 74% of all drug possessors sentenced to prison. From 1986 to 1991, the number of black drug offenders in prison jumped nearly twice as fast as rates for any other group, with the number of black men imprisoned for drug offenses increasing 429%.

Since1979, our nation's "War on Drugs" has devastated black America like no other social policy, with incarceration rates for working class black drug offenders increasing six-fold. Drug enforcement most heavily effects black communities since that is where police often concentrate their efforts. Blacks and Hispanics are charged with and receive sentences at or above the mandatory minimum more often that whites arrested on the same charges. There is also unwarranted uniformity in sentencing, resulting in low level participants in drug trade receiving more jail time than "drug kingpins." Only 13% of the U.S. population is black, yet more than 90% of all defendants prosecuted in federal court are black. Blacks and Hispanics combined now represent nearly 90% of all offenders sentenced to state prison for drug offenses. A 1992 study of federal court cases found that, where a mandatory minimum could apply, black offenders were 21% more likely and Hispanic offnders 28% more likely than whites to receive at least the mandatory minimum prison sentence. Has the "war on drugs" driven our nation back to the days of Dred Scott ("separate but equal")?

The impact of severe mandatory minimum sentences for first time non-violent drug offenders and the contrast between crack and powder cocaine sentencing has aggravated the racial imbalance in drug enforcement even further. For example, federal sentencing guidelines impose a five year minimum sentence if one is convicted of selling five grams of crack, yet the sale of an equal amount of powder cocaine yields only a one year sentence. Crack defendants tend to be black, while powder cocaine defendants tend to be white. Simple possession of more than five grams of crack is a felony with a mandatory minimum sentence of five years for a first offender, while possession of the same amount of powder cocaine is a misdemeanor requiring no jail time.

In spite of this obvious racial bias, the Senate has rejected a proposal to eliminate the sentencing disparity.

How do prosecutors decide which of these drug cases to pursue in federal court? Drug trafficking indictments against five black men from Inglewood, California were thrown out after federal prosecutors refused to explain why the defendants were charged in federal court instead of state court. Federal sentences would be much stiffer for the offense than would state sentences.

The decision to charge the men in federal court instead of state court is very significant. Federal law sets a minimum 10 year sentence for people convicted of selling more than 50 grams of crack.

Under state law in California, the sentence for the same crime ranges from three to five years.

In claiming racial bias in the case, the defendants noted that in 1991, all 24 crack cocaine cases handled by the federal public defender's office in Los Angeles involved black defendants. It was also shown that between 1991 and 1993, the federal public defender represented 53 defendants in crack cocaine cases, none of the defendants were white. In 1992, two hundred twenty-two white defendants charged with crack cocaine offenses were prosecuted in state court, effectively avoiding the harsh sentences required under the federal sentencing guidelines. In Los Angeles, where the case against the fiive blacks arose, not a single white offender had been convicted of a crack cocaine offense in the federal courts since 1986, when Congress enacted stiff new penalties.

The Clinton administration argues that there is no proof of discrimination. Justice Department lawyers say anyone claiming selective prosecution based on race must prove that people of a different race have not been prosecuted. It seems that the information presented in the previous paragraph would prove that the treatment of these five defendants was biased.

Federal authorities say they can't help it if inner-city street gangs dominate the crack cocaine business. They say that white collar crime is dominated by Caucasians and criminal alien cases are dominated by Hispanics. U.S. Attorney Nora Manella says, "It's the job of law enforcement to prosecute those who engage in violations of federal law and let the chips fall where they may. There's simply no place for affirmative action in federal law enforcement."

In May of 1996, the Supreme Court made it harder for criminal defendants to make federal prosecutors respond to accusations that they are prosecuting someone because of their race. Ruling 8-1 in the California crack case involving the previously mentioned five black men, the court said that defendants who want to pursue selective-prosecution claims must show that people of other races were not prosecuted for the same crime. The five California men did not make such a showing. A federal judge ordered prosecutors to provide further racial data and explain how they chose which crack cases to pursue in federal court. Lower courts had dismissed charges against the five, and the 9th U.S. Circuit Court of Appeals affirmed the decision to dismiss, saying the men had presented enough information to warrant further inquiry into the government's actions. This decision by the Supreme Court allows the charges to be reinstated.

The costs to society of these racial inequities are impossible to calculate. Besides the out-of-pocket costs of imprisoning the offenders, the real cost lies in the ruination of black communities. Black men with criminal records have very little hope of being successful. As their job prospects dim, the likelihood that they will provide for their families also dims. Children of incarcerated men, brought up without a father, most likely in poverty, will grow up in an environment that will cultivate future offenders. The larger the rate of black incarceration, the greater the loss of its stigmatizing effect, making the prison experience a communal experience, nothing to be ashamed of.

The greatest price to be paid for an unjust system of justice in the expanding racial divide it causes, as witnessed by the celebratory reaction of many blacks to the O.J. Simpson verdict. The reactions to the verdict highlighted the disconnection between black and white perception of, and experience with the justice system. This can only be fueled by blacks seeing their neighbors hauled into court for drug offenses while white drug use is tolerated.

It's clear that drug laws are being enforced with extra zeal against blacks. Long prison terms are warranted for violent offenders, and if that falls disproportionately on the black community, so be it. However, an obvious weakness in the system is the unequal prosecution and sentencing of blacks to prison for non-violent drug offenses.

In 1972, the U.S. Supreme Court handed down a 5-4 ruling that invalidated virtually every death penalty statute in the country. The Court held, in the case of Fuhrman v. Georgia, that the death penalty constituted "cruel and inhuman punishment" and was a violation of the Eighth Amendment, and that the unlimited discretion allowed judges and juries in death penalty cases caused the penalty to be applied in an arbitrary manner. Several of the justices involved in this decision cited evidence of racial bias in their written opinions.

Four years later, the Court resurrected the death penalty by upholding a statute that required judges and juries to take specific factors into consideration when deciding whether to impose a death sentence (Gregg v. Georgia). The Court believed that this so-called "guided discretion" requirement would adequately guard against arbitrartiness and discrimination.

However, abundant evidence domonstrates that racial bias continues to influence death sentencing. The race of the victim, in particular, remains a crucial factor in determining who will and will not receive the death penalty.

Studies confirm the prevalence of racial discrimination in death sentencing. For instance, a 1990 report released by the federal government's General Accounting Office found a "pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Fuhrman decision."

Professor David Baldus examined sentencing patterns in Georgia in the 1970's. After reviewing over 2,500 homicide cases in the state, controlling for 230 non-racial factors, he concluded that a person accused of killing a white was 4.3 times more likely to be sentenced to death than a person accused of killing a black. The Stanford Law Review published a study that found similar patterns of racial disparity, based on the race of the victim, in Arkansas, Florida, Georgia, Illinois, Mississippi, North Carolina, Oklahoma, and Virginia.

In Arkansas findings showed that defendants in a case involving a white victim are 3 1/2 times more likely to be sentenced to death; in Illinois, four times; in North Carolina, 4.4 times, and in Mississippi five times more likely to be sentenced to death than defendants convicted of murdering blacks. In a study by the Florida Law Review, examining all himicides committed and death sentences rendered in Florida between 1976 and 1987, it was found that, in that state, the odds of receiving a death sentence are 3.4 times higher for defendants convicted of killing whites than for those convicted of killing blacks.

Recent statistics show that half of those confined to death row are minorities. As of January 31, 1995, the U.S. had 2,976 prisoners under sentence of death. Fifty-one percent, or 1,532, are non-white. Black inmates make up 40.29% of death row's population, but in several states-mostly in the South-they outnumber white inmates. These percentages are high when you consider that just about 13% of the U.S. total population are blacks.

Is the death penalty racist? I think the statistics speak for themselves. Are mandatory drug sentences targeted at the minority/black population of the United States? Those statistics also speak for themselves. People who feel they are picked on or singled out for differential treatment by authorities because of their race become alienated and angry with the system that is supposed to be protecting them. If drugs are such a problem in our society, then all citizens should be inconvenienced; a question mark should not be placed over the head of every black/minority person. Is it any wonder that many blacks/minorities feel a deep sense of mistrust for our criminal justice system?