Cultural Considerations

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SYMPOSIUM ON PURSUING RACIAL FAIRNESS IN CRIMINAL JUSTICE: TWENTY

YEARS AFTER MCCLESKEY v. KEMP

MARCH 2–3, 2007

KEYNOTE ADDRESS: MAINTAINING HOPE IN THE STRUGGLE AGAINST THE

CONSTITUTIONAL TOLERANCE OF RACIAL DISCRIMINATION

Theodore M. Shaw *

I want to focus not only on the death penalty in my remarks, but also on the broader role of race in the criminal justice system and McCleskey’s role in insulating systemic racial discrimination from attack.1 Along the way, I want to make some observations about the

* Theodore M. Shaw is Director-Counsel and President of the NAACP Legal Defense and Educational Fund Inc. (LDF). Shaw joined the LDF in 1982. He directed its education docket and litigated school desegregation, housing discrimination, voting rights, capital punishment, and other civil rights cases. He was lead counsel for black and Latino students in Gratz v. Bollinger, 539 U.S. 244 (2003). Shaw has taught constitutional law, civil procedure, and civil rights at the University of Michigan Law School, and is currently an adjunct professor of law at Columbia University Law School. These remarks were delivered at the symposium entitled “Pursuing Racial Fairness in the Administration of Justice: Twenty Years After McCleskey v. Kemp,” held by the NAACP Legal Defense and Educational Fund and Columbia Law School on Mar. 2–3, 2007.

1. McCleskey v. Kemp, 481 U.S. 279 (1987).

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gratuitously cramped constitutional jurisprudence that has come to be applied to race discrimination by the Supreme Court and the lower federal courts, and that particularly has been applied to racial discrimination claims brought by African Americans and other people of color. At the same time that this cramped reading of the Constitution’s Fourteenth Amendment Equal Protection Clause2 has been applied to those claims, the Supreme Court and other courts have demonstrated their willingness to loosen constitutional strictures when it comes to racial discrimination claims brought by white plaintiffs.3

Now, that sounds like sour grapes, and I readily acknowledge that it is. So, there’s a piece of this that I want to address first—the sour grapes piece—but I believe it to be wholly legitimate. Why spend all this time on sour grapes? The workhorse anti- discrimination provision of the Constitution, of course, has become the Equal Protection Clause.4 In the infancy of the Fourteenth Amendment, the Privileges and Immunities Clause5 had more life than the Equal Protection Clause.6 In fact, if you go back and look at Plessy v. Ferguson, there was more of a discourse about Privileges and Immunities than there was about Equal Protection.7 But in time

2. U.S. Const. amend. XIV, § 1. 3. See, e.g., Bd. of Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265

(1978) (holding a special admissions program reserving 16 of 100 spots for disadvantaged minority students to be illegal); cf. Shaw v. Reno, 509 U.S. 630 (1993) (allowing white plaintiff to challenge legislative creation of majority- minority voting districts); Nw, Fla. Chapter of the Associated. Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993) (holding that association of general contractors had standing to mount equal protection challenge to constitutionality of ordinance according preferential treatment to minority-owned businesses).

4. U.S. Const. amend. XIV, § 1. 5. Id. 6. Justice Miller’s opinion in the Slaughter-House Cases in 1873 was the

first occasion the Supreme Court had to rule on a Fourteenth Amendment claim. Slaughter-House Cases, 83 U.S. 36 (1873). The Privileges and Immunities Clause subsequently enjoyed a short life before it fell into disuse. The Supreme Court rarely found a violation of the Equal Protection Clause until the 1950s. In fact, Justice Oliver Wendell Holmes referred to the Equal Protection Clause as “the last resort of constitutional arguments.” Buck v. Bell, 274 U.S. 200, 208 (1927).

7. Plessy v. Ferguson, 163 U.S. 537, 543–48 (1896) (holding that “the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment” and noting that the

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the Equal Protection Clause did come to be the workhorse of the Constitution when it comes to discrimination.8

The Equal Protection Clause says, of course, that “no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.”9 Very simple. Note that the word “intentionally” does not appear before the word “deny” or anywhere else in Section I of the Fourteenth Amendment. The Supreme Court has, nonetheless, found an intent requirement to be an indispensable element of a Fourteenth Amendment claim.10 The intent standard, by definition and logic, admits the existence of a whole category of racial discrimination that the Constitution does not reach. In other words, the Constitution tolerates racial discrimination. In Board of Regents of the University of California v. Bakke, the Supreme Court identified a whole category of discrimination that it called “societal discrimination.”11 I often say that this is discrimination for which no one is responsible and for which there is no remedy. The Court wrings its hands about it and then washes its hands of it. Nobody responsible, no remedy—the Constitution tolerates racial discrimination.

In Brown the Supreme Court said, “[t]o separate [African- American children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone,” and concluded that “in the field of public education the doctrine of ‘separate but equal’ has no place,”

Fourteenth Amendment secures positive rights “by way of prohibition against state laws and state programs affecting those rights and privileges”).

8. See, e.g., Brown v. Bd. of Educ., 347 U.S. 483 (1954) (holding segregation of children in a public school based on race was a violation of the Equal Protection Clause); Loving v. Virginia, 388 U.S. 1 (1967) (finding that statutes preventing marriages between persons based solely on race were violations of the Equal Protection Clause).

9. U.S. Const. amend. XIV, § 1. 10. See Washington v. Davis, 426 U.S. 229, 239 (1976) (upholding the

constitutionality of police officer promotion scheme with racially discriminatory impact but no proven racially discriminatory purpose).

11. Bd. of Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 296, 307–10 (1978) (asserting that “[n]o one denies the regrettable fact that there has been societal discrimination in this country” but referring to “societal discrimination” as “an amorphous concept of injury that may be ageless in its reach into the past”).

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and “[s]eparate educational facilities are inherently unequal.”12 Our school desegregation jurisprudence has since adopted a de jure/de facto distinction—nowhere is this distinction written into the Constitution, for those who believe strictly in original intent, but nonetheless there it is in our constitutional jurisprudence.13 The de facto distinction, the whole term “de facto segregation,” is a curious concept given the history of how American communities came to be segregated. Segregation of African Americans, as manifested in housing and schools, did not happen accidentally, or serendipitously, in cities and communities across the United States. It is the consequence of decades and decades of discrimination by governmental actors on the state, local, and federal levels that, combined with the deeds of private actors, created the framework for segregation we maintain today. But in any event, de facto discrimination is not actionable. The Constitution tolerates racial discrimination.

Black and brown students in 2007 are heavily segregated by race and by economic status, and are in inferior schools that are often pipelines to jails and prisons throughout our country.14 Our jurisprudence holds that this segregation, because some districts maintained desegregated schools for a period of time under court supervision, is somehow unconnected to our long history of segregation and discrimination in public schools now, leaving this segregation and this inequality unreachable by law. The Constitution tolerates racial discrimination under this jurisprudence.

And then, of course, there is McCleskey, which accepts for the purposes of adjudication the legitimacy of the Baldus study and finds that neither the Fourteenth Amendment nor the Eighth Amendment

12. Brown, 347 U.S. at 494–95. 13. See Keyes v. Sch. Dist. No. 1, Denver, Colo. 413 U.S. 189 (1973)

(emphasizing “purpose or intent to segregate” as the differentiating factor between de jure and de facto segregation); Freeman v. Pitts, 503 U.S. 467, 493 (1992) (finding that the requirements for eliminating de facto segregation are less strict than the requirements for eliminating de jure segregation); Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S.Ct. 2738, 2761 (2007) (further discussing the distinction between de facto and de jure segregation).

14. See generally Gary Orfield et al., The Civil Rights Project at Harvard University, Losing Our Future: How Minority Youth are Being Left Behind by the Graduation Rate Crisis (2004), available at http://www.urban.org/ publications/410936.html (finding that, controlling for poverty, the level of nonwhite students at a school is correlated with higher dropout rates and a higher likelihood of a prison sentence).

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was violated.15 I continue to believe that perhaps the most pernicious part of McCleskey is the majority’s observation that the racial disparities that were spotlighted by the Baldus study were not limited to capital cases, and that, therefore, the court couldn’t do anything about them, and shouldn’t.16 The notion that the fact that racial discrimination is systemic renders it non-actionable should be stunning. In fact, in litigation, what it means is that the more systemic the showing, the more certain the loss. It is a shameful jurisprudence that ought to make any fair-minded person seethe with anger against the injustice of our constitutional tolerance of racial discrimination—but of course the fault lies not with the Constitution, but rather with ourselves. And by that I mean with the judges and the justices who created this cramped reading of the Constitution, with those who teach and practice law who yield unquestioning and uncritical of this jurisprudence, and all who accept it. There is nothing written into the Constitution that requires it, but there it is nonetheless.

And for those of us who accept the notion that we need to play within the sandbox that the conservative Supreme Court decisions have created, it creates a dilemma for us. We’re lawyers. We operate within the law. We respect the institution that is the Supreme Court and we respect the lower federal courts. I am not advocating that we disrespect our system of adjudicating cases or the judiciary itself. I am advocating that we cannot accept the principle that the Constitution tolerates racial discrimination simply because we have had judges and justices on the courts that, in their time, when the issues came to them, were not able to find their way to a vigorous and aggressive interpretation of the Constitution that does not tolerate racial discrimination.

We make these arguments all the time in our cases. We made them in Bakke.17 We made them in the Grutter and Gratz cases.18 We

15. McCleskey, 481 U.S. at 313. 16. Id. at 314–19. 17. Bakke, 438 U.S. 265 (1978) (holding that a white applicant must be

admitted to a state medical school because the school could not prove that he would have been rejected absent a program to fill 16 of 100 spots with disadvantaged minority youth); see Brief of NAACP Legal Defense Fund as Amicus Curiae in Support of Petitioners, Bakke, 438 U.S. 265 (No. 76-811).

18. Grutter v. Bollinger, 539 U.S. 306 (2003) (holding a state law school admissions program that considered race for the purpose of achieving student body diversity did not violate the Fourteenth Amendment); Gratz v. Bollinger,

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continue to make them at every opportunity. And I know that sometimes people view us as howling in the wind, and think that nobody is paying attention, perhaps. But I believe that we have to continue to stand against an interpretation of the Constitution that leaves black, brown, and other people of color unprotected by the Fourteenth Amendment, or by other constitutional provisions.

If I had more time, I would tell you a little bit more about the sour grapes that I have with respect to how the Constitution is interpreted more liberally in the so-called “reverse discrimination cases.” But let me give you two quick examples. Shaw v. Reno was a case in which the Supreme Court found that white voters had standing to bring an “analytically distinct” equal protection claim challenging legislative creation of majority-minority districts in North Carolina, even though white voting strength had not been diluted.19 There was no pre-existing cause of action for the kind of claim that was brought before the Court. Interestingly enough, in Shaw the Court cited Wright v. Rockefeller20 for the proposition that our Constitution commanded the welding together of all the different people in this country, and used it as a battering ram against majority-minority districts that were drawn in the face of racially polarized voting.21 If you read the Court’s opinion in Shaw, you would think that there was an affirmative duty imposed by the Constitution to integrate. Well, the Legal Defense Fund has been fighting to integrate this society since well before 1954, and frankly we are one of the few organizations that is fighting to do it today—see the two cases in the Supreme Court pending now out of Louisville, Kentucky and Seattle, Washington involving the constitutionality of voluntary

539 U.S. 244 (2003) (holding that state university’s admissions program was not sufficiently tailored to achieve a legitimate state objective and thus violated the Equal Protection Clause); see Brief of NAACP Legal Defense Fund as Amicus Curiae in Support of Respondents, Grutter, 539 U.S. 306 (No. 02-241).

19. Shaw v. Reno, 509 U.S. 630, 652 (1993) (noting that “[n]othing in the decision precludes white voters (or voters of any other race) from bringing the analytically distinct claim that a reapportionment plan rationally cannot be understood as anything other than an effort to segregate citizens into separate voting districts on the basis of race without sufficient justification.”).

20. Wright v. Rockefeller, 376 U.S. 52, 58 (1964) (deferring to trial court finding of failure to show that redistricting scheme was “the product of a state contrivance to segregate on the basis of race or place of origin.”).

21. Shaw, 509 U.S. at 645–48.

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school integration.22 The Supreme Court’s jurisprudence in race cases has made the struggle to desegregate and to integrate the United States a difficult process with limited and ephemeral effect.

Second example: the so-called “reverse discrimination” cases involving affirmative action. The underlying intent of affirmative action is not the subordination or the denial of opportunities to white people, and yet the Supreme Court, in spite of its imposition of an intent doctrine in equal protection cases, cannot find a way to distinguish affirmative action from invidious discrimination. Here’s where we stand with respect to the Equal Protection Clause’s application to race: it’s possible for a black or brown person, a person of color, to win a case where the defendant is blatantly, clumsily, and stupidly discriminatory these days; it is also possible to see discrimination inferred under the Arlington Heights standard23, but courts are reluctant to find discrimination and to grant those inferences these days.24 And so they are often hostile to those kinds of claims. Our federal jurisprudence treats systemic race discrimination as it would a political question: it’s non-justiciable. Our jurisprudence has erected almost insurmountable barriers to challenging racial discrimination on all fronts. Nowhere is the effect of this gratuitously cramped and fundamentally flawed jurisprudence manifested more importantly than in our criminal justice system. McCleskey sits at the pinnacle of this jurisprudence, where the stakes are the highest, and it guts basic notions of fairness. It goes to the core of our national principles.

22. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 127 S.

Ct. 2738 (2007) (holding that racial balancing was not a compelling state interest and that race could not be used as sole factor in assigning students to schools). The Seattle and Louisville cases were consolidated for the purposes of this decision. Id. at 2746.

23. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977) (holding that evidence of a discriminatory purpose, rather than discriminatory effects alone, is needed to invalidate an official action under the Equal Protection Clause).

24. See, e.g., Smith & Lee Assocs. v. City of Taylor, Mich., 102 F.3d 781, 794 (6th Cir. 1996) (reversing district court’s finding of discrimination and holding that even if plaintiffs can establish that a defendant “was motivated by a discriminatory animus, defendant must be given the opportunity to prove by a preponderance of the evidence that it would have reached the same decision even if it had not been influenced by discriminatory animus”); Cardinal Towing & Auto Repair, Inc. v. City of Bedford Tex., 180 F.3d 686, 698 (5th Cir. 1999) (affirming summary judgment for defendant and refusing to infer discriminatory intent where not conclusively demonstrated).

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The great dream of this nation is that a child born today enters the world unbounded, with a life full of possibilities dictated only by the scope of his or her ambition, talents, and abilities. That dream recalls the language of Martin Luther King’s 1963 speech about living in a country where his children would be judged not by the color of their skin but by the content of their character.25 Of course, we’re all well aware of the limitations of this vision, of the limiting effects of poverty, inequities of gender, the benefits of wealth, the effects of education, work opportunities, and life circumstances. And yet, of all the things that matter, that help or that hinder, for a black male born today, one fact remains true: over the course of his lifetime, he has a one-third chance of spending time behind bars.26 For black females, the odds are not much better.27 They are more than twice as likely to spend time in prison as white or Hispanic women.28

The devastating effect of the criminal justice system on black communities today is undeniable. From the War on Drugs, to racial profiling, down the line to the sentence of death, African Americans find themselves under siege—and increasingly so—by our system of criminal justice. McCleskey v. Kemp stands out as a decision that has erected a barrier to challenging the discriminatory policies and practices that African Americans encounter in their contacts with the law. The injustices that this barrier conceals are ones that we all need to note.

Statistics alone should lead one to question the role of race in the application of the death penalty, the most final of punishments. African Americans are thirteen percent of the population and forty- one percent of the nation’s 3,344 prisoners on death row.29 Since the death penalty was reinstated in 1976, thirty-four percent of those executed have been African-American.30 That represents 362

25. Martin Luther King, Jr., I Have a Dream: Writings and Speeches that

Changed the World 104 (James Washington ed., HarperCollins 1992). 26. Bureau of Justice, Special Report, Prevalence of Imprisonment in the

U.S. Population, 1974–2001 1 (2003), available at http://www.ojp.usdoj.gov/bjs/ pub/pdf/piusp01.pdf.

27. Id. at 1. 28. Id. 29. Criminal Justice Project of the NAACP Legal Defense and Educational

Fund, Death Row U.S.A. 3 (2006), available at http://www.naacpldf.org/content/ pdf/pubs/drusa/DRUSA_Fall_2006.pdf.

30. Id. at 7.

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individuals who have had their lives taken at the hands of the state. Disturbingly, although blacks and whites are murder victims in nearly equal numbers, seventy-nine percent of people executed since the death penalty was reinstated have been executed for the murders of white victims.31

David Baldus showed us the effect of a victim’s race at the time of McCleskey, and study after study has confirmed the effect of a victim’s whiteness on whether or not the defendant will receive the death penalty.32 In 2003 a study ordered by Maryland Governor Parris Glendening concluded that defendants accused of killing white victims were significantly more likely to face the death penalty than those accused of killing black victims.33 The effect was further exacerbated when the defendant was black.34 The study also detected racial bias in prosecutors’ decisions to seek the death penalty in a given case.35 Similar studies, done in North Carolina and New Jersey and released in 2001, also found that the race of a victim had a significant effect on whether a defendant would be sentenced to death.36 A death penalty study in Pennsylvania, released in 1998, found that controlling for case differences, black offenders in Philadelphia were 1.6 times more likely to receive the death penalty than other defendants.37 The racial combination most likely to result in a death sentence was a black defendant with a non-black victim.38

31. Id. at 5. 32. David C. Baldus et al., Racial Discrimination and the Death Penalty in

the Post-Furman Era: An Empirical and Legal Overview, with Recent Findings from Philadelphia, 83 Cornell L. Rev. 1638, 1714 (1998); see also Capital Punishment Project, ACLU, The Persistent Problem of Racial Disparities in The Federal Death Penalty (2007), available at http://www.aclu.org/pdfs/capital/ racial_disparities_federal_deathpen.pdf; U.S. Dep’t of Justice Survey of the Federal Death Penalty System (2001) available at http://www.usdoj.gov/dag/ pubdoc/dpsurvey.html.

33. Raymond Paternoster et al., An Empirical Analysis of Maryland's Death Sentencing System with Respect to the Influence of Race and Legal Jurisdiction 22 (2003), available at http://www.thejusticeproject.org/press/reports/ an-empirical-analysis-of-with.html.

34. Id. at 24. 35. Id. at 34–35. 36. Issac Unah & John Charles Boger, Race and the Death Penalty in

North Carolina 22 (2001), available at http://www.common-sense.org/pdfs/NC DeathPenaltyReport2001.pdf.

37. Baldus, supra note 32, at 1726. 38. Id. at 1696.

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History sadly teaches us not to be surprised by these statistics. The link between extralegal violence against African Americans for offenses against white society in the form of lynching and the modern death penalty is one that is often anecdotally explored. By the way, I encourage all of you to read a new book by Sherilyn Ifill, one of LDF’s former lawyers who is now a law professor, called “On the Courthouse Lawn.”39 It is about lynching, and it’s a powerful, powerful book that really deserves some attention, and that will get it. It’s getting it already. I could go on and on linking these statistics between the lynching era and the present day era. For example, between 1930 and 1967, 3,859 people were executed, fifty-four percent of whom were black.40 Mississippi, Georgia, Texas, Louisiana, and Alabama were leading lynching states.41 Not surprisingly, those are states where the death penalty is applied most disproportionately to African Americans.42

Adding to the effects of a victim’s race on death penalty outcomes are the defendant’s racial attributes. A 2005 study by professors and psychologists at Cornell, Stanford, UCLA, and Yale found that defendants perceived as having a more stereotypically black appearance—a broad nose, thick lips, dark skin—were more likely to receive the death penalty than defendants whose appearance was perceived as less stereotypically black.43 Of the population examined, twenty-four percent of those with a less stereotypically black appearance received the death penalty while fifty-eight percent of those perceived as the most stereotypically black were sentenced to death.44

These are the realities that matter. They matter in the hearts and minds of black Americans certainly, but they should matter to all of us concerned that race not dictate who lives and who dies. How

39. Id. 40. Furman v. Georgia, 408 U.S. 364 (1972). 41. See generally id. at 238 (discussing these states and prevalence of the

death penalty). 42. Criminal Justice Project of the NAACP Legal Defense and Education

Fund, Death Row U.S.A. 8–9 (2006), available at http://www.naacpldf.org/ content/pdf/pubs/drusa/DRUSA_Fall_2006.pdf.

43. Jennifer L. Eberhardt, et al., Looking Deathworthy: Perceived Stereotypicality of Black Defendants Predicts Capital-Sentencing Outcomes, 17 Psychol. Sci. 383, 383 (2006).

44. Id. at 384.

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can we look upon those numbers and decide that they do not matter? In my mind, the answer is simple: we cannot.

When I think about black children who are born today, I think about how their lives will be lived out and affected by the War on Drugs. Since its early days in the 1980s and 1990s, federal, state, and local government have employed the war on drugs to reduce the use and sale of illegal narcotics.45 This is a war that is waged with military-style tactics against citizens and communities, and although statistics show that drugs and sales are colorblind in this country, this war has been heavily focused upon the African-American community. And that’s why the kind of law enforcement relationships that affect African-American communities, in particular, are not replicated in other communities in this country, even though drug use is ubiquitous.

Due in no small part to the war on drugs, the United States now has the highest rate of incarceration in the world.46 As of December 2005, there were over 2.2 million prisoners in federal or state prisons or local jails.47 One out of every 136 U.S. residents was being held in prison or jail.48 Moreover, 8.1% of black males between twenty-five and twenty-nine were incarcerated, compared to 1% of white men in the same age group.49 The effect of the war on drugs on incarceration rates cannot be overstated. At the end of 2003, twenty percent of inmates held in state prisons were being held for drug offenses.50 Despite comprising only thirteen percent of the nation’s drug users, fifty-three percent of those persons were African- American.51 In the same year, nearly 87,000 people were being held in federal prisons for drug offenses.52 As of 1997, forty percent of

45. See generally Lester Grinspoon & James B. Bakalar, The War on

Drugs—A Peace Proposal, 330 New Eng. J. Med. 357 (1994) (arguing that the war on drugs is inefficient, unfair, and a misappropriation of resources which could better serve the public in other sectors).

46. Marc Mauer, Comparative International Rates of Incarceration: An Examination of Causes and Trends 2 (2003), available at www.soros.org/ initiatives/justice/articles_publications/publications/intl_incarceration_20030620/i ntl_rates.pdf; see also Bureau of Justice Statistics, Prisoners in 2005 1 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/p05.pdf.

47. Bureau of Justice Statistics, supra note 46, at 1. 48. Id. at 2. 49. Id. at 8. 50. Id. at 9. 51. Id. 52. Id. at 10.

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those being held in federal prisons on drug offenses were African Americans.53

The crack cocaine sentencing disparity is only one example of how the war on drugs has led to disparate incarceration rates. As of 1997, eighty-six percent of all offenders sentenced in federal court on crack offenses were African American.54 One would think that white Americans don’t use or didn’t use crack cocaine. Go back and look at the Bureau of Justice web statistics—they put the lie to that assumption. More than sixty-six percent of crack users were white or Hispanic,55 yet more than eighty percent of defendants sentenced for crack offenses are African- American.56

When you think about African Americans incarcerated for drug offenses, racial profiling cannot be left out of the equation. Such profiling has been a primary tool in the war on drugs,57 based on the flawed assumption that race is a proxy for criminality. The war on drugs and racial profiling together constitute a double blow to African Americans. As a Justice Department study found, “disproportionate minority arrests for drug possession and distribution have fueled perceptions by police and others that race is an appropriate factor in the decision to stop or search an individual.”58 Now, that was the Justice Department that said that, not the Legal Defense Fund or any other organization in this room. So, even the Justice Department knows that our system is flawed along lines of race.

The statistics involving profiling practices are now familiar. Approximately forty percent of stops on the New Jersey Turnpike and seventy-seven percent of those searched are African-American.59

53. Bureau of Justice Statistics, Federal Drug Offenders, 1999 with Trends 1984–99 11 (2001), available at www.ojp.usdoj.gov/bjs/pub/pdf/fdo99.pdf.

54. Id. 55. Substance Abuse and Mental Health Services Administration, 2003

National Survey on Drug Use & Health: Detailed Tables (2005), available at http://www.oas.samhsa.gov/Nhsda/2k3tabs/Sect1peTabs1to66.htm#tab1.43a.

56. Bureau of Justice Statistics, supra note 53, at 11. 57. See generally Human Rights Watch, Punishment and Prejudice: Racial

Disparities in the War on Drugs 12 (2000), available at http://www.hrw.org/ reports/2000/usa/.

58. Deborah Ramirez et al., A Resource Guide on Racial Profiling Data Collection Systems: Promising Practices and Lessons Learned 11 (2000), available at http://www.ncjrs.gov/pdffiles1/bja/184768.pdf.

59. David Rudovsky, Law Enforcement by Stereotype and Serendipity, Racial Profiling and Stops and Searches Without Cause, 3 U. Pa. J. Const. L.

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We’ve made some progress, and we continue to make progress. Some states have passed laws against profiling.60 But, as is the case with the McCleskey decision, which is the backdrop for our gathering today, the Supreme Court has strung up major legal hurdles to combating these issues. In Whren v. United States, the Supreme Court held that, as long as a police officer had a lawful justification for a traffic stop, the fact that he might have an ulterior motive and that the stop might be a pretext for discrimination is simply irrelevant.61 Once again, the Constitution tolerates discrimination.

These are only a few of the issues with which we are struggling. Bias in jury selection, prosecutorial decisions about whom to charge and what to charge them with, the newly emerging tools of database gathering with respect to gangs, and the ongoing effects of minimum sentencing laws, all have damaging effects on the lives and fates of African Americans.

And of course, incarceration is not the end of the tale. According to a report by the Sentencing Project, 1.4 million black men, a full thirteen percent of the male black population, are disenfranchised.62 Given the rates of incarceration today, in the next generation, three in ten black men—three in ten of the black males born today—can expect to at some point lose their right to vote.63 In states that permanently disenfranchise ex-offenders, forty percent of black men may permanently lose their right to vote.64 These laws include many persons on probation and parole, a population that is also disproportionately African-American—as of 2005, thirty percent of probationers and forty percent of those on parole were black.65

296, 300 (2001) (citing State v. Soto, 734 A.2d 350, 360 (N.J. Super. Ct. Law Div. 1996)).

60. National Conference for Community and Justice, Racial and Ethnic Profiling 2, available at http://www.nccj.org/documents/pp_racial_ethnic_and_ religious_profiling.pdf (last visited Oct. 10, 2007) (discussing how over fifteen states have enacted laws to combat racial profiling including requiring law enforcement agencies to develop policies and collect information regarding the race and gender of the drivers in stops they make).

61. Whren v. United States, 517 U.S. 806 (1996). 62. The Sentencing Project, Felony Disenfranchisement Laws in the

United States 1 (Apr. 2007), available at http://sentencingproject.org/Admin/ Documents/publications/fd_bs_fdlawsinus.pdf.

63. Id. 64. Id. 65. Bureau of Justice Statistics, supra note 46, at 6–9.

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Let us return to McCleskey for a moment. The words that strike most deeply are those of Justice Brennan’s powerful dissent. He wrote in words that still ring tragically true today:

At some point in this case, Warren McCleskey doubtless asked his lawyer whether a jury was likely to sentence him to die. A candid reply to this question would have been disturbing. First, counsel would have to tell McCleskey that few of the details of the crime or of McCleskey’s past criminal conduct were more important than the fact that his victim was white. Furthermore, counsel would feel bound to tell McCleskey that defendants charged with killing white victims in Georgia are 4.3 times as likely to be sentenced to death as defendants charged with killing blacks. In addition, frankness would compel the disclosure that it was more likely than not that the race of McCleskey’s victim would determine whether he received a death sentence . . . . Finally, the assessment would not be complete without the information that cases involving black defendants and white victims are more likely to result in a death sentence than cases featuring any other racial combination of defendant and victim. The story could be told in a variety of ways, but McCleskey could not fail to grasp its essential narrative line: there was a significant chance that race would play a prominent role in determining if he lived or died.66

Well, it did. And he died. In my mind, it is the hope that we can move beyond this reality for which we today are gathered. It is the hope that, at some point, the narrative transmitted by the McCleskey decision—that race plays a role in who lives or dies, who is free, who is jailed, who is stopped, arrested, prosecuted, whose name appears in what database—will one day no longer be true. It is, deeply, our hope that no mother will look at her child at the moment of birth and think that there is a thirty percent chance that she will see that child go to jail.

Although the stories our criminal justice system offers often are not happy ones, for me this is not a day of despair. Rather, it is a time to look forward to what we, as civil rights and human rights activists, lawyers, and communities can do to change the lives of black Americans, brown Americans, indeed all Americans. That you have all gathered with us, put your minds and your energies to

66. McCleskey v. Kemp, 481 U.S. 279, 321 (1987) (Brennan, J., dissenting) (internal quotations and citations omitted).

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thinking beyond what the Supreme Court has said, itself tells me that hope is not lost. Although we are thick in the battle for black children’s lives and for the fate of justice in this country, it is a battle in which we can, in which we will—indeed, a battle in which we must—prevail.

I have come to deeply believe, personally, that hope is not something that is fortuitous. It is not serendipitous. Hope really means looking into the jaws of despair, recognizing that there’s reason to be cynical and yet refusing to give into it. It is a choice; it is not serendipitous. Choose hope and then work to make hope reality. Thank you.