UNITED STATES OF AMERICA, Petitioner, -- vs -- CHRISTOPHER
LEE ARMSTRONG, et al., Respondents.
No. 95-157
1995 U.S. Briefs 157
October Term, 1995
January 16, 1996
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIEF OF NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC.,
AND AMERICAN CIVIL LIBERTIES UNION AS AMICUS CURIAE IN SUPPORT OF RESPONDENTS
STEVEN R. SHAPIRO, American Civil Liberties Union Foundation, 132 West 43
Street, New York, New York 10036, (212) 944-9800
ELAINE R. JONES, THEODORE M. SHAW, GEORGE H. KENDALL, * L. SONG RICHARDSON,
NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., 99 Hudson Street, 16th Floor,
New York, New York 10013, (212) 219-1900, Attorneys for Amicus Curiae
* Counsel of Record
View Table of Authorities
INTEREST OF AMICI n1
n1 Letters from the parties consenting to the filing of this brief have been
lodged with the Clerk of the Court.
The NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation
formed to assist African Americans to secure their rights by the prosecution of
lawsuits. Its purpose includes rendering legal aid without cost to African
Americans suffering injustice by reason of race who are unable, on account of
poverty, to employ legal counsel on their own. For many years, its attorneys
have Council should continue to study and report on racial disparities in
sentencing.
WASHINGTON STATE MINORITY AND JUSTICE TASK FORCE, SUMMARY OF
CONCLUSIONS AND RECOMMENDATIONS, DEC. 19, 1990
The Task Force was established in 1987 pursuant to legislation which sought to
improve the treatment of racial and ethnic minorities in Washington courts. The
Task Force held public forums around the state in 1988 and undertook research
studies.
The Washington Supreme Court created the Minority and Justice Commission in
October 1990 in acknowledgment of the importance of the continuing need to
determine whether racial, ethnic and cultural bias exists in the state court
system and, when it exists, to recommend appropriate action to overcome it. The
Commission's purpose was to continue the work of its predecessor, the Task
Force, by implementing the Task Force Recommendations.
The data for the Commission's study on race and ethnic disparities in the
prosecution of felony cases in King County came from three sources: (1) an
automated database used by the Office of the King County Prosecuting Attorney;
(2) case files for a sample of approximately 500 felony cases filed with the
King County Superior Court during 1994; and (3) personal interviews with 15
King County deputy prosecuting attorneys.
FINDINGS:
The filing of felony charges by the King County Prosecutor's Office varies by
the type of offense and by the race of the offender . . . White offenders were
the least likely to be charged (60%), compared to 65% of all minority
offenders.
First, the effect of race, particularly African American, on bail was
significant in most analyses...Second, there were significant differences in
the amount of confinement recommended for Black offenders and White offenders,
and deputy prosecutors were less likely to recommend an alternative sentence
conversion for Black offenders.
Controlling for legal factors, African Americans tend to receive higher
sentences than Whites and are less likely to be provided an alternative
sentence conversion.
CALIFORNIA JUDICIAL COUNCIL ADVISORY COMMITTEE ON RACIAL AND ETHNIC
BIAS IN THE COURTS, FAIRNESS IN THE CALIFORNIA STATE COURTS.
The Advisory Committee on Racial and Ethnic Bias in the State Courts was
appointed in 1991 by Chief Justice Malcolm Lucas.
The Committee conducted 13 days of public hearings to ascertain public
perceptions of fairness in the judicial system. After the hearings, a survey
was completed in order to verify the extent to which the concerns expressed in
the public hearings were shared by the general public, attorneys, and court
personnel. The survey of the general public consisted of a random sample of
1,338 people. Approximately 2,070 written questionnaires were mailed to all
judicial officers and top administrators of the courts. Another 2,000
questionnaires were mailed to minority and non-minority attorneys represented
parties and have participated as amicus curiae in this Court and in the lower
state and federal courts.
The Fund has a long-standing concern with the influence of racial
discrimination on the criminal justice system. It has raised jury
discrimination claims in appeals from criminal convictions, n2 pioneered in the
affirmative use of civil actions to end jury discrimination, n3 represented the
defendant in Swain v. Alabama, 380 U.S. 202 (1965), and filed an amicus brief
in Batson v. Kentucky, 476 U.S. 79 (1986). The Fund has also participated in a
number of cases involving the influence of race upon the administration of
capital punishment. n4
n2 E.g. Alexander v. Louisiana, 405 U.S. 625 (1972).
n3 Carter v. Jury Commission, 396 U.S. 320 (1970); Turner v. Fouche, 396 U.S.
346 (1970).
n4 Furman v. Georgia, 408 U.S. 238 (1972); Coker v. Georgia, 433 U.S. 584
(1977); McCleskey v. Kemp, 481 U.S. 279 (1987).
The American Civil Liberties Union (ACLU) is a nationwide, non-profit,
nonpartisan organization with nearly 300,000 members dedicated to the
principles of liberty and equality embodied in the Constitution. The ACLU of
Northern California, the ACLU of Southern California, and the ACLU of San Diego
and Imperial Counties, are its affiliates in the state of California where this
action arose.
Since its founding in 1920, the ACLU has been particularly concerned with
combatting the problems of racial discrimination in the criminal justice
system. For example, the ACLU played an important role in overturning the
infamous Scottsboro convictions in Powell v. Alabama, 287 U.S. 45 (1932). More
importantly, the ACLU has been deeply involved in the effort to eliminate the
discriminatory use of peremptory challenges. See e.g. Batson v. Kentucky,
supra.
This case once again brings the issue of racial discrimination in the criminal
justice system to the forefront. As this Court has previously recognized, even
the appearance of discrimination has a corrosive effect on public confidence in
the administration of justice. The actual existence of discrimination is
obviously incompatible with our most basic notions of due process and equal
protection. The proper resolution of this case is, therefore, of critical
importance to the Fund, and to the ACLU and its members.
SUMMARY OF ARGUMENT
The case calls upon the Court to fashion a discovery rule for selective
prosecution claims.
Despite the Court's unceasing efforts to purge the administration of justice of
racial discrimination, comprehensive contemporaneous studies by the state and
federal courts show that racial bias continues to influence decision-making in
the criminal justice process. Elimination of bias from judicial proceedings
requires that courts take affirmative steps to identify instances in which bias
may influence discretionary decision-making and to prevent it from doing so.
Information relevant to bias and decision-making must be collected, maintained,
and disclosed when necessary to determine whether a decision is
bias-influenced. Today, evidence relevant to determining whether decisions of
prosecutors are influenced by race is often maintained only by the prosecutor.
These studies as well as other sources show that discretionary decisions by
prosecutors in drug prosecutions may sometimes be influenced by racial bias.
Courts must be prepared to explore such matters thoroughly whenever a colorable
basis for such a claim is presented.
The government's view that discovery is not permissible until the defendant
makes a substantial threshold showing of selective prosecution ignores these
realities. Such a rule overprotects the government's interest in being free of
such discovery, is based upon a false view that evidence tending to show
selective prosecution is generally and reasonably available elsewhere, and
would, if adopted, impose a crippling burden of production upon citizens facing
criminal charges who are often indigent.
The district court utilized the correct approach in this case. Discovery of
non-privileged data and charging criteria was ordered only after respondents
presented credible evidence suggesting that only African Americans are
prosecuted in federal court for sales of cocaine base whereas large numbers of
non-blacks are prosecuted in state court where sentences are significantly
lighter, and only after the district court gave careful, deliberate
consideration to the government's rebuttal evidence. Such issues are best left
to the district courts, and the judge in this case clearly did not abuse her
discretion.
ARGUMENT
I. CONTEMPORARY EVIDENCE REVEALS THAT RACIAL BIAS CONTINUES TO
INFLUENCE THE EXERCISE OF DISCRETIONARY ACTS IN THE ADMINISTRATION OF CRIMINAL
JUSTICE
A. Comprehensive studies initiated by state and federal courts show
that racial bias continues to influence decision-making in the criminal justice
system
During the past decade, numerous state and federal courts established task
forces and charged them with appraising the treatment of racial and ethnic
minorities in the courts, ascertaining public perceptions of the fairness of
the judicial system, and making recommendations on reforms and identifying the
response necessary to eliminate the perception and reality of race-based
partiality. The unpleasant and consistent conclusion each has reached is that
"inequality, disparate treatment, and injustice remain hallmarks" of
the criminal justice system. n5 We report important findings that are relevant
to the question presented.
n5 New York State Judicial Commission on Minorities, Executive Summary, p. 1
(April 1991) [hereinafter "New York"].
1. Race continues to influence discretionary decisionmaking within the
criminal justice system
After exhaustive research and analysis of copious data n6, the court appointed
task forces throughout the country confirmed the continued influence of racial
bias at all stages of the criminal justice process. Distressingly, racial bias,
both overt and unconscious, continues to cause an alarming number of law
enforcement actors -- police, prosecutors, and judges -- to treat minorities
differently and more harshly than similarly situated whites. Race continues to
exercise influence wherever discretion is exercised, whether it be at the
arrest, n7 charging, bail, n8 jury selection, n9 or sentencing stage. One
report summarized:
In short, the reality is that African-American[s] . . . are being treated
differently at several stages of the . . . justice system. When the object is
punishment -- detention, formal adjudication, or commitment -- minorities get
more; when what is being handed out is informal processing or diversion,
minorit[ies] get less. This differential treatment results, at least in part,
from racial and ethnic bias on the part of enough individual police officers, .
. . prosecutors, and judges to make the system operate as if it intended to
discriminate against non-whites. n10
n6 For a description of each study's methodology, see Appendix A.
n7 The Florida Supreme Court Racial and Ethnic Bias Study Commission's findings
are typical. The Commission found that "An overwhelming majority of those
interviewed (including, significantly, law enforcement officials) believed that
minorities are treated differently from and more harshly than non-minorities at
the arrest stage. Minority juveniles are more likely to be formally arrested
than similarly situated white juveniles." Florida Supreme Court Racial and
Ethnic Bias Study Commission, Where the Injured Fly for Justice, Dec. 11, 1990,
at 62 [hereinafter Florida I]. The New Jersey Supreme Court Task Force on
Minority Concerns concluded that there was significant evidence of
discrimination by police who channel minority criminal defendants to the court
system. New Jersey Supreme Court Task Force on Minority Concerns, Final Report,
June 1992, at 132 [hereinafter New Jersey]; see also, e.g., The Washington
State Minority and Justice Commission, Racial and Ethnic Disparities in the
Prosecution of Felony Cases in King County-Final Report, Nov. 1995, at 52
[hereinafter Washington] (deputy prosecuting attorneys report that
predominantly minority areas are targeted by the police for proactive drug
stings); Oregon Supreme Court Task Force, Report on Racial/Ethnic Issues in the
Judicial System, May 1994, at 3 [hereinafter Oregon].
n8 See, e.g., D.C. Circuit Task Force on Gender, Race and Ethnic Bias, Draft
Final Report, Jan. 1995, at 215 [hereinafter D.C. Circuit]; New York, at 38-40;
Florida Supreme Court Racial and Ethnic Bias Study Commission, Where the
Injured Fly for Justice, Dec. 11, 1991, at 23 [hereinafter Florida II]
("non-White offenders were less likely than Whites, other factors being
equal, to have bail set below schedule boundaries"); New Jersey, at 133;
Michigan Supreme Court Task Force on Racial/Ethnic Issues in the Courts, Final
Report, Dec. 1989, at 51 [hereinafter Michigan] ("a district judge at a
judicial forum indicated that it was sometimes expedient as a matter of
political reality to place a higher bond on a minority defendant");
Georgia Supreme Court Commission on Racial and Ethnic Bias in the Court System,
Let Justice Be Done: Equally, Fairly, and Impartially, Aug. 1995, at 132-136
[hereinafter Georgia]; Oregon, at 3.
n9 See Georgia, at 33; Michigan, at 49.
n10 Florida I, at 59-60.
The cumulative effect of this differential treatment of non-whites at each
level of discretionary decisionmaking has repeatedly been determined to be
substantial. See e.g., Iowa, at 187 ("the combined effect [of racial bias]
during processing in the court system is not slight"); Florida I, at 73;
Washington, at 4-5.
2. Racism, both overt and unconscious, affects discretionary charging
and sentencing decisions
In particular, state and federal task forces consistently identified that
differences in prosecutorial charging decisions could only be accounted for by
race. n11 For example, Michigan's task force found that racial and ethnic
minorities in the Detroit metropolitan area are routinely charged with felonies
for certain conduct that, when engaged in by white offenders, results in
misdemeanor charges. Michigan, at 51. Similarly, the Massachusetts Commission
reported that available data disclosed a "disturbing pattern": young
black males were more likely to receive terms of incarceration than similarly
situated white counterparts. Massachusetts Supreme Judicial Court Commission to
Study Racial and Ethnic Bias in the Courts, Final Report, Sept. 1994, at 95
[hereinafter Massachusetts].
11 See, e.g., State of Iowa Equality in the Courts Task Force, Final Report,
Feb. 1993, at 174, 179-80, 187 [hereinafter Iowa]. Florida I, 66-67;
Washington, at 5, 51.
In New York, Blacks and Hispanics were found to be treated more harshly than
whites n12, especially in majority-white counties. For example, in suburban,
majority-white Westchester County, minority felony defendants with prior
criminal records had a 52% chance of being incarcerated while similarly
situated white felony defendants had only a 39% chance of being incarcerated.
New York, at 41, citing New York State Division of Criminal Justice Services
study. See also Washington, at 54 ("Longer periods of confinement were
recommended for Black offenders than for White offenders, even after we took
into account legally relevant factors").
n12 For example, in misdemeanor cases, whites were assessed fines while Blacks
and Hispanics with similar backgrounds were sentenced to jail for similar
misdemeanors. New York, at 41.
This disparate treatment has been acknowledged by prosecutors and judges as
well. For example, a federal judge testified to the influence of unconscious
racism on discretionary charging and sentencing decisions in the following
terms:
I'm not suggesting deliberate discrimination by the U.S. Attorney, but I have
seen throughout my years as a judge a different view brought to cases where a
prosecutor may feel there is not something worth saving . . . . I think there
is perhaps a natural tendency to think with the white male, "Here's a
young person with no prior problems with the law. We don't want to destroy his
future." There may not be the same feeling for the black male, just a
sense that he is not going to go far anyway. I don't think this is deliberate
discrimination, but it results in more of a tendency to find a way out for the
white male than the black male. n13
To similar effect were the observations of a state judge:
Again, it's this institutional-it's the subtle, it's the unconscious kind of
racism. There was an incident that happened in Palm Springs following a
sentencing seminar sponsored [by] either CJA or CJER. And judges were in the
pool relaxing afterwards, and there was a conversation going on about
sentencing and talking about what we had discussed earlier. And among two of
the judges, they said, well, they had decided that for Blacks, the sentencing
option of jail and longer jail sentences was the more appropriate sentence than
for Whites or for Asians, because everybody knew there wasn't any social stigma
attached to Blacks going to jail, because, first of all, they live in
communities where everybody was Black, and so they didn't have any reason to be
embarrassed, so if you just gave a little jail time, it would be all right. n14
Moreover, a District of Columbia federal prosecutor opined that disparate
treatment occurred less innocently:
I think the judges are less harsh with a white defendant as opposed to a black
defendant. A judge will be lenient to a white defendant and when a black man
commits the same offense, they will send him away. It is appalling. They may
see a white defendant and they connect. n15
That such bias stems from a government actor's unstated and inarticulable
intuition that a defendant deserves different treatment because of his race
hardly makes it less of an offense to bedrock equal protection principles.
n13 D.C. Circuit, at 165.
n14 California Judicial Council Advisory Committee on Racial and Ethnic Bias in
the Courts, 1991-1992 Public Hearings, at 87 (1993).
n15 D.C. Circuit, at 162. Another prosecutor told the D.C. Circuit task force,
"The judges are predominately a white bunch and they tune into factors
that are familiar to them personally." D.C. Circuit, at 214.
The task forces' sincere efforts at self-scrutiny have consistently yielded this
alarming conclusion: that racial bias in the administration of justice is
pervasive and persistent and threatens both the appearance and reality of
evenhanded justice.
B. Eliminating racial bias, both overt and unconscious, from judicial
proceedings requires that courts take specific steps to identify instances in
which bias may influence decision-making and to prevent it from doing so
A second consistent theme of these judicially endorsed reports is also clear:
unless courts act more vigilantly, racial bias will never be eradicated from
the administration of justice and public confidence will wane further. One task
force stated, "Public confidence in our system of justice must become and
remain a priority for each member of that system." Michigan, at 23. See
also Massachusetts, at 4.
Only by acknowledging that bias persists and by taking the necessary steps to
deal with it will courts dispel the notion held by some members of the public
that the courts are tolerant of race discrimination. Undertaking this challenge
is essential because:
Like any relationship, the relationship between the courts and the communities
around them needs attention and care to ensure that each party understands and
trusts the other. By giving more attention to these relationships, the courts
would not only better serve the community, they would also make their own jobs
easier by enhancing the community's confidence in the administration of
justice. n16
n16 D.C. Circuit, at 5-6.
1. Despite the courts' current efforts to eradicate racial bias, overt
and unconscious racism on the part of law enforcement actors persists
The task forces found that for minorities, overt racism on the part of law
enforcement actors is a fact of life. An instance of such bias helped to bring
about the creation of the Massachusetts Commission: In August 1988, during a
criminal session of the Suffolk Superior Court, Assistant Attorney General
Thomas H. Brewer, an African American, attempted to gain access to a part of
the courtroom that he was entitled to enter. However, because of his race, two
court officers mistook the Assistant Attorney General for a defendant and
physically attempted to bar him from the courtroom. n17
n17 Doris Wong, Shannon Office to Probe Alleged Court Assault, The Boston
Globe, Dec. 13, 1988, at 29.
Such incidents by law enforcement actors sadly are not uncommon and were
reported to other commissions. n18 Additionally, judges continue to exhibit
overt racism in the courtroom. The Oregon task force was disturbed by an
incident in which a Mexican-American defendant appeared before a judge on the
issue of whether the defendant's diversion program should be revoked for
nonpayment of diversion fees. In open court, the judge admonished the defendant
as follows:
I'm not going to let him just hold out money. And I know just darn good and
well where that money from [his job] went. I'll bet a good part of it went down
South, and that's his business, except that he's got this obligation here.
Oregon, at 1.
n18 For example, an African-American attorney related his experience to the New
York task force:
In criminal court in New York County I was grabbed from behind in a chokehold
around the throat by a court officer who assumed that I was a defendant
approaching too close to [a judge] who had motioned me to approach the bench.
New York, at 88.
That such brazen, on the record comments are exceptional, however, should not
blind courts to the extent that unconscious racism based upon racial
stereotypes and cultural misunderstandings also permeates the administration of
justice. The Georgia task force noted that "there are incidences of bias
which appear to result from unintentional conduct or conduct resulting from a
lack of awareness." Georgia, at 9. See also, Oregon, at 2.
Indeed, the elusiveness of this subtle or even unconscious racism makes it in
one respect more problematic than overt racism: without heightened
attentiveness, it is likely to go detected in any individual case. As one
report put it, "Like the presence of poison in food or certain pollutants
in the air, bias in decision-making may not always be readily detectible by the
unwary." Florida I, at 5.
Ongoing, unchecked racial bias mocks the idea that justice is dispensed equally
to all under the law. Not surprisingly, incidents recounted in the reports
explain why too many Americans distrust the fairness of our courts. As this
Court has repeatedly acknowledged, racial bias fundamentally undermines the
integrity of the criminal justice system in violation of the bedrock guarantee
of equal treatment embodied in the Fifth and Fourteenth Amendments. See e.g.
Strauder v. West Virginia, 100 U.S. 303 (1880); Batson v. Kentucky, 476 U.S. 79
(1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
While existing mechanisms may be relied upon in cases where race discrimination
is overt, the compelling evidence cited above require courts to develop
appropriate solutions to reach those circumstances in which racism takes more
subtle form. The resolution of such problems "will require an
extraordinary intellect, unswerving compassion and most importantly, a level of
candor that will engender respect for any decision the Court might reach."
New Jersey, at ii.
The task forces identified tools to deal with the more subtle bias that has
been found to infect discretionary decisionmaking: adoption of systems for
collection of relevant data necessary for monitoring discretionary decisions,
the promulgation of guidelines to channel the exercise of discretion to avoid
bias, and development of new remedies for addressing bias. As the Florida
commission found, there is a "need for fundamental reforms to eradicate
the stain of racism from the garments of justice." Florida II, at viii.
2. Adequate information must be collected, maintained and disclosed
when necessary in order to determine the existence or non-occurrence of
bias-influenced decisionmaking
During the course of their investigations, the task forces discovered that a
major roadblock to determining whether bias existed in the criminal justice
system was the difficulty of gathering the necessary data. They were hampered
by the lack of systematic institutional mechanisms for compiling bias data and
were often forced to conduct their own studies, which usually required
considerable financial resources. See, e.g., Iowa, at 188; Florida II, at 60.
Much of the information analyzed by the court task forces came from District
Attorneys' Offices. n19
n19 Law enforcement officers consulted cooperatively with the task forces in a
variety of ways, including releasing an array of information about their
internal practices. See Florida II, at 46; Massachusetts, at 93-4 (District
Attorneys' offices provided the most useful data on sentencing disparities
because their files were the most complete). The cooperation of the
prosecutors' offices was essential because relevant information was not always
available to the public. See D.C. Circuit, at 200.
Since prosecutors' offices already possess access to the information needed to
make a comprehensive study of bias, the task forces concluded that these
offices should assume the responsibility for gathering much of the information
crucial to monitoring bias. Data regarding exercise of prosecutorial discretion
would then be readily available. n20
n20 See, e.g., Iowa, at 190 (county attorney offices should keep records of the
charges on initial arrest, the charges ultimately filed, the arrests they chose
not to prosecute, the reasons they chose not to prosecute, and the race and
gender of the alleged perpetrators); Massachusetts, at 24, 95 (District
Attorney's office should be responsible for collecting data on case processing
between the police, the department of probation, and other law enforcement
agencies); Oregon, at 35 ("District attorneys should be required to
collect and report to the Criminal Justice Council data on the variable of race
in all charging decisions").
The task forces also recommended that bias data be made routinely available to
all concerned, including the public, see Iowa, at 190 (any patterns of racially
associated disparities should be publicly disseminated, and specifically
brought to the attention of the Districts where the disparities occurred); New
York, at 43 (sentencing statistics concerning the race of the victim, defendant
and complainant along with case outcome should be maintained and published by
the Unified Court System in cooperation with the New York State Department of
Criminal Justice Services), and that periodic studies to determine the existence
or influence of racial bias be undertaken. See Massachusetts, at 24; Georgia,
at 165; New Jersey, at 133.
3. Based upon the availability of such reliable information, the
exercise of discretion can be monitored so as to identify and eliminate discriminatory
actions in the criminal justice process
Reliable data must be disclosed when necessary to avoid the influence of bias
because "the need for discretion, while compelling, must be balanced
against the potential for abuse. The need to ensure that the charging decision
is free from racial and ethnic bias must be taken into account." Oregon,
at 35. See also Florida I, at 77. Only by having data available will it be
possible to monitor effectively the influence of bias in the discharge of the
official responsibilities of the police, the prosecution and the judiciary. See
Massachusetts, at 24.
Traditionally, prosecutorial discretion has been regarded not only as broad but
as virtually immune from external scrutiny based upon the assumption that adequate
internal mechanisms are in place to deal with overt discrimination. Time and
again, the task forces concluded that the traditional approach, leaving the
exercise of discretion to internal monitoring only, was inadequate to prevent
subtle forms of discrimination.
The task forces concluded that new monitoring mechanisms are sorely needed, n21
and that the monitoring of discretionary decisionmaking encourages awareness of
racial bias, thereby helping to eradicate it. n21
n21 These include promulgating regulations to channel discretion, conditioning
funding to prosecutor's offices on the requirement that their offices eliminate
the discriminatory effects of their decisions, requiring the submission of
reports detailing discretionary practices for review, and creating a state-wide
database which includes information about sentencing and charging decisions for
outside monitoring. See Oregon, at 35, 44; Georgia, at 31; Florida I, at 66-67,
76; Florida II, at 44; Massachusetts, at 97; New York, at 43; Iowa, at 188;
Michigan, at 55.
n22 See Florida II, at 43-44; Georgia, at 166-67.
The task forces also concluded that traditional remedies for race
discrimination are often ineffective. For example, many concluded that trial
courts too often fail to police the discriminatory exercise of peremptory
challenges by prosecutors. Thus, one task force recommends allowing appellate
courts to review Batson issues de novo. Georgia, at 33. Similarly, the Michigan
task force expressed alarm after it was unable to find even one reported
Michigan decision in which a Batson claim was found meritorious. Michigan, at
49. Thus, it recommended that trial judges be encouraged to implement the
Batson standard on their own initiative in any jury selection process in which
peremptory challenges appear to be racially motivated. Id. See also New York,
at 59 ("Judges should exercise heightened scrutiny to ensure that
peremptory challenges are not used improperly").
II. THE DISCRETIONARY DECISIONS OF FEDERAL PROSECUTORS WHETHER TO EXERT
FEDERAL CRIMINAL JURISDICTION OVER NARCOTICS OFFENSES MUST BE SUBJECT TO
EFFECTIVE MONITORING TO ENSURE THAT RACIAL BIAS DOES NOT INFLUENCE THEM
Prosecutorial discretion contributes to the widening gulf between juvenile and
adult African-Americans' and other offenders' incarceration rates. While
"the total number of white juveniles brought to court on drug charges in
1990 exceeded the total number of blacks by 6,300 . . . , far greater number of
white youths were sent home without being tried, were released to drug
counseling programs, or were placed on probation. Consequently, 2,200 more
blacks than whites ended up on correctional facilities." n23 Figures for
adult crack and cocaine prosecutions are similar. n24
n23 Ron Harris, Hand of Punishment Falls Heavily on Black Youth, L.A. Times,
August 24, 1993 at 7 [hereinafter Punishment]. Other data shows that drug abuse
is centered largely in the white community. African-Americans make up 12% of
the U.S. population, 13% of all monthly drug users, but represent 35% of those
arrested for drug possession, 55% of those convicted of drug possession, and
74% of those sentenced to prison for drug possession. The Sentencing Project,
Young Black Americans and the Criminal Justice System: Five Years Later, Oct.
1995. See also Michael Tonry, Malign Neglect: Race, Crime, and Punishment in
America, 1995, at 49. ("Blacks are arrested and confined in numbers
grossly out of line with their use or sale of drugs").
n24 In 1989, former Drug Czar William Bennett described the typical cocaine
user as a "white, male, high school graduate, employed full time and
living in a small metropolitan area or suburb." Sam Meddis, Whites, Not
Blacks, At The Core of Drug Crisis, USA Today, Dec. 20, 1989, at 11A. The
Justice Department offered the following profile of crack users in the United
States during 1991: 49.9% of crack users are White, 35.9% are Black, and 14.2%
are Hispanic. U.S. Department of Justice, Bureau of Justice Statistics, Drugs,
Crime, and the Justice System, Dec. 1992, at 28.
A recent survey of prosecutions for crack cocaine offenses conducted by the Los
Angeles Times revealed that not a single white offender had been convicted of a
crack cocaine offense in the federal courts serving the Los Angeles
metropolitan area since 1986, despite the fact that whites comprise a majority
of crack users. Dan Weikel, War on Crack Targets Minorities Over Whites, L.A.
Times, May 21, 1995, quoted in The Sentencing Project, at 10 (1995). Moreover,
according to a study by Richard Berk, between 1990 and 1992, over 200 white
crack dealers were prosecuted by the state authorities in Los Angeles, a period
during which the U.S. Attorney's office prosecuted not one white defendant for
crack. Richard Berk, Preliminary Data on Race and Crack Charging Practices in
Los Angeles, 6 Fed. Sentencing Rep. 36 (1993).
Just as the existence of a pattern of employing peremptory challenges with the
result of removing Black or other minority jurors from panels suggests the
possibility that this aspect of prosecutorial discretion may be influenced by
racial bias, and requires the carefully delineated judicial remedy created by
this Court in Batson, so too do the data summarized above support -- indeed
compel -- the conclusion that a similar judicial remedy must be available to
preserve the integrity of the federal criminal justice system. Unless the
potential for discriminatory decision-making is addressed, public support for
and confidence in federal criminal procedures will be eroded by the suspicion
that drug laws generally, and the "cocaine base" laws specifically,
are being administered in a racially discriminatory manner. That is surely the
view of a growing number of law enforcement officials n25 and judges n26 who
have been on the front lines throughout the "War on Drugs."
n25 Former Atlanta Police Chief Eldrin Bell remarked recently:
I wonder if because it is blacks . . . who are going to jail in massive
numbers, whether we . . . care as much? If we started to put white America in
jail at the same rate that we're putting black America in jail, I wonder
whether our collective feelings would be the same, or would we be putting
pressure on the president and our elected officials not to lock up America, but
to save America?
Nkechi Taifa, Laying Down the Law, Race by Race, Legal Times, Oct. 10, 1994, at
S36.
Steven Madison, an Assistant U.S. Attorney in Los Angeles, admits that
minorities are targeted in crack cocaine arrests and prosecutions. He stated
that while crack is sold and used in middle and upper class communities, law
enforcement focuses on crack cocaine dealers in minority neighborhoods because,
as a result of limited resources, "we went where the brush fires
were." Sam Meddis, supra n.24, at 11A.
n26 A federal judge remarked recently:
As sad as it may sound, and as much as the Court feels discomfort in pointing
it out, if young white males were being incarcerated at the same rate as young
black males, the statute would have been amended long ago.
United States v. Clary, 846 F. Supp. 768, 792 (E.D. Mo. 1994).
III. THE GOVERNMENT'S VIEW THAT DISCOVERY IS NOT PERMISSIBLE UNTIL THE
DEFENDANT MAKES A SUBSTANTIAL THRESHOLD SHOWING OF SELECTIVE PROSECUTION, IF
ACCEPTED, WOULD IMPOSE AN UNNECESSARY AND CRIPPLING BURDEN UPON VINDICATION OF
EQUAL PROTECTION CLAIMS
Despite the swirling controversy surrounding federal drug prosecutions as well
as the contemporary evidence that racial bias continues to influence charging
decisions yet is difficult to ferret out, the government seeks a rule which, if
adopted, would render it immune from any discovery in nearly all selective
prosecution cases, regardless of their merit. The Court should reject this
approach because it is based upon a false premise that overprotects the
prosecution function and would impose an unrealistic and crippling burden of
production upon defendants.
A. The "substantial threshold" rule overprotects the
government's interest in preserving broad discretionary prosecution powers.
The government asks the Court to hold that "judicial inquiry into a
prosecutor's reasons for bringing a prosecution should not even begin unless
there is a substantial and concrete basis for suspecting unconstitutional
conduct." U.S. Brief at 19. Two justifications are advanced in support:
"by requiring a significant threshold showing, courts may avoid
unwarranted and highly intrusive inquiries into a prosecutor's judgment . . .
[as well as] prevent the needless diversion of government and judicial
resources from the adjudication of the criminal case to the disposition of the
selective prosecution motion." Id. at 20. Neither justifies such a
demanding standard.
To acknowledge that the prosecutor enjoys spacious discretion in deciding whom
to prosecute is also to recognize that such power "is the power to control
and destroy people's lives." n27 Justice Jackson observed that this broad
power of choice held within it the power to abuse "some group of unpopular
persons . . . ." n28 Thus, it is the very breadth of such power that creates
the potential for unequal treatment.
The risk of unequal treatment created by standardless discretion is troubling
not only as a threat to due process but also in its own right as well. Giving
prosecutors the power to invoke or deny punishment at their discretion raises
the prospect that society's most fundamental sanctions will be imposed
arbitrarily and capriciously and that the least favored members of the
community -- racial and ethnic minorities, social outcasts, the poor -- will be
treated most harshly. n29
n27 Bennett L. Gershman, Prosecutorial Misconduct, at 4-7 (1993)[hereinafter
Gershman].
n28 Robert Jackson, The Federal Prosecutor, 31 J.Crim.L. & Crim. 3, 5
(1940).
n29 James Vorenberg, Decent Restraint of Prosecutorial Discretion, 94 Harv. L.
Rev. 1521, 1555 (1981)[hereinafter Vorenberg].
Prosecutors are clothed with such broad powers for a noble purpose -- to enable
them to seek the "equitable objective of individualized justice"
within a system of limited resources. n30 But any time the defendant's race
enters the calculus, this high purpose is defeated, and the justification for
deferential judicial oversight vanishes.
n30 Gershman, at 4-6.
When a citizen makes a colorable showing that race likely influenced the
prosecutor's decision to file the pending charge, and claims that she needs
access to government files to generate additional proof of invidious
discrimination, the Court should require nothing more. Once an honest question
is raised about the very legitimacy of the proceeding, it is in the
government's interest as much as the defendant's to have the issue resolved
conclusively by a neutral magistrate based upon all relevant information.
Requiring the defendant to show more serves no purpose other than to suggest
that only citizens who are particularly nimble at detecting bias enjoy a
meaningful opportunity to be heard.
B. Such a rule is based upon a false premise: that the evidence
supporting such a claim is generally and reasonably available
Even though "the fate of those accused of crime is determined by
prosecutors . . . out of public view -- in the hallways of the courthouse, in
the prosecutors' offices, or on the telephone," n31 the government argues
that the evidence necessary to demonstrate selective prosecution is generally
available from sources other than the government's files. U.S. Br. at 26-27.
Thus, it is suggested, the defense is not unfairly burdened by a substantial
threshold rule.
n31 Vorenberg, at 1522.
This has surely not been our experience, nor that of other respected students
of the issue. Former federal prosecutor Gershman has written that "proving
improper motivation. . . is extremely difficult, and tends to explain the
infrequency with which" selective prosecution claims are advanced. n32 He
believes that discovery should follow once "a colorable entitlement or
plausible justification" is demonstrated. n33 Former Department of Justice
Official Vorenberg agrees:
. . . the problems involved in proving that a prosecutor had an impermissible
motive or personal animus are enormous. Rarely will a prosecutor explicitly
signal improper motives. Unless he does, the defendant must try to draw a clear
inference of discrimination by comparing his case with those of persons who
were not charged, . . . .n34
n32 Gershman, at 4-8.
n33 Id. at 4-26.4.
n34 Vorenberg, at 1542.
The cases upon which the government relies prove only that in certain unusual
circumstances, the defendant may have the ability to present considerable
evidence of similarly situated persons who were not prosecuted, as well as some
evidence of illicit motive. They hardly make the case for a hard and fast
heightened showing in every case. For example, in United States v. Hoover, 727
F.2d 387 (5th Cir. 1984), Hoover was one of three of nearly 300 air traffic
controllers criminally prosecuted after going out on strike. He was able to
show the pool of similarly situated persons easily because they all belonged to
the same union and he was their leader. Similarly, in United States v. Hazel, 696
F.2d 473 (6th Cir. 1983), the defendant was able to show other similarly
situated persons who were not prosecuted because they were members of a tax
revolt group to which he belonged.
More often, however, and as in this case, citizens claiming selective
prosecution have no special or ready access to the identity of similarly
situated persons whom prosecuting authorities chose not to prosecute for
similar offenses. And where the basis of the motion is racial discrimination,
it is extremely rare for public court files to contain information on the
defendant's race. As the task forces found, generation of a data base with the
identity of such persons that includes their race and ethnic identity is an
enormously time-consuming and expensive proposition when undertaken without the
cooperation of the prosecuting attorneys' office. Thus, there is little
substance to the government's assurance that a heightened burden would not
foreclose the assertions of such claims. n35
n35 In Batson v. Kentucky, 476 U.S. 79 (1986), the United States advanced a
similar argument in support of retention of the rule of Swain v. Alabama. See
Batson v. Kentucky, No. 84-6263, Brief of United States As Amicus Curiae
Supporting Affirmance at 26-27)("We also find unpersuasive the argument
that Swain makes it unduly difficult to demonstrate impermissible use of
peremptory challenges even when such abusive practices are actually going on. .
. . Moreover, public defender's offices and defense counsel's organizations are
well situated to collect the requisite statistics.") As it did in Batson,
the Court should reject such assurances as unrealistic.
C. The "substantial threshold" standard would impose a
crippling burden of production
Indeed, the government's argument bears an uncomfortable resemblance to the
supporting pillars of the now discredited rule of Swain v. Alabama, 380 U.S.
202 (1965): The government insists that prosecutors are presumed to act in good
faith and thus should not be subject even to judicial inquiry into illicit motive
in the absence of concrete evidence showing otherwise. n36 Just as unfettered
exercise of the peremptory challenge was good for the cause of justice because
it gave the government and defense appropriately broad leeway to remove biased
jurors who might escape for-cause removal, the government claims similarly
broad prosecutorial discretion best assures that limited resources will be used
in the most appropriate cases. n37 Courts are ill-equipped, in any event, the
argument continues, to review such decisions, and requiring a prosecutor to
explain why she is prosecuting a particular case, like having her explain why a
peremptory strike was used to eliminate a particular juror, will bring about
delay and deflect limited resources from the prosecution of law breakers. n38
n36 Swain, at 222; U.S. Br. at 16, 19.
n37 Swain, at 221; U.S. Br. at 17.
n38 Swain, at 221-22; U.S. Br. at 17.
If the Court accepts the government's position, and predicates access to even
non-privileged information on defendants' making a robust showing, defendants
will be denied meaningful judicial determination of their Equal Protection
claims unless they can first pull together a credible composite of selective
enforcement from other sources, a task that in many cases will require
painstaking review of hundreds of court files, consultation with scores of
other attorneys, and pursuing other sources sufficient to generate a body of
similarly situated persons not prosecuted.
Such a burden significantly exceeds that which the Court determined, in Batson
v. Kentucky, 476 U.S. 79, 92 n.17 (1986), to be crippling. Justice Powell
described such a burden through examples from lower court cases:
The lower courts have noted the practical difficulties of proving that the
State systematically has exercised peremptory challenges to exclude blacks from
the jury on account of race. As the Court of Appeals for the Fifth Circuit
observed, the defendant would have to investigate, over a number of cases, the
race of persons tried in the particular jurisdiction, the racial composition of
the venire and petit jury, and the manner in which both parties exercised their
peremptory challenges. [citation omitted] The court believed this burden to be
"most difficult" to meet. In jurisdictions where court records do not
reflect the jurors' race and where voir dire proceedings are not transcribed,
the burden would be insurmountable. [citation omitted]
We now know that the Swain rule was able to shelter for years the intentional
discriminatory conduct of certain prosecutors. n39 Adoption of a similar
standard here would surely generate similar sorry results.
n39 See e.g., Jones v. Davis, 835 F.2d 835 (11th Cir. 1988)(blacks
systematically excluded from petit jury service in Mobile County, Alabama over
significant period of time by state peremptory strikes); Love v. Jones, 923
F.2d 816 (11th Cir. 1991)(blacks systematically excluded from petit jury
service in Madison County, Alabama via state peremptory challenges); Horton v.
Zant, 941 F.2d 1449 (11th Cir. 1991)(blacks systematically excluded from petit
jury service in 8 Georgia counties from 1974-81 via peremptory challenge);
Miller v. Lockhart, 65 F.3d 676 (8th Cir. 1995)(blacks systematically excluded
from two Arkansas county petit juries from 1970-75 by state's use of peremptory
strikes).
IV. THE DISTRICT COURT'S DISCOVERY ORDER APPROPRIATELY BALANCED EACH
PARTY'S LEGITIMATE INTERESTS
The district court ordered discovery in this case only after deliberate and
thorough consideration both of the respondent's showing that a significant
statistical disparity existed in the race of defendants prosecuted in federal
court for crack distribution violations and of the government's explanations
for that disparity.
With their motion for discovery, respondents introduced evidence showing a
pattern of prosecutions which suggested that race was a significant charging
factor. Respondents demonstrated that all 24 crack cocaine cases prosecuted by
the government and closed by the Federal Public Defender's Office in 1991
involved black defendants.
At the hearing on the discovery motion, the district judge expressed concern
that the "government hasn't offered any explanation at all as to why . . .
persons . . .being brought . . . to Federal court for these drug offenses . . .
all . . . are black." n40 The judge offered the government an opportunity
to provide an explanation. However, at the hearing, the assistant United States
Attorney was unable to offer any explanation for the disparity, stating,
"I can't explain why the public defender's office has only encountered
black defendants [in] crack cocaine cases--I would have no explanation for
that." n41
n40 Hearing of Sept. 8, 1992, at 8.
n41 Id. at 9.
In the face of the government's complete inability to explain the statistical
disparity, the district judge ordered limited discovery, explaining that
"what the Court wants to know is whether or not there is any criteria in
deciding which of these cases will be filed in state court versus Federal court
and if so, what is that criteria." n42
n42 Id. at 26-27
To determine the appropriate scope of the discovery order, the Court took into
account the government's assertion that one criteria it used for deciding
whether to file in federal rather than state court was the existence of a joint
federal/state investigation. Government counsel explained that a joint
federal/state investigation is initiated when there is use of a firearm in
connection with a narcotics trafficking violation. n43 In response to this
explanation, the judge directed discovery of four specific non-privileged
items: a list of all cases from 1989-1992 in which the government charged both
cocaine base offenses and firearms offenses, the race of defendants in each of
these cases, whether each case was investigated by federal, state or joint law
enforcement authorities, and an explanation of the criteria used by the United
States in deciding whether to bring cocaine base cases in federal court.
n43 Id. at 20-21.
In its motion for reconsideration of the discovery order, the government
offered some of its criteria for prosecuting cases in federal as opposed to
state court. As part of its explanation, the government submitted the
declaration of the Chief of the Criminal Complaints Section of the U.S. Attorney's
Office which stated that the decision to bring the instant case in federal
court was made because the case met the general criteria the government applies
to all crack cases. However, the purported general criteria simply described
several aspects of the instant case. Counsel for the government later suggested
that the official general criteria applied to all crack cases were in fact the
same as the criteria present in the instant case. n44
n44 Government's Motion for Reconsideration, at 24-25; Hearing of Dec. 4, 1992,
at 6-8.
In response to the government's explanation, respondents argued that a number
of the defendants did not satisfy the suggested criteria. n45 Moreover,
respondents introduced evidence demonstrating that white crack cocaine dealers
exist and are prosecuted in state court only. n46
n45 Hearing of Dec. 4, 1992, at 26.
n46 First, the respondents introduced an affidavit of defense attorney Reed,
Director of the Criminal Courts Bar Association Indigent Defense Panel. The
Indigent Defense Panel handles more state court criminal cases than any other
association within Los Angeles County and is composed of over two hundred
defense lawyers. Reed attested that as Director of the Indigent Defense Panel,
he speaks to many state court judges, prosecutors, and defense attorneys who
state that there are many crack cocaine sale cases prosecuted in state court
that involve racial groups other than blacks. Hearing of Dec. 4, 1992, at
28-29. Second, defense counsel O'Connor submitted an affidavit stating that she
had spoken to Chris Fernandez, the intake coordinator at Impact House in
Pasadena, California, who stated that in his experience dealing with the
treatment of cocaine base addiction, there are equal numbers of minority and
caucasian users and dealers of crack.
After carefully weighing all the evidence, the district judge found the
explanations offered by the government inadequate, concluding that the
government had failed to make clear the criteria, "if there is any
criteria, for bringing this case and others like it in Federal court." n47
Thus, the court affirmed her discovery order.
n47 Hearing of Jan. 5, 1993, at 3.
The district judge's approach to ordering the limited discovery in this case
was cautious, careful and reasonable. First, the judge, confronted with
unrebutted evidence of a pattern of racial prosecutions, gave the government a
full and fair opportunity to offer an explanation. Only after the government
was unable to offer a single explanation for the racial disparity did the judge
order limited discovery of nonprviledged relevant information. This order is
structured in a way that limits its reach to evidence directly relevant to
issues that the government articulated were its criteria for bringing crack
cocaine cases in federal as opposed to state court.
The Court should view this order as a sound resolution of this fact-intensive
dispute. Because respondents have set forth a colorable showing, and
"without discovery, the contention that 'other similarly situated' have not
been prosecuted... may be impossible to show,'" n48 the lower court
judgment should be affirmed.
n48 United States v. Armstrong, 48 F.3d 1508, 1521 (9th Cir. 1995)(en
banc)(Wallace, C.J., concurring).
CONCLUSION
Amici curiae respectfully request that the Court affirm the judgment of the
Court of Appeals.
Respectfully submitted,
Steven R. Shapiro, American Civil Liberties Union Foundation, 132 West 43
Street, New York, NY 10036, (212) 944-9800
Elaine R. Jones, Theodore M. Shaw, *George H. Kendall, L. Song Richardson,
NAACP Legal Defense & Educational Fund, Inc., 99 Hudson Street, 16th Floor,
New York, NY 10013, (212) 219-1900, Counsel for Amici Curiae
* Counsel of Record
Dated: January 16, 1996
APPENDIX A
The state and federal court task forces were charged with determining whether
racial and ethnic bias still affects the administration of justice. It is
impossible to capture the thoroughness of the research conducted by each task
force and the breadth of their findings and recommendations. However, to lend
some context in which to understand the task force reports, below is a brief
description of the methodology employed by each state and federal court task
force on race and ethnic bias in the courts and excerpts from each study's findings
and recommendations. In addition, where the information was available, a brief
history of the task force's creation is included.
COMMITTEE ON RACE AND ETHNICITY TO THE D.C. CIRCUIT TASK FORCE ON
GENDER, RACE AND ETHNIC BIAS, DRAFT FINAL REPORT, JAN. 1995
The Task Force was created in 1990 by the D.C. Circuit Judicial Council. The
Task Force was created because, while efforts to explore race and ethnicity
were underway at the state and local levels, there was growing recognition that
these issues merited attention within the federal judicial system as well.
The Task Force interviewed judges on the Circuit to obtain their experiences
and observations relating to gender, race, and ethnicity. It interviewed 80% of
the trial judges, and 3 appellate judges of the Circuit. Judicial interviews
were both anonymous and voluntary. Two appellate judges submitted written
comments. The task force also conducted focus groups with practicing attorneys,
community representatives, and courthouse personnel.
RECOMMENDATIONS
The Federal Judicial Center, or another appropriate body, should study the
results of litigation (such as employment discrimination cases) that involve
issues of race, ethnicity, or gender and that affect a significant number of
racial and ethnic minorities, through research controlling for the gender, race
or ethnicity of the parties and attorneys in such cases.
FLORIDA SUPREME COURT RACIAL AND ETHNIC BIAS STUDY COMMISSION, WHERE
THE INJURED FLY FOR JUSTICE: REFORMING PRACTICES WHICH IMPEDE THE DISPENSATION
OF JUSTICE TO MINORITIES IN FLORIDA, DEC. 11, 1990
The Commission was created on December 11, 1989 by the Chief Justice. It was
charged with assessing whether race affected the dispensation of justice and
with developing longterm strategies to eradicate any vestiges of
discrimination.
The Commission developed the findings and recommendations contained in its
report after analyzing information from several different sources. First, the
Commission held public hearings in every region of the state. Second, the
Commission retained leading researchers from Florida's universities and
nationally recognized experts to conduct studies and to assist it in
formulating the findings and recommendations contained in the report.
FINDINGS:
Extensive evidence suggests that minorities are too often subjected to the
threat of abuse and brutality by law enforcement organizations. Survey
responses suggest that African-Americans and Hispanic individuals are stopped
and detained more frequently than a non-minority would be under similar
circumstances and are treated with less respect and more unnecessary force than
are their white counterparts.
Minority juveniles are being treated more harshly than non-minority juveniles
at almost all stages of the juvenile justice system, including: arrest;
referral for formal processing; transfer to the adult criminal justice system;
secure detention prior to adjudication; and commitment to traditional state-run
facilities.
Opportunities for informal processing and diversion are not equally accessible
to minority juveniles. The deeper the penetration of the juvenile justice
system towards "deep-end" commitment, the greater the
overrepresentation of minority juveniles.
The differential treatment of minority juveniles results, at least in part,
from racial and ethnic bias on the part of enough individual police officers,
intake workers, prosecutors, and judges, to make the system operate as if it
intended to discriminate against minorities. It results as well from bias in
institutional policies, structures, and practices.
RECOMMENDATIONS:
Police practices, including field adjustments, relating to law enforcement
interaction with juveniles should be recorded for supervisory review and
monitoring to determine whether and how race or ethnicity has entered into
arrest and disposition decisions by Florida's law enforcement personnel.
The State should mandate the establishment of procedures, in each of the
agencies comprising the juvenile justice system, to encourage and provide means
for reporting, investigating, and responding to professionals whose decisions
appear to have been influenced by racial or ethnic bias.
FLORIDA SUPREME COURT RACIAL AND ETHNIC BIAS STUDY COMMISSION, WHERE
THE INJURED FLY FOR JUSTICE: REFORMING PRACTICES WHICH IMPEDE THE DISPENSATION
OF JUSTICE TO MINORITIES IN FLORIDA, DEC. 11, 1991
The Legislature, through the joint efforts of the criminal justice and
corrections committees of the House and Senate,...should immediately undertake
a review of those cases prosecuted under both mandatory minimum statutes and
the "habitual offender" statute to determine the effect of race or
ethnicity in their selection, processing, or ultimate disposition. To the
extent that improper considerations are playing a role, the Legislature should
repeal these statutes altogether.
The Florida Legislature should require, as a condition of funding, that each
State Attorney: a) promulgate effective criteria which ensure the fair and
equal exposure of individuals to processing under mandatory minimum statutes;
and b) annually submit a report to the legislative appropriations committees
detailing the racial/ethnic composition of all individuals prosecuted under
these statutes. To the extent that such reports reveal racial/ethnic
disparities in the population of individuals who are prosecuted under these
statutes, the Legislature should require a detailed justification for the
impact of prosecutorial decision-making in this area.
GEORGIA SUPREME COURT COMMISSION ON RACIAL AND ETHNIC BIAS IN THE COURT
SYSTEM, LET JUSTICE BE DONE: EQUALLY, FAIRLY AND IMPARTIALLY, AUG. 1995
The Commission was created by the Georgia Supreme Court on February 1, 1993.
The Commission held six public hearings throughout the state. In addition, the
Commission conducted an attitude survey in order to assess the perceptions of
judges, clerks and attorneys practicing in Georgia courts. All judges of the
superior, state, juvenile, and probate courts, chief magistrates, and clerks of
the superior court were sent surveys in the Fall of 1994. Fifty to sixty
percent of each group returned completed questionnaires. The attorney attitude
survey was sent to a sample of 2,000 attorneys. Thirty-one percent of the
attorneys surveyed responded.
RECOMMENDATIONS
Each circuit should be directed to develop and implement (pending the approval
of the Supreme Court) a formal pretrial release policy, specifying factors used
in determining eligibility for bail.
The State has the ability to undertake additional objective testing of the
perception of bias in mandatory sentencing. First, a complete and thorough
study of the application of [the mandatory sentencing statute] should be
conducted, breaking down data for each circuit. In order to achieve this,
information of the criminal record of the defendant, the type of representation
(private, public defender, or appointed indigent defense), the type of
disposition (plea or trial), and the quantity of drugs should be developed,
obtained and incorporated into the relevant databases.
The Implementation Committee with the assistance of such agencies as the
Georgia Statistical Analysis Bureau (under the auspices of the Criminal Justice
Coordinating Council) and the Prosecuting Attorneys' Council, should see that
these studies are conducted. Periodic analyses and assessments of other
mandatory sentences should be conducted so as to detect potential racial
disparity. If such studies do indicate racial bias in the court system, the
Implementation Committee should pursue steps to rectify any problems.
The Prosecuting Attorney's Council [should] develop explicit, race-neutral
guidelines for use in [mandatory minimum] cases by district attorneys to
safeguard against bias.
The Commission feels that the legislature and the courts should consider four
alternative recommendations as possible means of addressing this issue [of
peremptory challenges]:
Peremptory strikes could be eliminated in civil and criminal cases.
De novo appellate review of trial court decisions on Batson motions could be
provided.
Trial judges could conduct voir dire using questions submitted in advance in
writing by counsel.
Trial judges could be encouraged to sustain Batson's objections when the
questioned strike was made for frivolous, "hunch-type" reasons
unrelated to the case at bar.
STATE OF IOWA EQUALITY IN THE COURTS TASK FORCE, FINAL REPORT, FEB.
1993
The Supreme Court of Iowa established the Equality in the Courts Task Force on
December 4, 1990. The task force held five public hearings throughout the state
and received written comments from over 300 people. Additionally, the Task
Force contracted the services of the research firm of Selzer Boddy, Inc. to
conduct four major studies directed at judges, attorneys, court personnel, and
the general public. The Task Force also designated a team of researchers to
undertake a special retrospective study of criminal cases to determine the
effect of race in the criminal justice process. The perceptions of the general
public were elicited via a telephone survey of a cross section of 400 Iowans.
Surveys were mailed to 2,114 attorneys across the state, 1600 court employees,
and 351 judges. The response rate for the written surveys was high: 84% for
judges, 54% for attorneys, and 43% for court employees.
FINDINGS
In each case, there are unexplained differences which are not associated with
any known factor but race.
The Task Force believes the uniform use of pretrial release guidelines would
decrease the arbitrary or subjective nature of pretrial release decisions.
The Task Force has discovered that information is not easily retrievable
throughout the state to permit study of possible race bias in the court system
. . . . The benefit derived from the uniform collection of such information
from all stages of the criminal process is significant.
The State should maintain a centralized data base that includes information on
defendant race, victim race,...along with the range of legal and social
variables included in the present study. This would allow periodic monitoring
of charging and sentencing discrepancies along racial lines.
The Task Force believes that a collections system data base needs to be
established on an ongoing basis to gather the facts necessary to initiate, at
any time, an examination and analysis of disparate incarceration rates among
adults and juveniles. Otherwise, it will be necessary to conduct expensive and
time-consuming criminal case studies; such case studies cannot be done
throughout the state efficiently or on an ongoing basis.
RECOMMENDATIONS
The results of the Criminal Case Study should be discussed at the annual judges
conference. The present and future court system database should be monitored
periodically, and patterns of racially associated disparities noted, publicly
disseminated, and specifically brought to the attention of Districts where
disparities occur.
County attorney offices should be required to keep records of the charges on
initial arrest, the charges ultimately filed, the arrests they chose not to
prosecute, the reasons they chose not to prosecute, and the race and gender of
the alleged perpetrators.
MASSACHUSETTS SUPREME JUDICIAL COURT COMMISSION TO STUDY RACIAL AND
ETHNIC BIAS IN THE COURTS, FINAL REPORT, SEPT. 1994
The Commission was created on August 2, 1990 by the Justices of the
Massachusetts Supreme Judicial Court. The impetus for the Commission's creation
was an incident that occurred in Suffolk Superior Court in August 1988. During
a criminal session of Suffolk Superior Court, two court officers mistook
Assistant Attorney General Thomas H. Brewer, an African American, for a
defendant and attempted to bar him, in an inappropriate manner, from gaining
access to a part of the courtroom that he was entitled to enter. The resulting
publicity highlighted the issue of racial bias in Massachusetts courts. In the
Spring of 1990, the Chief Justice, responding to growing public concern, met
with bar association leaders to discuss the need for a study. The Commission
was formed following the meeting.
The Commission held seven public hearings and focus group meetings across the
state to solicit a wide range of public input. The Commission also surveyed the
bench and bar members, conducted an extensive research project on the racial
composition of jury pools and juries, and examined the effect of bias on
sentencing. An attorneys' survey was sent to 4,542 attorneys. A judges' survey
was sent to 328 judges. The response rates were 56% and 80% respectively.
RECOMMENDATIONS
The Supreme Judicial Court should undertake, on its own or through the
Massachusetts Sentencing Commission, a comprehensive study of sentencing
patterns to determine whether there is any disparity related to racial/ethnic
bias. A sentencing study should include a detailed analysis of the sentencing
patterns of young male offenders. This analysis should be conducted on serious
crimes committed by white, black/African American, Hispanic and Asian American
males by comparing the rates of incarceration and sentence length across these groups.
The Trial Court should produce and distribute regular reports of sentencing
patterns by race and ethnicity.
The Office of the Commissioner of Probation, the Committee for Public Counsel
Services, the District Attorneys' offices, the Trial Court and local police
departments should develop coordinated information systems which will allow
comparison of the data each has collected. The District Attorney's office for
each county should be the primary agency responsible for collecting the data on
case processing.
MICHIGAN SUPREME COURT TASK FORCE ON RACIAL/ETHNIC ISSUES IN THE
COURTS, FINAL REPORT, DEC. 1989
The Task Force was created on September 15, 1987 by the Michigan Supreme Court.
The Task Force focused its investigations on seven major areas: judicial
behavior, court treatment, court employment practices, ethics, attorney
behavior, criminal justice and jury processes. The Michigan Supreme Court Task
Force was the first of its kind in the nation.
The Commission was created after the Michigan Supreme Court Citizens'
Commission to Improve Michigan Courts called for the creation of task forces on
gender and racial/ethnic issues in the courts in 1986. The Citizens' Commission
had found that a significant and disturbing perception existed among Michigan
citizens: Over one-third believed that individuals were discriminated against
in the Michigan court system on the basis of their gender, race or ethnic
origin.
The task force held public hearings in eight cities throughout the state. In
addition, it surveyed a random sample of 900 attorneys who practiced in the
courts. The response rate was 45.6%. It also conducted a survey of 574 judges
with an overall response rate of 45%.
FINDINGS
That trial judges should be encouraged to implement the Batson standard on
their own initiative in any jury selection process in which peremptory
challenges appear to be racially motivated.
RECOMMENDATIONS
The Michigan Supreme Court should conduct a study similar to that done in the
felony sentencing project of actual bail practices to investigate the question
of disparity in bail practices by race, ethnicity, gender, economic class and
region and to establish a process to develop recommendations in the event that
disparity is statistically shown.
Current analysis of sentencing should include factors relating to the impact of
and interrelationship of:
a. misdemeanor convictions and sentences
b. race, ethnic background and gender of the judge
c. race, ethnic background and gender of the victim
d. race, ethnic background and gender of the defendant
e. guideline departures
All judges should receive an analysis of their own sentencing practices on an
annual basis.
NEW JERSEY SUPREME COURT TASK FORCE ON MINORITY CONCERNS, FINAL REPORT,
JUNE 1992
The Task Force was created in September 1985. The purpose of the task force was
to critically examine the concerns of minorities with their treatment in the
courts and to propose solutions to identified problems. The Task Force was
created after Chief Justice Robert Weilentz met with representatives of the
Coalition of Minorities in the Judiciary in the summer of 1983. The Coalition
was an organization founded in 1980 to address issues of concern to racial
minorities in the judiciary and to make recommendations to the Chief Justice,
the Supreme Court, and the Administrative Director of the Courts on ways to
address problems relating to minority concerns. As a result of the meeting, the
Chief Justice convened a Committee on Minority Concerns for the purpose of addressing
the concerns of the Coalition. After reviewing the Committee's report, in
September 1985, the Task force was created.
The Task Force retained several independent research consultants to execute a
wide-ranging research program. The Task Force also met with representatives of
bar associations, administrators of key public and private agencies involved
with the administration of justice, and conducted telephone surveys. Thirteen
public hearings were held at different locations around the state. Written testimony
was also taken.
A judicial survey aimed at capturing perceptions of bias in the justice system
was undertaken. Of the 340 Superior Court judges attending the Judicial
College, nearly 50% returned the questionnaire. The response rate for court administrators
attending the Judicial Staff College was 61%.
RECOMMENDATIONS
The Supreme Court should require that all rules and directives regarding bail
be reviewed and revised in order to promulgate procedures to be applied
uniformly statewide.
The Chief Justice should consider approaching the Attorney General to explore
the possibility of jointly sponsoring an empirical analysis of recent New
Jersey samples of bail and sentencing outcomes, controlling for key factors
that influence the outcomes of these decisions, examining the possibility of
cumulative discrimination effects over the sequence of decisions from arrest
through sentencing, and determining the degree to which discrimination occurs
at each of those decision points.
REPORT OF THE NEW YORK STATE JUDICIAL COMMISSION ON MINORITIES,
EXECUTIVE SUMMARY, APR. 1991
The Commission was formed on January 21, 1988 by Chief Judge Sol Wachtler. The
mandate of the Commission was to examine the courtroom treatment of minorities,
review the representation of minorities in nonjudicial positions within the
courts, and review the selection processes for judges.
The Commission was created after members of the Coalition of Blacks in the
Courts met with the Chief Justice in 1987 to discuss both the despair felt by
judges, nonjudicial officers and litigants regarding the treatment of Blacks in
the courts and the underrepresentation of Blacks within the judiciary and the
legal profession.
The Commission held four public hearings throughout New York state. Additionally,
the Commission held a series of public meetings in each county with a minority
population of at least 10%, met with most judges in the state, met with court
administrators, and met with leaders of various bar and community associations.
The Commission conducted an attorney survey. Of the 840 attorneys surveyed, 81%
responded. The Commission also conducted a survey of the 1,129 judges in the
State. The response rate was 57%.
RECOMMENDATIONS
Judges should review their bail and sentencing decisions to ensure that they
are fair and not influenced by racial or ethnic stereotypes.
Sentencing statistics concerning the race of victim, defendant and complainant
should be maintained along with case outcome and should be published by the
Unified Court System in cooperation with the New York State Division of
Criminal Justice Services.
Judges should exercise heightened scrutiny to ensure that peremptory challenges
are not used improperly in the voir dire process.
The Commission on Judicial Conduct should give complaints of racial bias high
priority and keep records of its investigations and disposition of charges in a
manner permitting analysis of whether there were any patterns of racial or
ethnic discrimination.
OREGON SUPREME COURT TASK FORCE, REPORT ON RACIAL/ETHNIC ISSUES IN THE
JUDICIAL SYSTEM, MAY 1994
The Oregon Supreme Court Task Force was established by the Oregon Supreme Court
on February 21, 1992. The task force was created to identify problems faced by
racial and ethnic minorities in the judicial system and to propose a course of
action to address the problems and concerns.
The Task Force gathered information from testimony at nine public hearings
throughout the state. Additionally, 7,525 persons who use the court system were
surveyed regarding issues of race and ethnicity in the Oregon court system.
Surveys were sent to 5,438 judges, court personnel, and attorneys. The response
rate was 40%. In addition to the extensive survey research, prior research, and
written comments submitted to the task force were analyzed.
FINDINGS
Peremptory challenges, eliminating individuals from serving on juries, are used
solely because of the race or ethnic background of prospective jurors.
In the criminal justice area, the evidence suggests that, as compared to
similarly situated nonminorities:
minorities are more likely to be arrested,
minorities are more likely to be charged,
minorities are less likely to be released on bail,
minorities are more likely to be convicted,
minorities are less likely to be put on probation,
minorities are more likely to be incarcerated.
In the juvenile justice system:
minorities are more likely to be arrested,
minorities are more likely to be charged with delinquent acts,
minorities are more likely to be removed from their family's care and custody,
minorities are more likely to be remanded for trial as adults,
minorities are more likely to be found guilty of delinquent acts,
minorities are more likely to be incarcerated,
minorities lack experts sensitive to the cultural differences of minorities.
RECOMMENDATIONS
District attorneys should be required to collect and report to the Criminal
Justice Council data on the variable of race in all charging decisions.
The legislature should direct the Criminal Justice Council to develop uniform
charging standards to be used by all prosecutors in Oregon. The uniform
standards should be sufficiently detailed to provide meaningful limits on
prosecutorial discretion and to enable judicial review. The Criminal Justice
Council should be directed to report biannually to the legislature on the
implementation of the standards.
The Chief Justice should require trial judges, in rendering pretrial release
decisions, to use uniform forms that include the race of defendants.
The legislature should direct the Criminal Justice Council to study and report
the extent to which the race of a defendant affects the outcome of a pretrial
release decision, either in the decision whether to release on personal
recognizance or in the conditions of release.
Because of the immense help that its statistics have been to this task force,
and because it is imperative that such statistics be available in the future,
the Criminal Justice