Prof. Normax State Sentencing Guidelines Presentation

In March 1931, nine African American teenage boys were accused of raping two white girls on a slow-moving freight train traveling through Alabama. They were arrested and taken to Scottsboro, Alabama, where they were indicted for rape, a capital offense. One week later, the first case was called for trial. When the defendant appeared without counsel, the judge hearing the case simply appointed all members of the local bar to represent him and his co-defendants. An out-of-state lawyer also volunteered to assist in the defendants’ defense, but the judge appointed no counsel of record.

The nine defendants were tried and convicted, and eight were sentenced to death. They appealed their convictions, arguing that their right to counsel had been denied. In 1932 the United States Supreme Court issued its ruling in the case of Powell v. Alabama,2 one of the most famous Supreme Court cases in U.S. history. The Court reversed the defendants’ convictions and ruled that due process of law required the appointment of counsel for young, inexperienced, illiterate, and indigent defendants in capital cases.

The Supreme Court’s ruling in Powell provided the so-called Scottsboro Boys with only a short reprieve. They were quickly retried, reconvicted, and resentenced to death, despite the fact that one of the alleged victims had recanted and questions were raised about the credibility of the other victim’s testimony. Once again, the defendants appealed their convictions, this time contending that their right to a fair trial by an impartial jury had been denied. All of the defendants had been tried by all-white juries. They argued that the jury selection procedures used in Alabama were racially biased. Although African Americans who were registered to vote were eligible for jury service, they were excluded in practice because state officials refused to place their names on the lists from which jurors were chosen. In 1935, the Supreme Court, noting that the exclusion of all African Americans from jury service deprived African American defendants of their right to the equal protection of the laws guaranteed by the Fourteenth Amendment, again reversed the convictions.3

The Supreme Court’s decision was harshly criticized in the South. The Charleston News and Courier, for example, stated that racially mixed juries were “out of the question” and asserted that the Court’s decision “can and will be evaded.”4 Southern sentiment also strongly favored yet another round of trials. Thomas Knight, Jr., the attorney who prosecuted the Scottsboro cases the second time, noted that “Approximately ninety jurors have been found saying the defendants were guilty of the offense with which they are charged and for which the penalty is death.” Knight reported that he had been “retained by the State to prosecute the cases and [would] prosecute the same to their conclusion.”5

Less than eight months after the Supreme Court’s decision, a grand jury composed of 13 whites and 1 African American returned new indictments against the nine defendants. Haywood Patterson, the first defendant to be retried, again faced an all-white jury. Although there were 12 African Americans among the 100 potential jurors, 7 of the 12 asked to be excused and the prosecutor used his peremptory challenges to remove the remaining 5 African Americans. In his closing argument, the prosecutor also implied that an acquittal would force the women of Alabama “to buckle six-shooters about their middles” in order to protect their “sacred secret parts.” He pleaded with the jurors to “Get it done quick and protect the fair womanhood of this great State.”6

Patterson was convicted and sentenced to 75 years in prison. The sentence, although harsh, represented “a victory of sorts.”7 As the Birmingham Age-Herald noted, the decision “represents probably the first time in the history of the South that a Negro has been convicted of a charge of rape upon a white woman and has been given less than a death sentence.”8

Three of the remaining eight defendants were tried and convicted in July 1937. One of the three, Clarence Norris, was sentenced to death; the other two received prison sentences of 75 and 99 years. Shortly thereafter, Ozie Powell pled guilty to assaulting an officer after the state agreed to dismiss the rape charge. That same day, in an unexpected and controversial move, the state dropped all charges against the remaining four defendants. In a prepared statement, Attorney General Thomas Lawson asserted that the state was “convinced beyond any question of doubt ... that the defendants that have been tried are guilty.” However, “after careful consideration of all the testimony, every lawyer connected with the prosecution is convinced that the defendants Willie Roberson and Olen Montgomery are not guilty.” Regarding the remaining two defendants, who were 12 and 13 years old when the crime occurred, Dawson stated that “the ends of justice would be met at this time by releasing these two juveniles on condition that they leave the State, never to return.”9

The state’s decision to drop charges against four of the nine defendants led editorial writers for newspapers throughout the United States to call for the immediate release of the defendants who previously had been convicted. The Richmond Times-Dispatch stated that the state’s action “serves as a virtual clincher to the argument that all nine of the Negroes are innocent,” and the New York Times called on the state to “do more complete justice later on.”10

Charles Norris’s death sentence was commuted to life imprisonment in 1938, but the Alabama Pardon and Parole Board repeatedly denied the five defendants’ requests for parole. One of the defendants finally was granted parole in 1943, and by 1950 all of them had gained their freedom. Collectively, the nine Scottsboro Boys served 104 years in prison for a crime that many believe was “almost certainly, a hoax.”11

The infamous Scottsboro Case illustrates overt discrimination directed against African American criminal defendants. However, those events took place in the 1930s and 1940s, and much has changed since then. Legislative reforms and Supreme Court decisions protecting the rights of criminal defendants, coupled with changes in attitudes, have made it less likely that criminal justice officials will treat defendants of different races differently. Racial minorities are no longer routinely denied bail and then tried by all-white juries without attorneys to assist them in their defense. They are no longer brought into court in chains and shackles. They no longer receive “justice” at the hands of white lynch mobs.

Despite these reforms, inequities persist. Racial minorities, and particularly those suspected of crimes against whites, remain the victims of unequal justice. In 1983, for example, Lenell Geter, an African American man, was charged with the armed robbery of a Kentucky Fried Chicken restaurant in Balch Springs, Texas. Despite the absence of any physical evidence to connect him to the crime and despite the prosecution’s failure to establish his motive for the crime, Geter was convicted by an all-white jury and sentenced to life in prison.

Geter’s conviction was particularly surprising given the fact that he had an ironclad alibi. Nine of his coworkers, all of whom were white, testified that Geter was at work on the day of the crime. His supervisor testified that there was no way Geter could have made the 50-mile trip from work to the site of the crime by 3:20 P.M., the time the robbery occurred. According to one coworker, “Unless old Captain Kirk dematerialized him and beamed him over there, he couldn’t have made it back by then. He was here at work. There’s no question in my mind—none at all.”12

Prosecutors in the county where Geter was tried denied that race played a role in Geter’s conviction. As one of them put it, “To say this is a conviction based on race is as far out in left field as you can get.”13 Geter’s coworkers disagreed; they argued that Geter and his codefendant (who also was African American) would not have been charged or convicted if they had been white.

Events that occurred following the trial suggest that Geter’s coworkers were right. Another man arrested for a series of armed robberies eventually was linked to the robbery of the Kentucky Fried Chicken restaurant. Geter’s conviction and sentence were overturned after the employees who originally identified Geter picked this suspect out of a lineup. Geter served more than a year in prison for a crime he did not commit.

Like Lenell Geter, James Newsome, an African American sentenced to life in prison for the armed robbery and murder of a white man, also had an alibi. At his trial for the 1979 murder of Mickey Cohen, the owner of Mickey’s Grocery Store in Chicago, Newsome’s girlfriend and her two sisters testified that he was with them at the time of the murder. The prosecutor trying the case argued that Newsome’s girlfriend, who was a convicted burglar, was not a credible witness. He also introduced the testimony of three eyewitnesses who identified News-ome as Cohen’s killer.14

Despite the fact that there was no physical evidence linking Newsome to the crime, and despite the fact that Newsome’s fingerprints were not found on the items in the store handled by the killer, the jury hearing the case found Newsome guilty. Although Cook County prosecutors had sought the death penalty, the jury recommended life in prison.

Newsome, who steadfastly maintained his innocence, spent the next 15 years appealing his conviction. With the help of Norval Morris, a University of Chicago Law School Professor, and two noted Chicago defense attorneys, Newsome was able to convince the Cook County Circuit Court to order that the fingerprints obtained from the crime scene be run through the police department’s computerized fingerprint database to see if they matched any of those on file. The tests revealed that the fingerprints matched those of Dennis Emerson, a 45-year-old Illinois death row inmate who, at the time of Cohen’s murder, was out on parole after serving 3 years for armed robbery.

Two weeks later, Newsome was released from prison. Shortly thereafter, Illinois governor Jim Edgar pardoned Newsome and ordered his criminal record expunged. Following his release, James Newsome, who spent 15 years in prison for a crime he did not commit, said, “I finally felt vindicated. I had defeated a criminal-justice giant. Fifteen years ago, they told me that I would never walk the streets again in my life. What did I do? I slayed a giant—a criminal justice giant.”15

Like Geter, Newsome contended that race played a role in his arrest and conviction. “In the most [racially] polarized city in the world,” Newsome stated, “racism was a factor. I was a suspect and I was convenient.”16

Race also played a role in the case of Clarence Brandley, an African American who in 1981 was sentenced to death for the rape and murder of Cheryl Dee Ferguson, a white student at a high school north of Houston where Brandley worked as a janitor. Brandley and a coworker found the body and were the initial suspects in the case. Brandley’s coworker, who was white, reported that during their interrogation one of the police officers stated, “One of you two is going to hang for this.” Then he turned to Brandley and said, “Since you’re the nigger, you’re elected.”17 The police investigating the case claimed that three hairs found on the victim implicated Brandley. Although the hairs were never forensically tested, the police claimed that they were identical “in all observable characteristics” to Brandley’s.

Brandley was indicted by an all-white grand jury and tried before an all-white jury, which hung 11-to-1 in favor of conviction. He was retried by a second all-white jury after the district attorney trying the case used his peremptory challenges to strike all of the prospective African American jurors. During his closing argument, the district attorney referred to Brandley as a “necrophiliac” and a “depraved sex maniac.” This time, the jurors found Brandley guilty and recommended a death sentence, which the judge imposed.

Brandley spent six years on death row before a Texas district court, citing misconduct on the part of police and prosecutors, threw out his conviction. The judge, who noted that there was strong evidence that the crime was committed by two white men, stated that “the color of Clarence Brandley’s skin was a substantial factor which pervaded all aspects of the State’s capital prosecution against him, and was an impermissible factor which significantly influenced the investigation, trial and post-trial proceedings of [Brandley’s] case.”18

These three recent cases, of course, do not prove that there is a pattern of systematic discrimination directed against racial minorities in courts throughout the United States. One might argue, in fact, that these three cases are simply exceptions to the general rule of impartiality. As we explained in Chapter 1, the validity of the discrimination thesis rests not on anecdotal evidence but on the results of empirical studies of criminal justice decision making.

As we explained in Chapter 3, racial minorities are at a disadvantage in court both because of their race and because they are more likely than whites to be poor. This “double jeopardy” makes it more difficult for minority defendants to obtain competent attorneys or secure release from jail prior to trial. This, in turn, hinders their defense and may increase the odds that they will be convicted and sentenced harshly. Given these consequences, decisions regarding provision of counsel and bail obviously are important.

The Sixth Amendment to the U.S. Constitution states, “In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.” Historically, this meant simply that if someone had an attorney, he could bring the attorney along to defend him. The problem, of course, was that this was of no help to the majority of defendants, and particularly minority defendants, who were too poor to hire their own attorneys.

The U.S. Supreme Court, recognizing that defendants could not obtain fair trials without the assistance of counsel, began to interpret the Sixth Amendment to require the appointment of counsel for indigent defendants. The process began in 1932, when the Court ruled in Powell v. Alabama19 that states must provide attorneys for indigent defendants charged with capital crimes (see the earlier discussion of the Scottsboro case). The Court’s decision in a 1938 case, Johnson v. Zerbst,20 required the appointment of counsel for all indigent defendants in federal criminal cases, but the requirement was not extended to the states until Gideon v. Wainwright21 was decided in 1963. In that 1963 decision, Justice Black’s majority opinion stated:

[R]eason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.... The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.

In subsequent decisions, the Court ruled that “no person may be imprisoned, for any offense, whether classified as petty, misdemeanor, or felony, unless he is represented by counsel,”22 and that the right to counsel is not limited to trial but applies to all “critical stages” in the criminal justice process.23 As a result of these rulings, most defendants must be provided with counsel from arrest and interrogation through sentencing and the appellate process. As illustrated in Box 5.1, the Supreme Court also has ruled that defendants are entitled to effective assistance of counsel.24

At the time the Gideon decision was handed down, 13 states had no statewide requirement for appointment of counsel except in capital cases.25 Other states relied on members of local bar associations to defend indigents, often on a pro bono basis. Following Gideon, it became obvious that other procedures would be required if all felony defendants were to be provided attorneys.

States moved quickly to implement the constitutional requirement articulated in Gideon, either by establishing public defender systems or by appropriating money for court-appointed attorneys. The number of public defender systems grew rapidly. In 1951 there were only 7 public defender organizations in the United States; in 1964 there were 136; by 1973 the total had increased to 573.26 A 1994 survey of indigent defense services among all U.S. prosecutorial districts found that 21 percent used a public defender program, 19 percent used an assigned counsel system, and 7 percent used a contract attorney system; the remaining districts (43 percent) reported that a combination of methods was used.27 A survey of inmates incarcerated in state and federal prisons in 1997 revealed that about 73 percent of the state inmates and 60 percent of the federal inmates were represented by a public defender or assigned counsel. This survey also revealed that African Americans and Hispanics were more likely than whites to be represented by a public defender or assigned counsel. Among state prison inmates, for example, 77 percent of the African Americans, 73 percent of the Hispanics, and 69 percent of the whites reported that they were represented by a publicly funded attorney.28

As a result of Supreme Court decisions expanding the right to counsel and the development of federal and state policies implementing these decisions, African Americans and other racial minorities are no longer routinely denied legal representation at trial or at any of the other critical stages in the process. Questions have been raised, however, about the quality of legal representation provided to indigent defendants by public defenders. An article in the Harvard Law Review, for example, claimed:

In 1984 the Supreme Court articulated constitutional standards for determining whether a defendant had ineffective assistance of counsel. The Court ruled, in the case of Strickland v. Washington (466 U.S. 668 [1984], at 687), that to establish ineffectiveness, a defendant must prove:

· First, “that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

· Second, “that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliance.”

The Court also stated that to establish ineffectiveness, a “defendant must show that counsel’s representation fell below an objective standard of reasonableness.” To establish prejudice, he or she “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”

The Court revisited this issue in 2000, ruling that Terry Williams had been denied effective assistance of counsel (Williams v. Taylor 529 U.S. 420 [2000]). Williams was convicted of robbery and murder and sentenced to death after a Virginia jury concluded that he had a high probability of future dangerousness.

At the sentencing hearing, Williams’s lawyer failed to introduce evidence that Williams was borderline mentally retarded and did not advance beyond sixth grade. He also failed to introduce the testimony of prison officials, who described Williams as among the inmates “least likely to act in a violent, dangerous, or provocative way.” Instead, Williams’s lawyer spent most of his time explaining that he realized it would be difficult for the jury to find a reason to spare Williams’s life. His comments included the following: “I will admit too that it is very difficult to ask you to show mercy to a man who maybe has not shown much mercy himself.... Admittedly, it is very difficult to ... ask that you give this man mercy when he has shown so little of it himself. But I would ask that you would.”

The Supreme Court ruled that Williams’s right to effective assistance of counsel had been violated. According to the Court, “there was a reasonable probability that the result of the sentencing proceeding would have been different if competent counsel had presented and explained the significance of all the available evidence.”

Nearly four decades after Gideon, the states have largely, and often outrageously, failed to meet the Court’s constitutional command. The widespread, lingering deficiencies in the quality of indigent counsel have led some to wonder whether this right, so fundamental to a fair and accurate adversarial criminal process, is unenforceable.29

A 2003 report on Mississippi’s indigent defense system reached a similar conclusion. The authors of the report, who noted that the system was “among the most poorly funded in the nation,” concluded that “in Mississippi justice is available only to those with the means to pay for it. And sadly, our country’s shameful history of racial discrimination is still readily apparent in the low quality representation provided to the State’s poor, predominately black defendants.”30

There is evidence suggesting that defendants share this view. In fact, one of the most oft-quoted statements about public defenders is the answer given by an unidentified prisoner in a Connecticut jail to the question of whether he had a lawyer when he went to court. “No,” he replied, “I had a public defender.”31 David Neubauer similarly notes that in prison “‘PD’ stands not for ‘public defender’ but for ‘prison deliverer.’”32 Some social scientists echo this negative assessment, charging that public defenders, as part of the courtroom workgroup, are more concerned with securing guilty pleas as efficiently and as expeditiously as possible than with aggressively defending their clients.33 As Ronald Weitzer34 notes (and as the examples in Box 5.2 confirm), “In many jurisdictions, public defenders and state-appointed attorneys are grossly underpaid, poorly trained, or simply lack the resources and time to prepare for a case—a pattern documented in cases ranging from the most minor to the most consequential, capital crimes.”

Other social scientists disagree. Citing studies showing that criminal defendants represented by public defenders do not fare worse than those represented by private attorneys,35 these researchers suggest that critics “have tended to underestimate the quality of defense provided by the public defender.”36 Paul B. Wice, in fact, concluded that the public defender is able to establish a working relationship with prosecutors and judges “in which the exchange of favors, so necessary to greasing the squeaky wheel of justice, can directly benefit the indigent defendant.”37 As part of the courtroom workgroup, in other words, public defenders are in a better position than private attorneys to negotiate favorable plea bargains and thus to mitigate punishment.

In “Judges and the Politics of Death,” Stephen Bright and Patrick Keenan claimed, “Judges often fail to enforce the most fundamental protection of an accused, the Sixth Amendment right to counsel, by assigning an inexperienced or incompetent lawyer to represent the accused.” In support of their assertion, they offered the following examples:

· A capital defendant who was represented by a lawyer who had passed the bar exam only six months earlier, had not taken any classes in criminal law or criminal procedure, and had never tried a jury or a felony trial.

· An attorney who described his client as “a little old nigger boy” during the penalty phase of the trial.

· A judge in Harris County, Texas, who responded to a capital defendant’s complaints about his attorney sleeping during the trial with the assertion that, “The Constitution doesn’t say the lawyer has to be awake.”

· A Florida attorney who stated during the penalty phase of a capital case, “Judge, I’m at a loss. I really don’t know what to do in this type of proceeding. If I’d been through one, I would, but I’ve never handled one except this time.”

· A study of capital cases in Philadelphia that found that “even officials in charge of the system say they wouldn’t want to be represented in Traffic Court by some of the people appointed to defend poor people accused of murder.”

SOURCE: Stephen Bright and Patrick Keenan 1995, 800.

A 2000 report by the Bureau of Justice Statistics (BJS) revealed that case outcomes for state and federal defendants represented by public attorneys do not differ dramatically from those represented by private counsel.38 There were only very slight differences in the conviction rates of defendants represented by public and private attorneys but somewhat larger differences in the incarceration rates. At the federal level, 87.6 percent of the defendants represented by public attorneys were sentenced to prison, compared with 76.5 percent of the defendants with private attorneys. The authors of the report attributed this to the fact that public counsel represented a higher percentage of violent, drug, and public-order offenders, whereas private attorneys represented a higher percentage of white-collar defendants. Felony defendants in state courts also faced lower odds of incarceration if they were represented by private attorneys (53.9 percent) rather than public defenders (71.3 percent). In both state and federal court, on the other hand, defendants represented by private attorneys got longer sentences than those represented by public defenders. At the federal level, the mean sentences were 58 months (public attorneys) and 62 months (private attorneys); at the state level, they were 31.2 months (public attorneys) and 38.3 months (private attorneys).39

The data presented thus far do not address the question of racial discrimination in the provision of counsel. Although it is true that African American and Hispanic defendants are more likely than white defendants to be represented by public defenders, it does not necessarily follow from this that racial minorities will be treated more harshly than whites as their cases move through the criminal justice system. As we have noted, studies have not consistently shown that defendants represented by public defenders fare worse than defendants represented by private attorneys.

Most studies have not directly compared the treatment of African American, Hispanic, and white defendants represented by public defenders and private attorneys. It is possible that racial minorities represented by public defenders receive more punitive sentences than whites represented by public defenders, or that whites who hire their own attorneys receive more lenient sentences than racial minorities who hire their own attorneys. To put it another way, it is possible that hiring an attorney provides more benefits to whites than to racial minorities, and representation by a public defender has more negative consequences for racial minorities than for whites.

Malcolm D. Holmes, Harmon M. Hosch, Howard C. Daudistel, Dolores A. Perez, and Joseph B. Graves found evidence supporting these possibilities in one of the two Texas counties where they explored the interrelationships among race/ethnicity, legal resources, and case outcomes.40 The authors of this study found that in Bexar County (San Antonio) both African American and Hispanic defendants were significantly less likely than white defendants to be represented by a private attorney, even after such things as the seriousness of the crime, the defendant’s prior criminal record, and the defendant’s gender, age, and employment status were taken into account. The authors also found that defendants who retained a private attorney were more likely to be released prior to trial and received more lenient sentences than those represented by a public defender.41 In this particular jurisdiction, then, African American and Hispanic defendants were less likely than whites to be represented by a private attorney and, as a result, they received more punitive treatment than whites.

An examination of the sentences imposed on defendants convicted of felonies in three large urban jurisdictions in 1993 and 1994 produced somewhat different results. Cassia Spohn and Miriam DeLone42 compared the proportions of white, African American, and Hispanic defendants who were represented by a private attorney in Chicago, Miami, and Kansas City. As shown in Table 5.1, in all three jurisdictions whites were substantially more likely than African Americans to have private attorneys. In Chicago, 22.5 percent of white defendants, but only 6.9 percent of African American defendants, had a private attorney. In Miami, Hispanics also were less likely than whites to be represented by a private attorney.

aThere were only 47 Hispanic defendants in Kansas City.

Although the data presented in Table 5.1 reveal that smaller proportions of racial minorities than whites had access to the services of a private attorney, they do not provide evidence of differential treatment based on either type of attorney or race/ethnicity. In fact, when Spohn and DeLone examined the sentences imposed on racial minorities and whites in each jurisdiction, they found an interesting pattern of results. As shown in Figure 5.1, in Chicago and Kansas City only whites benefitted from having a private attorney. Among African Americans, the incarceration rates for defendants represented by private attorneys were only slightly lower than the rates for defendants represented by public defenders; among Hispanics in Chicago, the rate for defendants with private attorneys was actually somewhat higher than the rate for those with public defenders. In Miami, both whites and African Americans benefited from representation by private counsel, but Hispanics with private attorneys were sentenced to prison at a slightly higher rate than Hispanics represented by the public defender.

The incarceration rates displayed in Figure 5.1 do not take into account differences in the types of cases handled by private attorneys and public defenders. It is certainly possible that the incarceration rates for defendants represented by private attorneys generally are lower than the rates for defendants represented by public defenders, not because private attorneys are more experienced, more competent, and more zealous, but because the types of cases they handle are less serious or because the defendants they represent have less serious prior criminal records. If private attorneys, in other words, usually represent first offenders charged with relatively minor crimes and public defenders represent recidivists as well as first offenders and violent offenders as well as nonviolent offenders, we would expect the sentences imposed on defendants with private attorneys to be less severe than those imposed on defendants with public defenders, irrespective of the quality of representation provided by the attorney.

To test this possibility, Spohn and DeLone analyzed the relationship between race/ethnicity, type of attorney, and the likelihood of incarceration, controlling for several indicators of the seriousness of the crime and for the offender’s prior criminal record, age, gender, and employment status. They found that, with one exception, the type of attorney had no effect on the odds of incarceration for any racial/ethnic group in any jurisdiction. The only exception was in Miami, where African Americans represented by private attorneys faced significantly lower odds of incarceration than African Americans represented by public defenders.

These results cast doubt on assertions that racial minorities are disadvantaged by their lack of access to private counsel. At least in these three jurisdictions, public defenders do not appear to “provide a lower caliber defense than what private attorneys offer.”43

In summary, although it would be premature to conclude on the basis of research conducted to date either that decisions concerning the provision of counsel are racially neutral or that the consequences of these decisions for racial minorities are unimportant, significant changes have occurred since the 1930s. (See the “Focus on an Issue: Racial Minorities and the Legal Profession” box for a discussion of racial minorities and the legal profession.) It is clear that scenes from the infamous Scottsboro Case will not be replayed in the twenty-first century. The Supreme Court has consistently affirmed the importance of the right to counsel and has insisted that states provide attorneys to indigent criminal defendants at all critical stages in the criminal justice process. Although some critics have questioned the quality of legal services afforded indigent defendants, particularly in capital cases where the stakes are obviously very high, the findings of a number of methodologically sophisticated studies suggest that “indigent defenders get the job done and done well.”44 In short, it is no longer true that racial minorities “are without a voice”45 in courts throughout the United States.

Critics of the traditional money bail system, in which defendants either pay the amount set by the judge or pay a bail bondsman to post bond for them, argue that the system discriminates against poor defendants. They also charge that the system discriminates, either directly or indirectly, against racial minorities. Critics contend that historically African American and Hispanic defendants were more likely than white defendants to be detained prior to trial, either because the judge refused to set bail or because the judge set bail at an unaffordable level.46 “As a result,” according to one commentator, “the country’s jails are packed to overflowing with the nation’s poor—with red, brown, black, and yellow men and women showing up in disproportionate numbers.”47

Concerns about the rights of poor defendants and about the consequences of detention prior to trial led to the first bail reform movement, which emerged in the 1960s and emphasized reducing pretrial detention. Those who lobbied for reform argued that the purpose of bail was to ensure the defendant’s appearance in court and that bail therefore should not exceed the amount necessary to guarantee that the defendant would show up for all court proceedings. Proponents of this view asserted that whether a defendant was released or detained prior to trial should not depend on his or her economic status or race. They also cited research demonstrating that the type and amount of bail imposed on the defendant and the time spent by the defendant in pretrial detention affected the likelihood of a guilty plea, the likelihood of conviction at trial, and the severity of the sentence.48

In the early 1930s, one of the defendants in the Scottsboro case described the courtroom where he was convicted and sentenced to death as “one big smiling white face” (Carter 1969, 302). With the exception of the defendants themselves, no racial minorities were present in the courtroom.

Although the situation obviously has changed since then, racial minorities still represent a very small proportion of the lawyers and judges in the United States. Among those enrolled in law schools in 2003, only 20.6 percent were African American, Hispanic, Asian, or Native American.49 In fact, a report on the Columbia Law School’s website noted that although the number of first-year law students grew by nearly 3,000 from 1993 to 2008, the proportion of students who were African American declined by 7.5 percent and the percentage who were Hispanic declined by 11.7 percent.50 There is even less racial diversity among practicing attorneys. In 2007, almost 90 percent of all licensed lawyers were white and only 10 percent were racial minorities: 4.9 percent were African American, 2.6 percent were Asian, and 4.3 percent were Hispanic.51

Racial minorities also comprise a very small proportion of the judiciary. A 2004 report by the American Bar Association revealed that only 10.1 percent of all state court judges were racial minorities. Of these judges, 5.9 percent were African American, 2.8 percent were Hispanic, 1.1 percent were Asian, and only 13 (0.1 percent) were Native American.52 The situation is somewhat more positive at the federal level, where 11.3 of all district court judges and 6.9 percent of all court of appeals judges on the bench in 2000 were African American. Hispanics comprised 5.0 percent of the district court bench and 6.2 percent of the appellate court bench. There were, however, very few Asian Americans or Native Americans on the federal bench.53 Most of the racial minorities on the federal bench were men. Among district court judges, there were 54 African American men but only 16 African American women; there were 26 Hispanic men and 5 Hispanic women.54

The American Bar Association’s 2000 report on the progress of minorities in the legal profession concluded that minority entry into the profession had stalled and that the obstacles to minority entry into the profession had grown more formidable. The report noted that the campaign to end affirmative action in law school admissions, which had spread rapidly throughout the United States, threatened “to stifle minority entry and advancement in the profession for years to come.”55 According to the American Bar Association, “the legal profession—already one of the least integrated professions in the country—threatens to become even less representative of the citizens and society it serves.”56

Are African American Law Students Hurt or Helped by Affirmative Action?

In 1997 Barbara Grutter, a white resident of Michigan with a 3.8 undergraduate GPA and a 161 LSAT score, was denied admission to the University of Michigan Law School. (See “In the Courts: Grutter v. Bollinger” for a more detailed discussion of this case.) She sued, claiming that she was rejected because the law school used race as a “predominant factor” and gave preference to applicants from certain minority groups. She argued that doing so violated the equal protection clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964. In 2003 the United States Supreme Court ruled that “the law school’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause or Title VI” (Grutter v. Bollinger, 288 F.3d 732 [2003]).

One year later, Richard Sander, a law professor at the University of California Los Angeles, argued in the Stanford Law Review that affirmative action policies hurt, not help, African American law students.57 Sander contended that the African American students who get preferential treatment as a result of affirmative action enter law school with weaker grades and lower LSAT scores—the two best predictors of law school success—than white students. Noting that 43 percent of the African American students who entered law school in the fall of 1991 either did not graduate or did not pass the bar exam, Sander asserted that affirmative action sets African American students up for failure by placing them in schools where they cannot compete academically. He also predicted that “the number of black lawyers produced by American law schools each year and subsequently passing the bar would probably increase if those schools collectively stopped using racial preferences.”58

Sander’s methods and conclusions were called into question by social scientists and legal scholars. The harshest criticism came from David L. Chambers, Timothy T. Clydesdale, William C. Kidder, and Richard O. Lempert, who argued in the Stanford Law Review that Sander’s conclusions were “simple, neat, and wrong.”59 They asserted that ending affirmative action would lead, not to an increase in the number of African American lawyers, as Sander had predicted, but to a 30 percent to 40 percent decline in the number of African Americans entering the legal profession.60 Other critics stated that even if Sander’sfindings were correct, his study failed to take into consideration the academic benefits of diversity, for which “there is universal celebration” on college campuses.61

The Perceptions of African American and White Lawyers: Divided Justice?

A 1998 survey of African American and white lawyers commissioned by the ABA Journal and the National Bar Association Magazine revealed stark racial differences in perceptions of the justice system.62 When asked about the amount of racial bias that currently exists in the justice system, more than half of the African American lawyers, but only 6.5 percent of the white lawyers, answered “very much.” In fact, 29.6 percent of the white lawyers stated that they believed there was “very little” racial bias in the justice system.

Responses to other questions also varied by race:

· How does the amount of racial bias in the justice system compare with other segments of society?

· Have you witnessed an example of racial bias in the justice system in the past three years?

· What is your assessment of the ability of the justice system to eliminate racial bias in the future?

· Should police be allowed to create profiles of likely drug dealers or other criminals as a way to combat crime?

· Should race be a factor in creating the profiles?

· Have you seen an attempt to skew a jury racially because of the race of the defendant?

· Are minority women lawyers treated less fairly than white women lawyers in hiring and promotion?

· As these results clearly suggest, African American lawyers are substantially more likely than white lawyers to believe that the justice system is racially biased. As the author of the study noted, “Though they have made the justice system their life’s work, many black lawyers believe the word ‘justice’ has a white spin that says ‘just us.’”63

In 1997 Barbara Grutter, a white resident of Michigan with a 3.8 undergraduate GPA and a 161 LSAT score, was denied admission to the University of Michigan Law School. She filed suit, arguing the law school’s admissions policies discriminated against her on the basis of race in violation of the Fourteenth Amendment and Title VI of the Civil Rights Acts of 1974.

The law school’s admission policy, which was designed to achieve a diverse student body, required officials to evaluate the candidate’s undergraduate GPA and LSAT score along with the quality of the undergraduate institution; the difficulty of the courses taken as an undergraduate; and the candidate’s personal statement, letters of recommendation, and essay describing how he or she “would contribute to law school life and diversity.” Although the policy did not define diversity solely in terms of race and ethnicity or restrict the types of diversity that would be given substantial weight in admissions decisions, it did state that the goal was to accept “a mix of students with varying backgrounds and experiences who will respect and learn from each other.”64 The policy stated explicitly that the law school was committed to “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like African Americans, Hispanics, and Native Americans, who without this commitment might not be represented in our student body in meaningful numbers.”65

Grutter claimed that she was not admitted to the University of Michigan Law School in large part because the school took the race/ethnicity of the applicant into account and, in doing so, gave African American and Hispanic applicants a significantly greater chance of admission than white students with similar credentials. She argued that the school did not have a “compelling interest” to justify the use of race as an admissions factor.

The United States Supreme Court did not agree with Grutter’s arguments. The court ruled that “The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause” or Title VI of the Civil Rights Act of 1964.66 The Supreme Court stated that student body diversity was, in fact, a compelling state interest “that can justify using race in university admissions.” The court acknowledged that it would be “patently unconstitutional” to enroll a certain number of minority students “simply to assure some specified percentage of a particular group,” but stated that this was not the case with respect to the law school’s admission policy. Rather, “the Law School defines its critical mass concept by reference to the substantial, important, and laudable educational benefits that diversity is designed to produce, including cross-racial understanding and the breaking down of racial stereotypes.”67

The Supreme Court also noted that the admissions plan was “narrowly tailored,” in that it considered each applicant’s race/ethnicity as only one factor among many. The court reiterated that although “universities cannot establish quotas for members of certain racial or ethnic groups or put them on separate admission tracks,” they can structure their admission policies to give serious consideration to all of the ways an applicant might contribute to a diverse educational environment.

Three years after the Supreme Court handed down its decision, Michigan voters enacted the Michigan Civil Rights Initiative (also known as Proposal 2), which added the following language to the Michigan Constitution:

The University of Michigan, Michigan State University, Wayne State University, and any other public college or university, community college, or school district shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.

In 2008 a federal district court judge ruled that the initiative did not violate the U.S. Constitution.68

Arguments such as these prompted state and federal reforms designed to reduce pretrial detention. Encouraged by the results of the Manhattan Bail Project, which found that the majority of defendants released on their own recognizance did appear for trial,69 local jurisdictions moved quickly to reduce reliance on money bail and to institute programs modeled after the Manhattan Bail Project. Many states revised their bail laws, and in 1966 Congress passed the Bail Reform Act, which proclaimed release on recognizance the presumptive bail decision in federal cases.

Then, as Samuel Walker noted, “the political winds shifted.”70 The rising crime rate of the 1970s generated a concern for crime control and led to a reassessment of bail policies. Critics challenged the traditional view that the only function of bail was to assure the defendant’s appearance in court. They argued that guaranteeing public safety was also a valid function of bail and that pretrial detention should be used to protect the community from “dangerous” offenders.

These arguments fueled the second bail reform movement, which emerged in the 1970s and emphasized preventive detention. Conservative legislators and policy makers lobbied for reforms allowing judges to consider “public safety” when making decisions concerning the type and amount of bail.71 By 1984, 34 states had enacted legislation giving judges the right to deny bail to defendants deemed dangerous.72 Also in 1984, Congress passed a law authorizing preventive detention of dangerous defendants in federal criminal cases.73

Proponents of bail reform argued that whether a defendant was released or detained prior to trial should not depend on his or her economic status or race. They argued that bail decisions should rest either on assessments of the likelihood that the defendant would appear in court or on predictions of the defendant’s dangerousness.

The problem, of course, is that there is no way to guarantee that judges will not take race into account in making these assessments and predictions. As Coramae Richey Mann asserted, even the seemingly objective criteria used in making these decisions “may still be discriminatory on the basis of economic status or skin color.”74 If judges stereotype African Americans and Hispanics as less reliable and more prone to violence than whites, they will be more inclined to detain people of color and release whites, irrespective of their more objective assessments of risk of flight or dangerousness.

Studies examining the effect of race on bail decisions have yielded contradictory findings. Some researchers conclude that judges’ bail decisions are based primarily on the seriousness of the offense and the defendant’s prior criminal record and ties to the community; race has no effect once these factors are taken into consideration.75 Other researchers contend that the defendant’s economic status, not race, determines the likelihood of pretrial release.76 If this is the case, one could argue that bail decision making reflects indirect racial discrimination because African American and Hispanic defendants are more likely than white defendants to be poor.

A number of studies document direct racial discrimination in bail decisions. A study by George S. Bridges of bail decision making in King County, Washington, for example, examined the effect of race/ethnicity on four bail outcomes: whether the defendant was released on his or her own recognizance; whether the court set monetary bail; the amount of bail required; and whether the defendant was held in custody pending trial.77 As shown in Table 5.2, he found that racial minorities were less likely than whites to be released on their own recognizance and were more likely than whites to have bail set. Racial minorities also were held in pretrial detention at higher rates than whites. The detention rate was 55 percent for Native Americans, 54 percent for Hispanics, 36 percent for African American, and 28 percent for whites. There were, however, no differences in the median amount of bail required.

SOURCE: George S. Bridges, A Study on Racial and Ethnic Disparities in Superior Court Bail and Pre-Trial Detention Practices in Washington (Olympia: Washington State Minority and Justice Commission, 1997), Table 1.

Bridges noted that, although “at face value these differences may seem alarming,”78 they might be the result of legitimate factors that criminal justice officials take into consideration when establishing the conditions of pretrial release: the defendant’s ties to the community, the perceived dangerousness of the defendant, and any previous history of the defendant’s failure to appear at court proceedings. When he controlled for these legally relevant variables and for the defendant’s age and gender, however, he found that the race effects did not disappear. Racial minorities and men were less likely than whites and women to be released on their own recognizance and more likely than whites and women to be required to pay bail as a condition of release. For both of these decisions, the prosecutor’s recommendation regarding the type and amount of bail was the strongest predictor of outcome. In contrast, race had no effect on the likelihood of pretrial detention once the bail conditions and the amount of bail set by the judge were taken into account.

Interviews with King County criminal justice officials revealed that most of them believed the racial differences in bail outcomes could be attributed to three factors: racial minorities’ lack of resources and consequent inability to retain a private attorney; the tendency of judges to follow the recommendations of prosecutors; and cultural differences and language barriers that made it difficult to contact the defendant’s references or verify information provided by the defendant. Because racial minorities were more likely than whites to be poor, they were more likely to be represented by public defenders with large caseloads and limited time to prepare for bail hearings. Resource constraints similarly limited the amount of time that judges and pretrial investigators were able to devote to bail decisions, which led to reliance on the recommendations proffered by the prosecutor. Although Bridges stressed that his study produced no evidence “that disparities are the product of overt, prejudicial acts by court officials,” he nonetheless concluded that “race and ethnicity matter in the disposition of criminal cases.”79 He added that this “is a serious concern for the courts in Washington” because it “implies that, despite the efforts of judges and others dedicated to fairness in the administration of justice, justice is not administered fairly.”80

Other evidence of direct racial discrimination is found in an analysis of pretrial release outcomes for felony defendants in the nation’s 75 largest counties during the 1990s.81 As shown in Figure 5.2, Stephen Demuth and Darrell Steffensmeier found that African Americans and Hispanics were more likely than whites to be detained in jail prior to trial. Among female defendants, the detention rates were 23.5 percent (whites), 28.4 percent (African Americans), and 34.7 percent (Hispanics). Among males, the rates were 33.1 percent (whites), 44.8 percent (African Americans), and 50.5 percent (Hispanics). The pretrial detention rate for Hispanic males, in other words, was more than twice the rate for white females.

SOURCE: Stephen Demuth and Darrell Steffensmeier, “The Impact of Gender and Race-Ethnicity in the Pretrial Release Process,” Social Problems 51 (2004), pp. 222–242.

As was the case with the Washington State study, these differences did not disappear when the authors controlled for the seriousness of the charges against the defendant, the number of charges the defendant was facing, whether the defendant previously had failed to appear for a court proceeding, and the defendant’s prior record and age. Demuth and Steffensmeier found that males were more likely than females and that African Americans and Hispanics were more likely than whites to be detained in jail prior to trial. They also found that white females faced a significantly smaller likelihood of pretrial detention than any of the other groups, particularly Hispanic males and African American males.82

Findings from this study also provided some clues as to the reasons why defendants were held in jail prior to trial. For African Americans, the increased likelihood of detention was because they were almost two times more likely than whites to be held on bail; African Americans, in other words, were less likely than whites to be able to pay bail and secure their release. For Hispanics, however, the increased likelihood of detention reflected not only their inability to pay bail but also the fact that they were more likely than whites to have to pay bail for release and the amount they were required to pay was higher than the amount that similarly situated whites were required to pay.83 The authors also found that both female and male white defendants were more likely than their racial/ethnic counterparts to be released prior to trial and that this was largely because of their greater ability to make bail. As they noted, “white defendants of both sexes apparently have greater financial capital or resources either in terms of their personal bankroll/resources, their access to family or social networks willing to post bail, or their greater access to bail bondsmen for purposes of making bail.”84

There also is evidence that defendant race interacts with other variables related to bail severity. Margaret Farnworth and Patrick Horan,85 for example, found that the amount of bail imposed on white defendants who retained private attorneys was less than the amount imposed on African American defendants who retained private attorneys. Theodore G. Chiricos and William D. Bales similarly found that the likelihood of pretrial detention was greatest for African American defendants who were unemployed.86

Concerns about discrimination in bail decision making focus on two facts: African American and Hispanic defendants who are presumed to be innocent are jailed prior to trial and those who are detained prior to trial are more likely to be convicted and receive harsher sentences than those who are released pending trial. These concerns focus, in other words, on the possibility that discrimination in bail decision making has “spillover” effects on other case processing decisions.

An analysis of pretrial release of felony defendants by the BJS attests to the validity of these concerns.87 Using data from 1994 to 2004, the BJS compared the conviction rates for released and detained defendants in the 75 largest counties in the United States. They found that 78 percent of those who were detained prior to trial, but only 60 percent of those who were released, were convicted. Felony defendants who were released also were less likely than those who were detained to be convicted of a felony: the rates were 46 percent for those who were released but 69 percent for those who were detained.

Although these data suggest that pretrial release does have important spillover effects on case outcomes, the higher conviction and imprisonment rates for defendants who were detained pending trial could result from the fact that defendants who are held in jail prior to trial tend to be charged with more serious crimes, have more serious prior criminal histories, and have a past history of nonappearance at court proceedings. A BJS study of felony defendants processed in state courts in 2006, for example, found that defendants charged with murder had the lowest release rate and that defendants with more serious prior records or a history of nonappearance were more likely to be detained prior to trial.88 Given these findings, it is possible that the relationship between pretrial status and case outcomes would disappear once controls for case seriousness and prior criminal record were taken into consideration.

Data collected for a study of sentencing outcomes in Chicago, Miami, and Kansas City during 1993 and 1994 were used to explore this possibility.89 Spohn and DeLone found that the offender’s pretrial status was a strong predictor of the likelihood of imprisonment, even after other relevant legal and extralegal variables were taken into account. In all three cities, offenders who were released prior to trial faced substantially lower odds of a prison sentence than did offenders who were detained pending trial. Further analysis of sentences imposed by judges in Chicago and Kansas City revealed that pretrial detention had a similar effect on incarceration for each racial/ethnic group and for males and females.90 As shown in Table 5.3, among both males and females, African American, Hispanic, and white defendants who were detained prior to trial faced substantially greater odds of incarceration than African American, Hispanic, and white defendants who were released pending trial. In Chicago, the highest incarceration rates were found for African American (73 percent), Hispanic (72 percent), and white (63 percent) males who were detained prior to trial; the lowest rates for were found for white (7 percent), African American (11 percent), and Hispanic (11 percent) females who were released pending trial.

The results of this study suggest that defendants who were detained prior to trial received more punitive sentences than those who were released and that the highest incarceration rates were for African Americans and Hispanics who were detained prior to trial. In Chicago this “detention penalty” is compounded by the fact that African Americans were significantly more likely than whites to be detained prior to trial. Because they were detained more often than whites in the first place, African American defendants were more likely than whites to suffer both the pains of imprisonment prior to trial and the consequences of pretrial detention at sentencing.

A study of pretrial detention and case outcomes in three U.S. district courts found a similar pattern of results.91 Spohn compared pretrial detention rates and sentences for African American and white offenders who were convicted of drug trafficking offenses in the Southern District of Iowa, the District of Minnesota, and the District of Nebraska. She found that 67.7 percent of the African American offenders but only 43.3 percent of the white offenders were held in custody until their sentencing hearing. These differences did not disappear when she controlled for offender characteristics, including measures of the offender’s dangerousness and community ties, access to financial resources, the offender’s criminal history, and the seriousness of the crime. Even after these legally relevant predictors of pretrial detention were taken into consideration, African Americans faced higher odds of pretrial detention than did whites.92 Spohn also found that the likelihood of pretrial custody was substantially higher for African American male offenders than for other offenders. The odds of pretrial detention for African American males were twice those for white males, and the differences between African American males and either African American females or white females were even larger. In fact, African American males were 3.7 times more likely than white females and 3 times more likely than African American females to be held in custody before trial. There also were large differences between white females and white males, but the difference between white females and African American females was not statistically significant. Thus, African American males were treated more harshly than all other offenders, but white females were not treated any differently than African American females.93

To determine whether the race of the offender had indirect and/or cumulative effects on sentence severity through its effect on pretrial detention, Spohn estimated a model of sentence length, controlling for the offender’s pretrial status and for the offender and case characteristics identified by prior research as predictors of sentences imposed under the federal sentencing guidelines. Her analysis revealed that offenders who were in custody at the time of the sentence hearing received sentences that averaged almost 8 months (b = 7.95) longer than those imposed on offenders who were not detained before the hearing.94

Spohn speculated that the pattern of results she uncovered might reflect judges of the federal bail statute, which allows them to take the offender’s dangerousness into consideration when deciding between pretrial release and detention. As she noted,

If, as prior research has shown, judges stereotype black drug traffickers and male drug traffickers as more dangerous and threatening than whites or females engaged in drug trafficking, their interpretation of the legally relevant criteria may lead to higher rates of pretrial detention for black offenders and for male offenders.95

Although the findings are somewhat contradictory, it thus appears that the reforms instituted since the 1960s have not produced racial equality in bail decision making. It is certainly true that racial minorities are no longer routinely jailed prior to trial because of judicial stereotypes of dangerousness or because they are too poor to obtain their release. Nevertheless, there is evidence that judges in some jurisdictions continue to take race into account in deciding on the type and amount of bail. There also is evidence that race interacts with factors such as prior record or employment status to produce higher pretrial detention rates for African American defendants than for white defendants. Given the consequences of pretrial detention, these findings are an obvious cause for concern.

Regrettably, the evidence is clear that prosecutorial discretion is systematically exercised to the disadvantage of black and Hispanic Americans. Prosecutors are not, by and large, bigoted. But as with police activity, prosecutorial judgment is shaped by a set of self-perpetuating racial assumptions.96

Thus far we have examined criminal justice decisions concerning appointment of counsel and bail for evidence of racial discrimination. We have shown that, despite reforms mandated by the Supreme Court or adopted voluntarily by the states, inequities persist. African Americans and Hispanics who find themselves in the arms of the law continue to suffer discrimination in these important court processing decisions.

In this section, we examine prosecutors’ charging and plea bargaining decisions for evidence of differential treatment of minority and white defendants. We argue that there is compelling evidence of racial disparity in charging and plea bargaining. We further contend that this disparity frequently reflects racial discrimination.

Prosecutors exercise broad discretion in deciding whether to file formal charges against individuals suspected of crimes and in determining the number and seriousness of the charges to be filed. According to the Supreme Court, “So long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute, and what charge to file or bring before a grand jury, generally rests entirely in his discretion.”97 As Justice Jackson noted in 1940, “the prosecutor has more control over life, liberty, and reputation than any other person in America.”98

The power of the prosecutor is reflected in the fact that in most states, from one-third to one-half of all felony cases are dismissed by the prosecutor prior to a determination of guilt or innocence.99 Prosecutors can reject charges at the initial screening, either because they believe the suspect is innocent or, more typically, because they believe the suspect is guilty but a conviction would be unlikely. Prosecutors also can reject charges if they feel it would not be in the “interest of justice” to continue the case—because the crime is too trivial; because of a perception that the suspect has been punished enough; or because the suspect has agreed to provide information about other, more serious, cases.100 Finally, prosecutors can reject charges as felonies but prosecute them as misdemeanors.

If a formal charge is filed by the prosecutor, it still can be reduced to a less serious felony or to a misdemeanor during plea bargaining. It also can be dismissed by the court on a recommendation by the prosecutor. This usually happens when the case “falls apart” prior to trial. A witness may refuse to cooperate or may fail to appear at trial, or the judge may rule that the confession or other essential evidence is inadmissible. Unlike the prosecutor’s initial decision to reject the charge, the decision to dismiss a charge already filed requires official court action.

Although the prosecutor’s discretion is broad, it is not unlimited. The Supreme Court, in fact, has ruled that the decision to prosecute may not be “deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification.”101 The prosecutor, in other words, cannot legitimately take the race of the suspect into account in deciding whether to file charges or in deciding on the seriousness of the charge to be filed.

Relatively few studies have examined the effects of race and ethnicity on prosecutorial charging decisions, and those few studies conducted reach contradictory conclusions.102 Some researchers found either that race/ethnicity did not affect charging decisions at all or that race/ethnicity played a very minor role in the decision of whether to prosecute.103 Two recent studies, one of charging decisions in federal courts and one of charging outcomes in state courts, illustrate this conclusion. Lauren Shermer and Brian Johnson examined U.S. attorneys’ decisions to reduce the severity of the charges that defendants were facing in U.S. district courts.104 They found that males were less likely than females to receive charge reductions but that neither race/ethnicity nor age affected the likelihood of charge reduction. Further analysis revealed that race, ethnicity, gender, and age did not interact to affect charge reductions in the predicted way; that is, young male African American and Hispanic offenders were not less likely than older white male offenders to receive a reduction in the charges. Although they were careful to point out that they only examined one aspect of charging in federal courts, Shermer and Johnson concluded that the results of their study “are encouraging in that they support a general lack of systematic bias in the charge reduction decisions of federal prosecutors.”105 Travis Franklin found a similar pattern of results using state court data to examine whether the prosecutor dismissed the case against the defendant (after charges were initially filed).106 Race did not affect the likelihood of dismissal, and black males were no less likely than black females, white males, or white females to have the charges against them dismissed. Both of these recent and methodologically sophisticated studies, then, found no evidence of racial/ethnic bias in prosecutors’ decisions to reduce or dismiss the charges. (For a discussion of a case of reverse discrimination in a prosecutor’s charging decision, see Box 5.3, “In the Media: Mike Nifong and the Duke Lacrosse Case.”)

Gunnar Myrdal, a Swedish social scientist and the author of a book examining the “Negro Problem” in the Unites States in the late 1930s and early 1940s, found substantial discrimination against African Americans in the decision of whether to charge. As Myrdal noted:

State courts receive indictments for physical violence against Negroes in an infinitesimally small proportion of the cases. It is notorious that practically never have white lynching mobs been brought to court in the south, even when the killers are known to all in the community and are mentioned by name in the local press. When the offender is a Negro, indictment is easily obtained, and no such difficulty at the start will meet the prosecution of the case.107

Discrimination of a different type surfaced in a recent, and highly publicized, case involving three members of the Duke University lacrosse team. In April of 2006, Durham County (North Carolina) District Attorney Mike Nifong filed first degree forcible rape, first degree sexual offense, and kidnapping charges against the players, all of whom were white, after an African American woman who had been hired as a stripper for a team party claimed that she had been repeatedly raped. The charges were filed in spite of the fact that the complainant’s story changed several times and that DNA tests failed to connect any of the accused to the alleged sexual assault.

In the weeks and months following the filing of charges, District Attorney Nifong gave dozens of interviews to local and national media. He stated repeatedly that he was “confident that a rape occurred,”108 and he called the players “a bunch of hooligans” whose “daddies could buy them expensive lawyers.”109 Professors at Duke University were even blunter, emphasizing the race of the victim and the suspects and implying that justice would not be served. For example, William Chafe, a professor of history, published an op-ed piece in which he argued that there were similarities between the Duke case and the case involving whites who kidnapped, beat, and murdered an African American boy named Emmett Till in 1950s Mississippi:

Sex and race have always interacted in a vicious chemistry of power, privilege and control. Emmett Till was brutalized and lynched in Mississippi in 1954 for allegedly speaking with too easy familiarity to a white woman storekeeper.... What has all this to do with America today? Among other things, it helps to put into context what occurred in Durham two weeks ago. The mixture of race and sex that transpired on Buchanan Boulevard is not new.110

The case against the three Duke University students began to unravel during the summer and fall of 2006. In mid-December it was revealed that Nifong had withheld exculpatory DNA evidence (that is, evidence that proved none of the three men accused of the assaults was involved) from defense lawyers, and on December 22, Nifong dropped the rape charges, but not the sexual offense and kidnapping charges. Six days later the North Carolina Bar Association filed ethics charges against Nifong, alleging that he had engaged in “conduct that involves dishonesty, fraud, deceit or misrepresentation, as well as conduct that is prejudicial to the administration of justice.”111 In January of 2007, Nifong asked to be taken off the case, which was then turned over to the North Carolina Attorney General, Roy Cooper. After conducting his own investigation, Cooper dropped all of the remaining charges on April 11. Cooper stated that his office “believed these three individuals are innocent of these charges.” He also alleged that the charges resulted from a “tragic rush to accuse and a failure to verify serious allegations” and showed “the enormous consequences of overreaching by a prosecutor.”112

Nifong resigned from his position as Durham County District Attorney on June 18. Two days earlier, he had been disbarred after a disciplinary hearing committee of the North Carolina Bar ruled that he had committed numerous violations of the state’s rules of professional conduct. In August, Nifong was held in criminal contempt of court and sentenced to one day in jail for his actions in the case.

As this case illustrates, prosecutors have an ethical obligation to “do justice.” Their charging decisions cannot be motivated by “personal or political advantages or disadvantages which might be involved” or by “a desire to enhance [their conviction records].”113

Several studies concluded that prosecutors’ charging decisions are affected by race. For example, a study that examined the decision to reject or dismiss charges against felony defendants in Los Angeles County revealed a pattern of discrimination in favor of female defendants and against African American and Hispanic defendants.114 The authors controlled for the defendant’s age and prior criminal record, the seriousness of the charge against the defendant, and whether the defendant used a weapon in committing the crime. As shown in Table 5.4, they found that Hispanic males were most likely to be prosecuted fully, followed by African American males, white males, and females of all ethnic groups.

aMeans have been adjusted for the effect of four independent variables: age of the defendant, prior record of the defendant, seriousness of the charge, and whether the defendant used a weapon.

SOURCE: Table adapted from Cassia Spohn, John Gruhl, and Susan Welch, “The Impact of the Ethnicity and Gender of Defendants on the Decision to Reject or Dismiss Felony Charges,” Criminology 25 (1987), pp. 175–191.

The authors of this study speculated that prosecutors took both race and gender into account in deciding whether to file charges in “marginal cases.” They reasoned that strong cases would be prosecuted and weak cases would be dropped, regardless of the race or gender of the suspect. In marginal cases, however,

prosecutors may simply feel less comfortable prosecuting the dominant rather than the subordinate ethnic groups. They might feel the dominant groups are less threatening. Or they might believe they can win convictions more often against blacks and Hispanics than against Anglos.115

Similar results surfaced in a study of prosecutors’ charging decisions in King County, Washington.116 When the authors of this study examined the prosecutor’s decision to file felony charges (rather than file misdemeanor charges or decline to prosecute the case), they found that prosecutors were substantially more likely to file felony charges against racial minorities than against whites. These differences were especially pronounced for violent crimes and drug offenses. Moreover, the racial disparities did not disappear when the authors controlled for the seriousness of the crime, the defendant’s prior criminal record, and the defendant’s age and gender. Even taking these factors into account, Native Americans were 1.7 times more likely than whites to be charged with a felony, and African Americans were 1.15 times more likely than whites to face felony charges.117

Robert D. Crutchfield and his co-authors stressed that these racial differences were not “necessarily the result of individuals making biased decisions.”118 Rather, the differences probably reflected race-linked legal, economic, and social factors that prosecutors take into account in deciding whether to charge, as well as officials’ focus on drug offenses involving crack cocaine. As we have repeatedly emphasized, however, this type of subtle or indirect discrimination is problematic. It is difficult to disentangle the effects of race/ethnicity, social class, employment history, and family situation. Even if criminal justice officials are justified in taking these social and economic factors into account, doing so will necessarily produce unintended race effects.

An important component of prosecutorial discretion is found in the context of mandatory minimum sentences and habitual offender laws. In many jurisdictions, prosecutors have discretion whether to file charges that trigger mandatory minimum sentences, three-strikes-and-you’re-out provisions, and habitual offender sentencing requirements. If such charges are filed, the judges’ discretion at sentencing is reduced or, in some jurisdictions, eliminated entirely. By determining whether defendants will face charges that trigger these sentence enhancements, prosecutors in essence influence the sentences that judges impose.

There is compelling evidence that prosecutors do exercise their discretion in these types of cases. A study by the U.S. Sentencing Commission, for example, showed that only about half of all federal offenders who were potentially subject to mandatory minimums actually received a mandatory minimum sentence, and there are a number of studies at the state level that reveal that mandatory minimums, sentencing enhancements for use of a firearm, and habitual offender provisions are applied to only a small proportion of eligible defendants.119

There also is evidence that race and ethnicity influence prosecutors’ decisions in these situations. Both David Bjerk120 and Jill Farrell121 found that racial minorities were more likely than whites to be sentenced under mandatory minimum sentences, and two studies122 found that eligible racial minorities were substantially more likely than eligible whites to be sentenced as habitual offenders. A somewhat different pattern of results was found by Jeffery Ulmer and his colleagues, who used data from Pennsylvania (which operates under sentencing guidelines) to examine cases that were eligible to receive a mandatory minimum sentence.123 The outcome of interest was whether the prosecutor filed a motion to apply the mandatory sentence. Their analysis controlled for the severity of the offense, the offender’s prior criminal record, the type of offense, whether the defendant went to trial or pled guilty, and the defendant’s race, ethnicity, gender, and age. They found, consistent with the research discussed earlier, that prosecutors applied the mandatory minimums to a small fraction of eligible offenders. They also found that Hispanics, but not African Americans, were more likely than whites to receive mandatory minimums, and that young Hispanic males were singled out for mandatory application, particularly in drug trafficking cases.124 The authors of this study concluded that “legally relevant factors, case processing concerns (i.e., rewarding guilty pleas), and social statuses (i.e., gender, ethnicity and age) shape prosecutors’ perceptions of blameworthiness and community protection and thus their decisions to apply mandatories.”125

The research discussed thus far suggests that the race/ethnicity of the offender affects prosecutors’ charging decisions. There also is evidence that charging decisions vary depending on the race of the offender and the race of the victim. Gary D. LaFree,126 for example, found that African Americans arrested for raping white women were more likely to be charged with felonies than were either African Americans arrested for raping African American women or whites arrested for raping white women. One study found that defendants arrested for murdering whites in Florida were more likely to be indicted for first-degree murder than those arrested for murdering African Americans.127 Another study of prosecutors’ charging decisions in death penalty cases found that homicide cases involving African American defendants and white victims were more likely than similar cases involving other offender–victim racial combinations to result in first-degree murder charges.128 The prosecutor in the Midwestern jurisdiction where this study was conducted was also more likely to file a notice of aggravating circumstances and to proceed to a capital trial if the defendant was an African American who was accused of killing a white.

Research on sexual assault case processing decisions in Detroit reached a different conclusion. Cassia Spohn and Jeffrey Spears129 used data on sexual assaults bound over for trial in Detroit Recorder’s Court to examine the effect of offender race, victim race, and other case characteristics on the decision to dismiss the charges against the defendant (versus the decision to fully prosecute the case). Building on previous research demonstrating that African Americans who murder or rape whites receive more punitive treatment than other victim–offender racial combinations, they hypothesized that black-on-white sexual assaults would be more likely than either black-on-black or white-on-white sexual assaults to result in the dismissal of all charges. They found just the opposite: the likelihood of charge dismissal was significantly greater for cases involving African American offenders and white victims than for the other two groups of offenders. They also found that African Americans prosecuted for assaulting whites were less likely to be convicted than whites charged with sexually assaulting whites.130

Spohn and Spears concluded that their “unexpected findings” suggest that African American–on–white sexual assaults with weaker evidence are less likely to be screened out during the preliminary stages of the process.131 Police and prosecutors, in other words, may regard sexual assaults involving African American men and white women as inherently more serious than intraracial sexual assaults; consequently, they may be more willing to take a chance with a reluctant victim or a victim whose behavior at the time of the incident was questionable. According to the authors of this study:

The police may be willing to make an arrest and the prosecutor may be willing to charge, despite questions about the procedures used to obtain physical evidence or about the validity of the defendant’s confession. If this is true, then cases involving black offenders and white victims will be more likely than other types of cases to ‘fall apart’ before or during trial.132

A study of charging decisions in California reached a similar conclusion. Joan Petersilia found that white suspects were more likely than African American or Hispanic suspects to be formally charged.133 Her analysis of the reasons given for charge rejection led her to conclude that the higher dismissal rates for non-white suspects reflected the fact that “blacks and Hispanics in California are more likely than whites to be arrested under circumstances that provide insufficient evidence to support criminal charges.”134 Prosecutors were more reluctant to file charges against racial minorities than against whites, in other words, because they viewed the evidence against racial minorities as weaker and the odds of convicting them as lower.

The results of Petersilia’s study in Los Angeles and Spohn and Spears’s study in Detroit provide evidence suggestive of a pattern of selective prosecution—that is, cases involving racial minorities, or certain types of racial minorities, are singled out for prosecution, whereas similar cases involving whites are either screened out very early in the process or never enter the system in the first place.

This argument has been made most forcefully with respect to drug offenses. In Malign Neglect, for example, Michael Tonry135 argues, “Urban black Americans have borne the brunt of the War on Drugs.” More specifically, he charges that “the recent blackening of America’s prison population is the product of malign neglect of the war’s effects on black Americans.”136 Jerome Miller similarly asserts that “from the first shot fired in the drug war African-Americans were targeted, arrested, and imprisoned in wildly disproportionate numbers.”137

There is ample evidence that the war on drugs is being fought primarily in African American and Hispanic communities. In 2009, for example, racial minorities comprised nearly three-fourths of all offenders prosecuted in federal district courts for drug trafficking: 26 percent of these offenders were white, 31 percent were African American, and 40 percent were Hispanic.139 These figures are inconsistent with national data on use of drugs, which reveal that whites are more likely than either African Americans or Hispanics to report having “ever” used a variety of drugs, including cocaine, PCP, LSD, and marijuana.140

In January 1999, Janet Reno, then Attorney General for the United States, issued a memorandum on “Ensuring Racial Neutrality in Prosecution Practices” to all United States Attorneys.138 Excerpts from the memo included the following:

· “Each United States Attorney should examine his or her office’s practices and procedures and take all necessary measures to ensure the use of race-neutral policies in the exercise of prosecutorial discretion within a district. Absent compelling, specific law enforcement imperatives there is ordinarily no justification for differing policies and practices within a district with respect to similarly situated defendants. Moreover, any race-neutral policy that has a disparate racial impact should be carefully reviewed to determine whether the disparity is justified by law enforcement necessity and not the product of conscious or unconscious racial bias.”

· “Care must be taken to ensure that race plays no part in the Government’s decision whether to file a substantial assistance motion or the amount of any recommended reduction.”

· “As the chief federal law enforcement officer in the district, the United States Attorney should take a leadership role in ensuring that all agencies within the district are aware of issues of racial disparity.... [O]ur constant vigilance will ensure that there is no perception of racial disparity in the discharge of our duties. The public recognition that our policies are administered in a race-neutral fashion is as important as the reality that we do so administer them.”

Some commentators cite evidence of a different type of selective prosecution in drug cases (see Box 5.4 for the U.S. Attorney General’s memorandum regarding racial neutrality in federal prosecution). Noting that the penalties for use of crack cocaine mandated by the federal sentencing guidelines are substantially harsher than the penalties provided under many state statutes, these critics suggest that state prosecutors are more likely to refer crack cases involving racial minorities to the federal system for prosecution. Richard Berk and Alec Campbell,141 for example, compared the racial makeup of defendants arrested for sale of crack cocaine in Los Angeles to the racial makeup of defendants charged with sale of crack cocaine in state and federal courts. They found that the racial makeup of arrestees was similar to the racial makeup of those charged with violating state statutes. However, African Americans were overrepresented in federal cases; in fact, over a four-year period, no whites were prosecuted for the sale of crack cocaine in federal court.

This issue was addressed by the Supreme Court in 1996. The five defendants in the case of U.S. v. Armstrong et al.142 alleged that they were selected for prosecution in federal court (the U.S. District Court for the Central District of California) rather than in state court because they were African American. They further alleged that this decision had serious potential consequences. Christopher Armstrong, for example, faced a prison term of 55 years to life under federal statutes, compared to 3 to 9 years under California law. Another defendant, Aaron Hampton, faced a maximum term of 14 years under California law but a mandatory life term under federal law.

Following their indictment for conspiring to possess with intent to distribute more than 50 grams of crack cocaine, the defendants filed a motion for discovery of information held by the U.S. Attorney’s office regarding the race of people prosecuted by that office. In support of their motion, they offered a study showing that all of the defendants in the crack cocaine cases closed by the Federal Public Defender’s Office in 1991 were African American.

The U.S. District Court ordered the U.S. Attorney’s office to provide the data requested by the defendants. When federal prosecutors refused to do so, noting that there was no evidence that they had refused to prosecute white or Hispanic crack defendants, U.S. District Judge Consuelo Marshall dismissed the indictments. The 9th Circuit U.S. Court of Appeals affirmed Judge Marshall’s dismissal of the indictments. The appellate court judges stated that they began with “the presumption that people of all races commit all types of crimes—not with the premise that any type of crime is the exclusive province of any particular racial or ethnic group.”143 They stated that the defendant’s evidence showing that all 24 crack defendants were African American required some response from federal prosecutors.

The U.S. Supreme Court disagreed. In an 8-to-1 decision that did not settle the issue of whether the U.S. Attorney’s Office engaged in selective prosecution, the Court ruled that federal rules of criminal procedure regarding discovery do not require the government to provide the information requested by the defendants. Although prosecutors are obligated to turn over documents that are “material to the preparation of the ... defense,” this applies only to documents needed to mount a defense against the government’s “case-in-chief” (in other words, the crack cocaine charges) and not to documents needed to make a selective prosecution claim. Further, the Court ruled that “For a defendant to be entitled to discovery on a claim that he was singled out for prosecution on the basis of his race, he must make a threshold showing that the Government declined to prosecute similarly situated suspects of other races.”144

Justice Stevens, the lone dissenter in the case, argued that the evidence of selective prosecution presented by the defendants “was sufficiently disturbing to require some response from the United States Attorney’s Office.” According to Stevens:

If a District Judge has reason to suspect that [the United States Attorney for the Central District of California], or a member of her staff, has singled out particular defendants for prosecution on the basis of their race, it is surely appropriate for the Judge to determine whether there is a factual basis for such a concern.145 (See Box 5.5 for a discussion of prosecutorial decisions in the case of the Jena Six.)

In September of 2006 an African American student at Jena (Louisiana) High School defied tradition and sat under a large oak tree in the center of campus that was “reserved” for whites. The next day, three hangman’s nooses were found dangling from the tree. This led to a series of altercations involving white and African American students and, eventually, to the beating of a white student, Justin Barker, by six African American youths who also attended the school. Barker was treated at a local hospital and released. The white students who admitted hanging the nooses were suspended from school for three days.

Although the incident was widely regarded as nothing more than a “schoolyard brawl,”146 the six students, five of whom were juveniles at the time of the incident, were expelled from school and charged, not with assault, but with attempted second-degree murder and conspiracy to commit second-degree murder. All but one of the students—Jesse Ray Beard, who was 14 at the time of the incident—were charged as adults and were facing sentences of up to 100 years in prison.

Rapides Parish District Attorney Reed Walters, who initially justified the murder charges by classifying the tennis shoes the African American students were wearing during the incident as “deadly weapons,” reduced the charges against Mycah Bell, who was 16 when the incident occurred, to aggravated second-degree battery and conspiracy to commit aggravated second-degree battery just before the case was to go to trial. He was convicted of these charges by an all-white jury, but a Louisiana Appellate threw out the conviction, ruling that Bell’s case should have been heard in juvenile court. Bell pled guilty to simple battery in juvenile court and was sentenced to serve 18 months in a juvenile facility. In 2009 the remaining five defendants pleaded no contest to misdemeanour simple battery and were sentenced to seven days unsupervised probation and ordered to pay fines of $500.

Walters’s decisions to charge the Jena Six with felonies in adult court and to not file charges against the students who hung the nooses were widely criticized. In September of 2007 Walters answered those criticisms in an op-ed piece for the New York Times.147 Although he acknowledged that hanging the nooses was “abhorrent and stupid,” he nonetheless argued that “it broke no law.” He also contended that the attack on Justin Barker was not a “schoolyard fight,” but rather was a brutal and unprovoked attack on an individual who had nothing to do with the noose incident. According to Walters,

I can understand the emotions generated by the juxtaposition of the noose incident with the attack on Mr. Barker and the outcomes for the perpetrators of each. In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world.148

Walters’s explanation did not placate his critics. In 2007 the Harvard Civil Rights–Civil Liberties Law Review devoted an entire issue to the case of the Jena Six, with a focus on the actions of the prosecuting attorney. Andrew E. Taslitz and Carole Steiker, who wrote the lead article for the issue, argued that Walters’s decisions and the racial conflict they sparked “provide important windows into how race operates in the American criminal justice system.”149 According to these authors,

The racialized meaning of modern actions also affects public attitudes toward crime, the content of resulting legislation, the ways in which judicial and prose-cutorial discretion are exercised, and the nature of what are likely to be effective solutions to the problems of racial bias and disparity. Once again, these meanings may do their work at a subconscious level, yet their influence cannot be denied. All Americans, but especially those with power to change the criminal justice system, have a duty to expose the subconscious and institutional influences at work in their own choices (and in those of other criminal justice system actors) and to correct racism’s pernicious effects.150

Stevens added that the severity of federal penalties imposed for offenses involving crack cocaine, coupled with documented racial patterns of enforcement, “give rise to a special concern about the fairness of charging practices for crack offenses.” His concerns are echoed by U.S. District Court Judge Consuelo B. Marshall, who observed, “We do see a lot of these [crack] cases and one does ask why some are in state court and some are being prosecuted in federal court ... and if it’s not based on race, what’s it based on?”151

In 1989 Jennifer Clarise Johnson, a 23-year-old African American crack addict, became the first woman in the United States to be convicted for exposing a baby to illegal drugs during pregnancy. The Florida court gave Johnson 15 to 20 years probation and required her to enter drug treatment and report subsequent pregnancies to her probation officer. According to the prosecutor who filed charges against Johnson, “We needed to make sure this woman does not give birth to another cocaine baby.”152

Other prosecutions and convictions in other state courts followed; by 1992 more than 100 women in 24 states had been charged with abusing an unborn child through illegal drug use during pregnancy.

Many of these cases were appealed and, until 1997, all of the appeals resulted in the dismissal of charges. Then in October 1997, the South Carolina Supreme Court became the first court in the United States to rule that a viable fetus could be considered a person under child abuse laws and that a pregnant woman who abused drugs during the third trimester of pregnancy therefore could be charged with child abuse or other, more serious, crimes.153 Two months later, Talitha Renee Garrick, a 27-year-old African American woman who admitted that she smoked crack cocaine an hour before she gave birth to a stillborn child, pled guilty to involuntary manslaughter in a South Carolina courtroom.

A number of commentators contend that prosecutors’ charging decisions in these types of cases reflect racial discrimination. Humphries and colleagues, for example, asserted, “The overwhelming majority of prosecutions involve poor women of color.”154 Dorothy Roberts155 similarly argued that “Poor Black women are the primary targets of prosecutors, not because they are more likely to be guilty of fetal abuse, but because they are Black and poor.”156

To support her allegations, Roberts cited evidence documenting that most of the women who have been prosecuted have been African American; she notes that the 52 women prosecuted through 1990 included 35 African Americans, 14 whites, 2 Hispanics, and 1 Native American. Ten out of 11 cases in Florida, and 17 out of 18 cases in South Carolina, were brought against African American women.157 According to Roberts, these glaring disparities create a presumption of racially selective prosecution.

Randall Kennedy, an African American professor of law at Harvard University and the author of Race, Crime, and the Law, acknowledged that Roberts’s charges of selective prosecution and racial misconduct “are surely plausible.” As he noted, “Given the long and sad history of documented, irrefutable racial discrimination in the administration of criminal law ... no informed observer should be shocked by the suggestion that some prosecutors treat black pregnant women more harshly than identically situated white pregnant women.”158

Kennedy claimed, however, that Roberts’s contention that prosecutors target women “because they are black and poor,”159 although plausible, is not persuasive. He noted that Roberts relied heavily on evidence from a study designed to estimate the prevalence of alcohol and drug abuse among pregnant women in Pinellas County, Florida. This study revealed that there were similar rates of substance abuse among African American and white women but that African American women were 10 times more likely than white women to be reported to public health authorities (as Florida law required).

Kennedy argued that the Florida study does not provide conclusive evidence of racial bias. He noted, in fact, that the authors of the study themselves suggested that the disparity in reporting rates might reflect either the fact that newborns who have been exposed to cocaine exhibit more severe symptoms at birth or the fact that African American pregnant women are more likely than white pregnant women to be addicted to cocaine (rather than to alcohol, marijuana, or some other drug). Kennedy asserted that Roberts failed to address these alternative hypotheses and simply insisted “‘racial prejudice and stereotyping must be a factor’ in the racially disparate pattern of reporting...”160

Kennedy also contended that Roberts’s analysis failed to consider the problem of underprotection of the law. Imagine, he asked, what the reaction would be if the situation were reversed and prosecutors brought child abuse charges solely against drug-abusing white women. “Would that not rightly prompt suspicion of racially selective devaluation of black babies on the grounds that withholding prosecution deprives black babies of the equal protection of the laws?”161

What do you think? Do prosecutors “target” pregnant women who are poor and African American? What would the reaction be (among whites? among African Americans?) if only white women were prosecuted?

There has been relatively little research focusing explicitly on the effect of race on prosecutors’ plea bargaining decisions. Few studies have asked if prosecutors take the race of the defendant into consideration in deciding whether to reduce or drop charges in exchange for a guilty plea. Moreover, the studies that have been conducted have reached contradictory conclusions.

Research reveals that prosecutors’ plea bargaining decisions are strongly determined by the strength of evidence against the defendant, by the defendant’s prior criminal record, and by the seriousness of the offense.162 Prosecutors are more willing to offer concessions to defendants who commit less serious crimes and have less serious prior records. They also are more willing to alter charges when the evidence against the defendant is weak or inconsistent.

A number of studies conclude that white defendants are offered plea bargains more frequently and get better deals than racial minorities. A study of the charging process in New York, for example, found that race did not affect charge reductions if the case was disposed of at the first presentation. Among defendants who did not plead guilty at the first opportunity, however, African Americans received less substantial reductions than whites.163 An analysis of 683,513 criminal cases in California concluded that “Whites were more successful in getting charged reduced or dropped, in avoiding ‘enhancements’ or extra charges, and in getting diversion, probation, or fines instead of incarceration.”164

An analysis of plea bargaining under the federal sentencing guidelines also concluded that whites receive better deals than racial minorities.165 This study, which was conducted by the United States Sentencing Commission, examined sentence reductions for offenders who provided “substantial assistance” to the government. According to §5K1.1 of the Guidelines Manual, if an offender assists in the investigation and prosecution of another person who has committed a crime, the prosecutor can ask the court to reduce the offender’s sentence. Because the guidelines do not specify either the types of cooperation that “count” as substantial assistance or the magnitude of the sentence reduction that is to be given, this is a highly discretionary decision.

The Sentencing Commission estimated the effect of race/ethnicity on both the probability of receiving a substantial assistance departure and the magnitude of the sentence reduction. They controlled for other variables such as the seriousness of the offense, use of a weapon, the offender’s prior criminal record, and other factors deemed relevant under the sentencing guidelines. They found that African Americans and Hispanics were less likely than whites to receive a substantial assistance departure; among offenders who did receive a departure, whites received a larger sentence reduction than either African Americans or Hispanics.166 According to the Commission’s report, “the evidence consistently indicated that factors that were associated with either the making of a §5K1.1 motion and/or the magnitude of the departure were not consistent with principles of equity.”167

Similar results were reported by Celesta A. Albonetti,168 who examined the effect of guideline departures on sentence outcomes for drug offenders. She found that guideline departures (most of which reflected prosecutors’ motions to reduce the sentence in return for the offenders’ “substantial assistance”) resulted in larger sentence reductions for white drug offenders than for African American or Hispanic drug offenders. A guideline departure produced a 23 percent reduction in the probability of incarceration for white offenders, compared with a 14 percent reduction for Hispanic offenders and a 13 percent reduction for African American offenders.169 Albonetti concluded that her findings “strongly suggest that the mechanism by which the federal guidelines permit the exercise of discretion operates to the disadvantage of minority defendants.”170

Two studies found that race did not affect plea bargaining decisions in the predicted way. An examination of the guilty plea process in nine counties in Illinois, Michigan, and Pennsylvania revealed that defendant race had no effect on four measures of charge reduction.171 The authors of this study concluded that “the allocation of charge concessions did not seem to be dictated by blatantly discriminatory criteria or punitive motives.”172 A study of charge reductions in two jurisdictions found that racial minorities received more favorable treatment than whites. In one county, African Americans received more favorable charge reductions than whites; in the other county, Hispanics were treated more favorably than whites.173 The authors of this study speculated that these results might reflect devaluation of minority victims. As they noted, “if minority victims are devalued because of racist beliefs, such sentiments could, paradoxically, produce more favorable legal outcomes for minority defendants.” The authors also suggested that the results might reflect overcharging of minority defendants by the police; prosecutors may have been forced “to accept pleas to lesser charges from black defendants because of the initial overcharging.”174

In sum, although the evidence concerning the effect of race on prosecutors’ charging and plea bargaining decisions is both scanty and inconsistent, a number of studies have found that African American and Hispanic suspects are more likely than white suspects to be charged with a crime and prosecuted fully. There also is evidence supporting charges of selective prosecution of racial minorities, especially for drug offenses. The limited evidence concerning the effect of race on plea bargaining is even more contradictory. Given the importance of these initial charging decisions, these findings “call for the kind of scrutiny in the pretrial stages that has been so rightly given to the convicting and sentencing stages.”175

The court system that tried and sentenced the Scottsboro Boys in 1931 no longer exists, in the South or elsewhere. Reforms mandated by the U.S. Supreme Court or adopted voluntarily by the states have eliminated much of the blatant racism directed against racial minorities in court. African American and Hispanic criminal defendants are no longer routinely denied bail and then tried by all-white juries without attorneys to assist them in their defense. They are not consistently prosecuted and convicted with less-than-convincing evidence of guilt.

Implementation of these reforms, however, has not produced equality of justice. As shown in the preceding sections of this chapter, there is evidence that defendant race/ethnicity continues to affect decisions regarding bail, charging, and plea bargaining. Some evidence suggests that race has a direct and obvious effect on these pretrial decisions; other evidence suggests that the effect of race is indirect and subtle. It is important to note, however, that discriminatory treatment during the pretrial stage of the criminal justice process can have profound consequences for racial minorities at trial and sentencing. If racial minorities are more likely than whites to be represented by incompetent attorneys or detained in jail prior to trial, they may, as a result of these differences, face greater odds of conviction and harsher sentences. Racially discriminatory charging decisions have similar “spillover” effects at trial.

Justice on the Bench?: Trial and Adjudication in Criminal Court

In our courts, when it’s a white man’s word against a black man’s, the white man always wins. They’re ugly but those are the facts of life. The one place where a man ought to get a square deal is a courtroom, be he any color of the rainbow, but people have a way of carrying their resentments right into a jury box.

HARPER LEE, TO KILL A MOCKINGBIRD1

Goals of the Chapter

In this chapter we focus on trial and adjudication in criminal court. We begin with an examination of race and the jury selection process. We focus on both the procedures used to select the jury pool and the process of selecting the jurors for a particular case. We also discuss the role that race plays in exonerations in rape cases and the issue of “playing the race card” in a criminal trial. We end the chapter by summarizing the scholarly debate surrounding the issue of racially based jury nullification.

After you have read this chapter:

1. You should be able to discuss the role of the jury and explain how the U.S. Supreme Court has interpreted the requirement that jurors be chosen from a random cross-section of the population.

2. You should be able to explain how race and ethnicity continue to be taken into consideration during the jury selection process.

3. You should be able to evaluate competing arguments regarding the peremptory challenge and whether it should be eliminated.

4. You should be able to explain the concept of jury nullification and assess competing arguments regarding the legitimacy of race-based nullification.

5. You should be able to clarify why Randall Kennedy asserts that playing the race card in a criminal trial is “virtually always morally and legally wrong.”

In 1997 Orange County (California) Superior Court Judge Everett Dickey reversed Geronimo Pratt’s 1972 conviction for first-degree murder, assault with intent to commit murder, and robbery.2 Pratt, a decorated Vietnam War veteran and a leader in the Black Panther Party, was accused of killing Caroline Olsen and shooting her ex-husband Kenneth Olsen on the Lincoln Park tennis court in Santa Monica. Pratt, who claimed he had been in Oakland on Panther business at the time of the crime, was convicted based in large part on the testimony of another member of the Black Panther Party, Julius Butler. It was later revealed that Butler had been a paid police informant and that police and prosecutors in Los Angeles conspired to keep this information from the jury hearing Pratt’s case.

Over the next 25 years, Pratt’s lawyers filed a series of appeals, arguing that Pratt’s conviction “was based on false testimony knowingly presented by the prosecution.”3 Their requests for a rehearing were repeatedly denied by California courts, and the Los Angeles District Attorney’s Office refused to reopen the case. Then, in May 1997, Judge Dickey granted Pratt’s petition for a writ of habeas corpus and reversed his conviction. Citing errors by the district attorney who tried the case, Judge Dickey stated, “The evidence which was withheld about Julius Butler and his activities could have put the whole case in a different light, and failure to timely disclose it undermines confidence in the verdict.”4

Pratt, who spent 25 years in prison—including 8 years in solitary confinement—was released on June 10, 1997. In April 2000 Pratt’s lawsuit for false imprisonment and violation of his civil rights was settled out of court: the City of Los Angeles agreed to pay Pratt $2.75 million, and the federal government agreed to pay him $1.75 million. Pratt’s attorney, Johnnie Cochran, Jr., described the settlement as “unprecedented” and praised Pratt for “the relentless pursuit of justice.” Cochran also stated that the settlement puts “to rest a matter that has dragged on for more than three decades.”5

We began the previous chapter with a discussion of the Scottsboro case, a case involving nine young African American males who were convicted of raping two white girls in the early 1930s. We noted that the defendants were tried by all-white juries and that the Supreme Court overturned their convictions because of the systematic exclusion of African Americans from the jury pool.

However, the Scottsboro Boys were tried in the 1930s, and much has changed since then. Race relations have improved, and decisions handed down by the Supreme Court have made it increasingly difficult for court systems to exclude African Americans from jury service. Nevertheless, “racial prejudice still sometimes seems to sit as a ‘thirteenth juror.’”6 As the Geronimo Pratt case reveals, the court system is not racially neutral. All-white juries continue to convict African American defendants on less-than-convincing evidence. All-white juries continue to acquit whites who victimize African Americans despite persuasive evidence of guilt. And police and law enforcement officials sometimes bend the law in their zeal to obtain a conviction. Consider the following recent cases:

1991: Four white Los Angeles police officers were charged in the beating of Rodney King, an African American man stopped for a traffic violation. A videotape of the incident, which showed the officers hitting King with their batons and kicking him in the head as he lay on the ground, was introduced as evidence at the trial. Los Angeles exploded in riots after a jury composed of 10 whites, 1 Asian American, and 1 Hispanic American acquitted the officers on all charges. A poll conducted in the aftermath of the jury verdict revealed that 45 percent of African Americans but only 12 percent of whites attributed the not guilty verdicts to racism and lack of African American participation on the juries rather than to errors by the prosecutor or inadequate evidence of the officers’ guilt.7

2005: Walter Rideau, a 62-year-old African American whom Life magazine once called “the most rehabilitated prisoner in America,” walked out of a Calcasieu (Louisiana) Parish jail a free man after a jury that included four African Americans found him guilty of manslaughter rather than murder. Rideau, who had previously been sentenced to death three times by all-white, all-male juries, spent 44 years in prison for the 1961 murder of a white female bank teller, a crime he did not deny. Each of his convictions and death sentences were overturned by federal courts. His first conviction was overturned by the U.S. Supreme Court, which referred to his trial as “kangaroo court proceedings.” A federal appellate court overturned his second conviction and death sentence because the prosecutor removed potential jurors who said they would be hesitant, but not completely unwilling, to sentence Rideau to death. In 2000 a federal appellate court overturned his third conviction because of racial discrimination in the selection of the grand jury. Following this decision, the state of Louisiana decided to retry Rideau a fourth time, despite the fact that many of the prosecution witnesses were dead or otherwise unable to testify. The Calcasieu Parish District Attorney (with the approval of the judge in the case) had the testimony of the state’s witnesses in the earlier trial read to the new jury. The jury found him guilty of manslaughter, which under Louisiana law carried a maximum penalty of 21 years in prison. Theodore M. Shaw, president of the NAACP Legal Defense and Educational Fund, which represented Rideau in the most recent case, stated, “This was not a case about innocence. It was about fairness and redemption—fairness, because even the guilty are entitled to a trial untainted by racial discrimination and misconduct, and redemption, because in a real sense the teenager who committed the tragic crime died while incarcerated for 44 years and was reborn as the man who paid the price and struggled for redemption.”8

2010: Johannes Mehserle, a white former Bay Area Rapid Transit (BART) police officer, was convicted of involuntary manslaughter for killing Oscar Grant, a 22-year-old African American who was unarmed and lying face down on an outdoor train platform in Oakland (California) on New Year’s Day of 2009. Mehserle, who was charged with second-degree murder, maintained that he shot Grant by mistake when he pulled his gun, rather than his Taser, from its holster. The jury’s verdict meant that the jury did not believe that Mehserle intended to shoot Grant, but instead believed that his behavior was so negligent as to constitute a crime. After the jury’s verdict was revealed, the U.S. Department of Justice’s civil rights division announced that it was launching an investigation into whether Mehserle violated Grant’s civil rights. In a letter to U.S. Attorney General Eric Holder urging him to open the investigation, U.S. Representative Barbara Lee wrote, “While I understand this is a state criminal matter, certain issues surrounding this case seem to invite further examination by the Civil Rights Division of the Department of Justice. Given the ongoing tensions between African-American communities, communities of color and law enforcement, care must be taken to ensure that civil rights statutes are properly enforced and positive relationships between these communities and law enforcement are forged.”9

Three facts about jury discrimination are largely undisputed. First, the all-white jury has been a staple of the American criminal justice system for most of our history. Second, the Supreme Court has long condemned discrimination in jury selection. And third, race discrimination in jury selection remains a pervasive feature of our justice system to this day. The interesting question is how all of these facts can be true at the same time.

DAVID COLE, NO EQUAL JUSTICE10

The jury plays a critically important role in the criminal justice system. Indeed, “the jury is the heart of the criminal justice system.”11 Although it is true that most cases are settled by plea and not by trial, many of the cases that do go to trial involve serious crimes in which defendants are facing long prison terms or even the death penalty. In these serious—and highly publicized—cases, the jury serves as the conscience of the community and, in the words of the United States Supreme Court, as “an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge.”12 As the Court has repeatedly emphasized, the jury also serves as “the criminal defendant’s fundamental ‘protection of life and liberty against race or color prejudice.’”13

The Supreme Court first addressed the issue of racial discrimination in jury selection in its 1880 decision of Strauder v. West Virginia.14 The Court ruled that a West Virginia statute limiting jury service to white males violated the equal protection clause of the Fourteenth Amendment and therefore was unconstitutional. The Court concluded that the statute inflicted two distinct harms. The first was a harm that affected the entire African American population. According to the Court,

The very fact that colored people are singled out and expressly denied by a statute all right to participate in the administration of the law, as jurors, because of their color ... is practically a brand upon them affixed by the law, an assertion of their inferiority, and a stimulant to that race prejudice which is an impediment to securing to individuals of the race that equal justice which the law aims to secure to all others.15

The Court stated that the West Virginia statute inflicted a second harm that primarily hurt African American defendants, who were denied even the chance to have people of their own race on their juries. “How can it be maintained,” the Justices asked, “that compelling a man to submit to trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of his color alone, however well qualified in other respects, is not a denial to him of equal legal protection?”16 The Court added that this was precisely the type of discrimination the equal protection clause was designed to prevent.

After Strauder v. West Virginia, it was clear that states could not pass laws excluding African Americans from jury service. This ruling, however, did not prevent states, and particularly Southern states, from developing techniques designed to preserve the all-white jury. In Delaware, for example, local jurisdictions used lists of taxpayers to select “sober and judicious” persons for jury service. Under this system, African American taxpayers were eligible for jury service but were seldom, if ever, selected for the jury pool. The state explained this result by noting that few of the African Americans in Delaware were intelligent, experienced, or moral enough to serve as jurors. As the Chief Justice of the Delaware Supreme Court concluded: “That none but white men were selected is in nowise remarkable in view of the fact—too notorious to be ignored—that the great body of black men residing in this State are utterly unqualified by want of intelligence, experience, or moral integrity to sit on juries.”17

The U.S. Supreme Court refused to accept this explanation. In Neal v. Delaware, decided two years after Strauder, the court ruled that the practice had systematically excluded African Americans from jury service and was therefore a case of purposeful—and unconstitutional—racial discrimination.18 Justice Harlan, writing for the Court, stated that it was implausible “that such uniform exclusion of [Negroes] from juries, during a period of many years, was solely because ... the black race in Delaware were utterly disqualified, by want of intelligence, experience, or moral integrity.”19

These early court decisions did not eliminate racial discrimination in jury selection, particularly in the South. Gunnar Myrdal’s analysis of the “Negro problem” in the United States in the late 1930s and early 1940s concluded that the typical jury in the South was composed entirely of whites.20 He noted that some courts had taken steps “to have Negroes on the jury list and call them in occasionally for service.”21 He added, however, that many Southern courts, and particularly those in rural areas, had either ignored the constitutional requirement or had developed techniques “to fulfill legal requirements without using Negro jurors.”22 As a result, as Seymour Wishman noted, “For our first hundred years, blacks were explicitly denied the right to be jurors, which meant that if a black defendant was not lynched on the spot, an all-white jury would later decide what to do with him.”23

Since the mid-1930s, the Supreme Court has made it increasingly difficult for court systems to exclude African Americans from the jury pool. It consistently has struck down the techniques used to circumvent the requirement of racial neutrality in the selection of the jury pool. The Court, for example, ruled that it was unconstitutional for a Georgia county to put the names of white potential jurors on white cards, the names of African American potential jurors on yellow cards, and then “randomly” draw cards to determine who would be summoned.24 Similarly, the Court struck down the “random” selection of jurors from tax books in which the names of white taxpayers were in one section and the names of African American taxpayers were in another.25 As the Justices stated in Avery v. Georgia, “the State may not draw up its jury lists pursuant to neutral procedures but then resort to discrimination at other stages in the selection process.”26

The states’ response to the Supreme Court’s increasingly vigilant oversight of the jury selection process was not always positive.27 The response in some southern jurisdictions “was a new round of tokenism aimed at maintaining as much of the white supremacist status quo as possible while avoiding judicial intervention.”28 These jurisdictions, in other words, included a token number of racial minorities in the jury pool in an attempt to head off charges of racial discrimination. The Supreme Court addressed this issue as late as 1988.29 The Court reversed the conviction of Tony Amadeo, who was sentenced to death for murder in Putnam County, Georgia, after it was revealed that the Putnam County district attorney asked the jury commissioner to limit the number of African Americans and women on the master lists from which potential jurors were chosen.

The cases discussed thus far focus on racial discrimination in the selection of the jury pool. The issue of whether Hispanics—or, in the case of Texas, Mexican Americans—were similarly protected by the Equal Protection Clause of the Fourteenth Amendment proved more contentious and was not settled until 1954, a full 74 years after the Court ruled in Strauder that states could not ban African Americans from jury service by statute.

In a series of cases challenging the exclusion of Mexican Americans from jury service, Texas appellate courts consistently ruled against those challenging the system.30 In early cases, the Texas courts ruled that the lack of Mexican-American jurors did not reflect purposeful discrimination but, rather, a lack of qualified candidates. For example, in Lugo v. Texas,31 which was decided in 1939, the Court of Criminal Appeals heard testimony from the sheriff of San Patricio County that only two Mexican Americans had been summoned for jury duty (and neither of them served) in his 15 years as sheriff. However, the court ruled that this did not constitute evidence of intentional discrimination, noting that the sheriff also testified that “most of the Mexican population of this county are unable to speak intelligently in English and are unable to read and write the English language.”

In later cases, the appellate courts in Texas shifted gears, arguing that there was no discrimination against the “Mexican race” because, first, the Equal Protection Clause recognized only two races or “classes” of people—whites and blacks—and, second, Mexican Americans were part of the white race and therefore were not discriminated against when juries were made up entirely of whites. As the court stated in Hernandez v. State, “Mexican people ... are not a separate race but are white people of Spanish descent. In contemplation of the Fourteenth Amendment, Mexicans are therefore members of and within the classification of the white race, as distinguished from the members of the Negro race.”32

The Texas courts insisted that Mexican Americans were not a racial group, but a nationality group, and, as such, the Equal Protection Clause did not apply to them. As Clare Sheridan has pointed out, “The irony of absorbing Mexican Americans into the category ‘white’ was that it denied them equal protection as a group.”33

The United States Supreme Court weighed in on these issues in 1954. The case involved Pete Hernandez, who was indicted for murder by a grand jury in Jackson County, Texas; he was convicted and sentenced to life imprisonment. Hernandez’s lawyers challenged the composition of both the grand jury that indicted him and the petit jury that was selected for his trial, arguing that the selection process, which systematically excluded persons of Mexican descent from jury service, violated the Fourteenth Amendment. There was evidence that no Mexican Americans had been on a jury in Jackson County for at least a quarter century, despite the fact that there were Mexican Americans who were qualified to serve.

Lawyers for the state of Texas argued that Mexican Americans were “whites of Spanish descent” and that Hernandez therefore had an impartial jury, composed of members of his own race (in other words, whites). The Texas Court of Criminal Appeals agreed, concluding that Mexican Americans were a nationality, not a race, and that the Equal Protection Clause was not designed to ensure equal rights to those of different nationalities. The court stated that Hernandez was seeking “special privileges” that other whites did not have. According to the court’s ruling, “It is apparent, therefore, that appellant seeks to have this court recognize and classify Mexicans as a special class within the white race and to recognize that special class as entitled to special privileges in the organization of grand and petit juries in this state.”34

The United States Supreme Court disagreed with the Texas Court of Criminal Appeals’ analysis. Writing for the majority, Chief Justice Earl Warren said, “The State of Texas would have us hold that there are only two classes—white and Negro—within the contemplation of the Fourteenth Amendment. The decisions of this Court do not support that view.”35 According to the Court’s decision:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a “two-class theory”—that is, based upon differences between “white” and Negro.36

The Supreme Court overturned Hernandez’s conviction and, in doing so, stated that the fact that there were no Mexican Americans on juries for over 25 years could not be due to chance. As the majority stated, “it taxes our credulity to say that mere chance resulted in there being no members of this class among the over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any individual jury commissioner.”37

Although the Supreme Court decisions discussed in the previous two sections have made it more difficult for states to discriminate overtly on the basis of race or ethnicity, the procedures used to select the jury pool are not racially neutral. Many states obtain the names of potential jurors from lists of registered voters, automobile registrations, or property tax rolls. The problem with this seemingly objective method is that in some jurisdictions racial minorities are less likely than whites to register to vote or to own automobiles or taxable property. As a result, racial minorities are less likely than whites to receive a jury summons. Further compounding the problem is the fact that “for a number of reasons, from skepticism and alienation to the inability to take time off from their jobs, minorities and the poor are also less likely to respond to those summonses they receive.”38 The result is a jury pool that overrepresents white middle- and upper-class persons and underrepresents racial minorities and those who are poor. (See Box 6.1 for the requirements for serving on a jury in Massachusetts.)

Juror Service

Juror service in the participating counties shall be a duty which every person who qualifies under this chapter shall perform when selected. All persons selected for juror service on grand and trial juries shall be selected at random from the population of the judicial district in which they reside. All persons shall have equal opportunity to be considered for juror service. All persons shall serve as jurors when selected and summoned for that purpose except as hereinafter provided. No person shall be exempted or excluded from serving as a grand or trial juror because of race, color, religion, sex, national origin, economic status, or occupation. Physically handicapped persons shall serve except where the court finds such service is not feasible. This court shall strictly enforce the provisions of this section.

Disqualification from Juror Service

As of the date of receipt of the juror summons, any citizen of the United States, who is a resident of the judicial district or who lives within the judicial district more than fifty per cent of the time, whether or not he is registered to vote in any state or federal election, shall be qualified to serve as a grand or trial juror in such judicial district unless one of the following grounds for disqualification applies:

1. Such person is under the age of eighteen years.

2. Such person is seventy years of age or older and indicates on the juror confirmation form an election not to perform juror service.

3. Such person is not able to speak and understand the English language.

4. Such person is incapable by reason of a physical or mental disability of rendering satisfactory juror service.

5. Such person is solely responsible for the daily care of a permanently disabled person living in the same household and the performance of juror service would cause a substantial risk of injury to the health of the disabled person.

6. Such person is outside the judicial district and does not intend to return to the judicial district at any time during the following year.

7. Such person has been convicted of a felony within the past seven years or is defendant in pending felony cases or is in the custody of a correctional institution.

8. Such person has served as a grand or trial juror in any state or federal court within the previous three calendar years or the person is currently scheduled to perform such service.

SOURCE: 234A M.6.L.A. § et seq.

In advocating for race-conscious jury selection, Hiroshi Furukai and Darryl Davies state,

... jury studies show that a number of legal and non-legal factors operate together to cause the under-representation of racial minorities on the jury. Relying on current color-blind jury selection procedures—in effect leaving the racial composition of the jury to chance—almost always leads to racially disproportionate representation. One way to guarantee a mixed jury is through a race-conscious selection policy, or its equivalent, the ‘jurymandering’ method. Jurymandering is the use of an affirmative mechanism, such as a racial quota, to engineer mixed juries that may not occur under current jury selection procedures.

SOURCE: Hiroshi Furukai and Darryl Davies, “Affirmative Action in Jury Selection,” Virginia Journal of Social Policy & the Law 4 (1996), p. 653.

State and federal jurisdictions have experimented with a number of techniques for increasing the racial diversity of the jury pool. When officials in Hennepin County (St. Paul), Minnesota, which is 9 percent nonwhite, discovered that most grand juries were all white, they instituted a number of reforms designed to make jury service less burdensome. They doubled the pay for serving, provided funding to pay jurors’ daycare expenses, and included a round-trip bus pass with each jury summons.39 As a result of these measures, the number of racial minorities selected for grand juries increased.

A more controversial approach involves “race-conscious jury selection”40 or “jurymandering.”41 (See Box 6.2, for an argument in favor of jurymandering.) Some jurisdictions, for example, send a disproportionate number of summonses to geographic areas with large populations of racial minorities. Others attempt to select a more representative jury pool by subtracting the names of white prospective jurors until the proportion of racial minorities in the pool matches the proportion in the population. A more direct effort to ensure racial diversity involves setting aside a certain number of seats for racial minorities. Although no jurisdiction has applied this approach to the selection of trial jurors, judges in Hennepin County are required to select two minority grand jurors for every grand jury.42

A somewhat different approach was tried in a U.S. District Court. In 2005, a federal district court judge in Boston ordered court administrators to send a new summons to another person in the same zip code if a summons was returned as undeliverable.43 Judge Nancy Gertner took this step in an attempt to increase the pool of African American jurors available for a federal death penalty case involving two African American men. Massachusetts pioneered the use of resident lists rather than lists of registered voters in an attempt to increase the racial diversity of the jury pool. However, defense attorneys in the case argued that resident lists are more likely to be inaccurate in areas with the highest percentage of African Americans, resulting in a large number of summonses returned as undeliverable. According to Patricia Garin, one of the defense attorneys, Gertner’s remedy, although unlikely to make juries truly representative of the community, was “a step in the right direction” and would increase the chances that people of color would serve on juries.44

Opinions regarding these techniques are divided. Randall Kennedy argued that “officials should reject proposals for race-dependent jury reforms.”45 Although he acknowledged that these proposals are well-intentioned, Kennedy maintained that they would have unintended consequences (for example, jurors selected because of their race might believe they are expected to act as representatives of their race during deliberations) and would be difficult to administer (for example, officials would be required to determine the race of potential jurors and defendants, which would inevitably result in controversies over racial identification). Kennedy also suggested that the more direct techniques may be unconstitutional. As he noted, “Over the past decade, the U.S. Supreme Court has become increasingly hostile to race-dependent public policies, even when they have been defended as efforts to include historically oppressed racial minorities in networks of economic opportunity and self-government.”46

Although the Supreme Court has not yet addressed this issue, in 1998 the U.S. Court of Appeals for the Sixth Circuit ruled that subtracting whites from jury panels so that all panels matched the racial makeup of the community violated the equal protection rights of white jurors.47 Four years later, the U.S. Court of Appeals for the Second Circuit handed down a similar ruling. This case involved the prosecution of an African American charged with the death of an Orthodox Jewish student. The judge in the case believed that it was important to seat a jury that was racially and religiously diverse. When one of the empaneled jurors was excused as a result of illness, the judge removed a second white juror from the panel and filled the two slots with an African American and a Jewish juror, neither of whom was next in line on the list of alternate jurors. In United States v. Nelson,48 the court recognized the motivations that led to the judge’s decision, noting that they were “undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary,” but nonetheless ruled that “that fact cannot justify the district court’s race-conscious actions. The significance of a jury in our polity as a body chosen apart from racial and religious manipulations is too great to permit categorization by race or religion even from the best of intentions.”49

Those who disagree with these court rulings contend that race-conscious plans that create representative jury pools should be allowed because they reduce the likelihood that people of color will be tried by all-white juries. Albert Alschuler, an outspoken advocate of racial quotas for juries, asserted that “few statements are more likely to evoke disturbing images of American criminal justice than this one: ‘the defendant was tried by an all-white jury.’”50 He and other critics of jury selection procedures contend that lack of participation by racial minorities on juries that convict the African Americans and Hispanics who fill court dockets in many jurisdictions leads to questions regarding the legitimacy of their verdicts. (See Box 6.3 for anecdotal evidence of racial bias during jury deliberations.) Advocates of race-conscious plans also argue that the inclusion of greater numbers of racial minorities will counteract the cynicism and distrust that minorities feel toward their government. As David Cole, a professor at Georgetown University Law Center, wrote, “If the criminal justice system is to be accepted by the black community, the black community must be represented on juries. The long history of excluding blacks from juries is one important reason why blacks as a class are more skeptical than whites about the fairness of the criminal justice system.”51

In an article on “Unconscious Bias and the Impartial Jury” that appeared in the Connecticut Law Review, Janet Bond Arterton, a U.S. District Court Judge for the District of Connecticut, discussed a note that she received from a juror at the conclusion of a case involving an all-white jury and three African American plaintiffs. The juror wrote:

“I would like to convey to you, in confidence, a few thoughts about my experience. I recall walking into the Jury Assembly room last Thursday, and being stunned by the singular ‘whiteness’ of the crowd. Out of almost 120 people reporting, one—yes, one—was a person of color. While it is my feeling that concern for quotas along racial lines can sometimes be excessive these days, no one could argue that the juries formed that day were a fair representation of our society. Couple that with the fact that the case involved three principals who are African-American, and the selection process seems all the more problematic.

“Personally, I have no qualms with our decision in the case. We were able to size up the credibility of witnesses and their testimony without a great deal of soul-searching or in-depth deliberation. I believe this was fortunate, considering the makeup and predisposition of the jury. During deliberations, matter-of-fact expressions of bigotry and broad-brush platitudes about ‘those people’ rolled off the tongues of a vocal majority as naturally and unabashedly as if they were discussing the weather.... Had just one African-American been sitting in that room, the content of the discussion would have been quite different. And had the case been more balanced—one that hinged on fine distinction or subtle nuances—a more diverse jury might have made a material difference in the outcome.”

SOURCE: Honorable Janet Bond Arterton, “Unconscious Bias and the Impartial Jury,” Connecticut Law Review 40 (2008), pp. 1,023–1,033.

The Supreme Court consistently has ruled that the jury should be drawn from a representative cross-section of the community and that race is not a valid qualification for jury service. These requirements, however, apply only to the selection of the jury pool. They do not apply to the selection of individual jurors for a particular case. In fact, the Court has repeatedly stated that a defendant is not entitled to a jury “composed in whole or in part of persons of his own race.”52 Thus, prosecutors and defense attorneys can use their peremptory challenges—“challenges without cause, without explanation, and without judicial scrutiny”53—as they see fit (for evidence of this, see Box 6.4). They can use their peremptory challenges in a racially discriminatory manner.

It is clear that lawyers do take the race of the juror into consideration during the jury selection process. Prosecutors assume that racial minorities will side with minority defendants, and defense attorneys assume that racial minorities will be more inclined than whites to convict white defendants. As a result of these assumptions, both prosecutors and defense attorneys have used their peremptory challenges to strike racial minorities from the jury pool. Kennedy, in fact, characterized the peremptory challenge as “a creature of unbridled discretion that, in the hands of white prosecutors and white defendants, has often been used to sustain racial subordination in the courthouse.”54

A 1973 Texas prosecutor’s manual for jury selection provided the following advice:

· You are not looking for a fair juror, but rather a strong, biased and sometimes hypocritical individual who believes that defendants are different from them in kind, rather than degree. You are not looking for any member of a minority group which may subject him to oppression—they almost always empathize with the accused. You are not looking for free thinkers or flower children.

· Observation is worthwhile.... Look for physical afflictions. These people usually sympathize with the accused.

· I don’t like women jurors because I can’t trust them. They do, however, make the best jurors in cases involving crimes against children.

· Extremely overweight people, especially women and young men, indicates a lack of self-discipline and often times instability. I like the lean and hungry look.

· If the veniremen have not lived in the county long, ask where they were born and reared. People from small towns and rural areas generally make good State’s jurors. People from the east or west coasts often make bad jurors.

· Intellectuals such as teachers, etc. generally are too liberal and contemplative to make good State’s jurors.

· Ask veniremen their religious preference. Jewish veniremen generally make poor State’s jurors. Jews have a history of oppression and generally empathize with the accused. Lutherans and Church of Christ veniremen usually make good State’s jurors.

The Supreme Court initially was reluctant to restrict the prosecutor’s right to use peremptory challenges to excuse jurors on the basis of race. In 1965 the Court ruled in Swain v. Alabama that the prosecutor’s use of peremptory challenges to strike all six African Americans in the jury pool did not violate the equal protection clause of the Constitution.57 The Court reasoned,

The presumption in any particular case must be that the prosecutor is using the State’s challenges to obtain a fair and impartial jury.... The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed from the jury or that they were removed because they were Negroes.58

The Court went on to observe that the Constitution did place some limits on the use of the peremptory challenge. The Justices stated that a defendant could establish a prima facie case of purposeful racial discrimination by showing that the elimination of African Americans from a particular jury was part of a pattern of discrimination in that jurisdiction.

The problem, of course, was that the defendants in Swain, and in the cases that followed, could not meet this stringent test. As Seymour Wishman observed, “A defense lawyer almost never has the statistics to prove a pattern of discrimination, and the state under the Swain decision is not required to keep them.”59 The ruling, therefore, provided no protection to the individual African American or Hispanic defendant deprived of a jury of his or her peers by the prosecutor’s use of racially discriminatory strikes. As Supreme Court Justice William Brennan later wrote:

With the hindsight that two decades affords, it is apparent to me that Swain’s reasoning was misconceived.... Swain holds that the state may presume in exercising peremptory challenges that only white jurors will be sufficiently impartial to try a Negro defendant fairly.... Implicit in such a presumption is profound disrespect for the ability of individual Negro jurors to judge impartially. It is the race of the juror, and nothing more, that gives rise to the doubt in the mind of the prosecutor.60

Despite harsh criticism from legal scholars and civil libertarians, who argued that Swain imposed a “crushing burden ... on defendants alleging racially discriminatory jury selection,”61 the decision stood for 21 years. It was not until 1986 that the Court, in Batson v. Kentucky, rejected Swain’s systematic exclusion requirement and ruled “that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor’s exercise of peremptory challenges at the defendant’s trial.”62 The justices added that once the defendant makes a prima facie case of racial discrimination, the burden shifts to the state to provide a racially neutral explanation for excluding African American jurors. (See Box 6.5 for a discussion of the use of the peremptory challenge to exclude African American jurors in cases involving white defendants.)

Although Batson seemed to offer hope that the goal of a representative jury was attainable, an examination of cases decided since 1986 suggests otherwise. State and federal appellate courts have ruled, for example, that leaving one or two African Americans on the jury precludes any inference of purposeful racial discrimination on the part of the prosecutor,63 and that striking only one or two jurors of the defendant’s race does not constitute a “pattern” of strikes.64

The Equal Protection Clause of the Fourteenth Amendment declares that “No State shall ... deny to any person within its jurisdiction the equal protection of the law.” Enacted in the wake of the Civil War, the Fourteenth Amendment was designed to protect the rights of the newly freed slaves. As Congressman Stevens, one of the amendment’s sponsors, stated, “Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford ‘equal’ protection to the black man” (Mason & Beancy, 1972, 379).

The Supreme Court has interpreted the equal protection clause to prohibit prosecutors from using their peremptory challenges in a racially discriminatory manner—that is, to forbid prosecutors from striking African Americans or Hispanics from the pool of potential jurors in cases involving African American and Hispanic defendants. But what about cases involving white defendants? Are prosecutors prohibited from using their challenges to strike racial minorities when the defendant is white?

The Supreme Court has ruled that white defendants can challenge the exclusion of racial minorities from the jury. In 1991, for example, the Court ruled that “a criminal defendant may object to the race-based exclusion of jurors effected through peremptory challenges regardless of whether the defendant and the excluded juror share the same race” (Powers v. Ohio, 499 U.S. 400 [1991]). This case involved a white criminal defendant on trial for homicide who objected to the prosecutor’s use of peremptory challenges to remove African Americans from the jury. In 1998, the Court handed down a similar decision regarding the grand jury, ruling that whites who are indicted by grand juries from which African Americans have been excluded can challenge the constitutionality of the indictment (Campbell v. Louisiana, 523 U.S. 392 [1998]).

In both of these cases, the Court stated that a white defendant has the right to assert a violation of equal protection on behalf of excluded African American jurors. According to the Court, the discriminatory use of peremptory challenges by the prosecution, “casts doubt upon the integrity of the judicial process and places the fairness of the criminal proceeding in doubt.” And, although an individual juror does not have the right to sit on any particular jury, “he or she does possess the right not to be excluded from one on account of race.” As the Court stated, “Both the excluded juror and the criminal defendant have a common interest in eliminating racial discrimination from the courtroom.” Because it is unlikely that the excluded juror will challenge the discriminatory use of the peremptory challenge, the defendant can assert this right on his or her behalf (Powers v. Ohio, 499 U.S. 400 [1991]).

What do you think? Should a white defendant be allowed to challenge the prosecutor’s use of peremptory challenges to exclude African Americans and other racial minorities from his or her jury?

Trial and appellate courts have also been willing to accept virtually any explanation offered by the prosecutor to rebut the defendant’s inference of purposeful discrimination.65 As Kennedy66 noted, “judges tend to give the benefit of the doubt to the prosecutor.” Kennedy cited as an example State v. Jackson, a case in which the prosecutor used her peremptory challenges to strike four African Americans in the jury pool. According to Kennedy,

The prosecutor said that she struck one black prospective juror because she was unemployed and had previously served as a student counselor at a university, a position that bothered the prosecution because it was “too liberal a background.” The prosecution said that it struck another black prospective juror because she, too, was unemployed, and, through her demeanor, had displayed hostility or indifference. By contrast, two whites who were unemployed were seated without objection by the prosecution.67

Although Kennedy acknowledged that “one should give due deference to the trial judge who was in a position to see directly the indescribable subtleties,” he stated that he “still has difficulty believing that, had these prospective jurors been white, the prosecutor would have struck them just the same.” Echoing these concerns, Brian J. Serr and Mark Maney conclude, “The cost of forfeiting truly peremptory challenges has yielded little corresponding benefit, as a myriad of ‘acceptable’ explanations and excuses cloud any hope of detecting racially based motivations.”68 (For a more detailed discussion of the peremptory challenge, see “Focus on an Issue: Should We Eliminate the Peremptory Challenge?”)

The validity of their concerns is illustrated by a 1995 Supreme Court case, Purkett v. Elem.69 Jimmy Elem, an African American on trial for robbery in Missouri, objected to the prosecutor’s use of peremptory challenges to strike two African American men from the jury panel. The prosecutor provided the following racially neutral explanation for these strikes:

I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury ... with the mustache and goatee type beard.... And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.70

The U.S. Court of Appeals for the Eighth Circuit ruled that the prosecutor’s reasons for striking the jurors were not legitimate race-neutral reasons because they were not plausibly related to “the person’s ability to perform his or her duties as a juror.” Thus, the trial court had erred in finding no intentional discrimination.

The Supreme Court reversed the Circuit Court’s decision, ruling that Batson v. Kentucky required only “that the prosecution provide a race-neutral justification for the exclusion, not that the prosecution show that the justification is plausible.” Noting that neither beards nor long, unkempt hair is a characteristic peculiar to any race, the Court stated that the explanation offered by the prosecutor, although it may have been “silly or superstitious,” was race-neutral. The trial court, in other words, was required to evaluate the genuineness of the prosecutor’s explanation, not its reasonableness. As the Court noted, “At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.”

The two dissenting judges—Justice Stevens and Justice Breyer—were outraged. They argued that the Court in this case actually overruled a portion of the opinion in Batson v. Kentucky. They stated that, the majority’s conclusions notwithstanding, Batson clearly required that the explanation offered by the prosecutor must be “related to the particular case to be tried.” According to Justice Stevens,

In my opinion, it is disrespectful to the conscientious judges on the Court of Appeals who faithfully applied an unambiguous standard articulated in one of our opinions to say that they appear “to have seized on our admonition in Batson ... that the reason must be ‘related to the particular case to be tried.’” Of course, they “seized on” that point because we told them to. The Court of Appeals was following Batson’s clear mandate. To criticize those judges for doing their jobs is singularly inappropriate.71

Justice Stevens went on to say, “Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how ‘implausible or fantastic,’ even if it is ‘silly or superstitious,’ is sufficient to rebut a prima facie case of discrimination.”

Critics of Batson and its progeny maintain that until the courts articulate and apply a more meaningful standard or eliminate peremptory challenges altogether (see In the Courts: Miller-El v. Dretke), “peremptory strikes will be color-blind in theory only.”72

In theory, the peremptory challenge is used to achieve a fair and impartial jury. The assumption is that each side will “size up” potential jurors and use its challenges “to eliminate real or imagined partiality or bias that may be based only on a hunch, an impression, a look, or a gesture” (Way 1980, 344). Thus, a prosecutor may routinely strike “liberal” college professors, whereas a defense attorney may excuse “prosecution-oriented” business executives. The result of this process, at least in principle, is a jury that will decide the case based on the evidence alone.

The reality is that both sides use their peremptory challenges to “stack the deck” (Levine 1992, 51). The prosecutor attempts to pick a jury that will be predisposed to convict, whereas the defense attorney attempts to select jurors who will be inclined to acquit. In other words, rather than choosing open-minded jurors who will withhold judgment until they have heard all of the evidence, each attorney attempts to pack the jury with sympathizers. According to one attorney, “Most successful lawyers develop their own criteria for their choices of jurors. Law professors, experienced lawyers, and a number of technical books suggest general rules to help select favorable jurors” [emphasis added] (Wishman 1986, 105).

Do Prosecutors Use Peremptory Challenges in a Racially Discriminatory Manner?

The controversy over the use of the peremptory challenge has centered on the prosecution’s use of its challenges to eliminate African Americans from juries trying African American defendants. It centers on what Justice Marshall called “the shameful practice of racial discrimination in the selection of juries” (Batson v. Kentucky, 479 U.S. 79 [1986]). Critics charge that the process reduces minority participation in the criminal justice system and makes it difficult, if not impossible, for racial minorities to obtain a “jury of their peers.” They assert that peremptory challenges “can transform even a representative venire into a white, middle-class jury,” thereby rendering “meaningless the protections provided to the venire selection process by Strauder and its progeny” (Serr & Maney 1988, 7–8).

There is substantial evidence that prosecutors exercise peremptory challenges in a racially discriminatory manner. A study of challenges issued in Calcasieu Parish, Louisiana, from 1976 to 1981, for example, found that prosecutors excused African American jurors at a disproportionately high rate (Turner, Lovell, Young, & Denny 1986, 61–69). Although the authors also found that defense attorneys tended to use their challenges to excuse whites, they concluded that “Because black prospective jurors are a minority in many jurisdictions, the exclusion of most black prospective jurors by prosecution can be accomplished more easily than the similar exclusion of Caucasian prospective jurors by defense” (Turner et al. 1986, 68; Hayden, Senna, & Seigel 1978).

African American defendants challenging their convictions by all-white juries also have produced evidence of racial bias. One defendant, for example, showed that Missouri prosecutors challenged 81 percent of the African American jurors available for trial in 15 cases with African American defendants (United States v. Carter, 528F.2d 844, 848 [CA 8 1975]). Another defendant presented evidence indicating that in 53 Louisiana cases involving African American defendants, federal prosecutors used more than two-thirds of their challenges against African Americans, who comprised less than one-fourth of the jury pool (United States v. McDaniels, 379 F. Supp. 1,243 [ED La. 1974]). A third defendant showed that South Carolina prosecutors challenged 82 percent of the African American jurors available for 13 trials involving African American defendants (McKinney v. Walker, 394 F. Supp. 1,015, 1,017–1,018 [SC 1974]). Evidence such as this supports Justice Marshall’s contention (in a concurring opinion in Batson v. Kentucky) that “Misuse of the peremptory challenge to exclude black jurors has become both common and flagrant” (Batson v. Kentucky, 106 Sct. 1712, 1726 [1986] [Marshall, J., concurring]).

Are All-White Juries Inclined to Convict African American Defendants?

Those who question the prosecutor’s use of peremptory challenges to eliminate African Americans from the jury pool argue that African American defendants tried by all-white juries are disproportionately convicted. They assert that white jurors take the race of the defendant and the race of the victim into account in deciding whether to convict the defendant.

Researchers have examined jury verdicts in actual trials and in mock jury studies for evidence of racial bias. Harry Kalven and Hans Zeisel (1966), for example, asked the presiding judge in more than 1,000 cases if he or she agreed with the jury’s verdict. Judges who disagreed with the verdict were asked to explain the jury’s behavior. Judges disagreed with the jury’s decision to convict the defendant in 22 cases; in four of these cases they attributed the jury’s conviction to prejudice against African American defendants involved in interracial sexual assault. Kalven and Zeisel also found that juries were more likely than judges to acquit African American defendants who victimized other African Americans.

Sheri Johnson (1985) argued, “Mock jury studies provide the strongest evidence that racial bias frequently affects the determination of guilt.” She reviewed nine mock jury studies in which the race of the defendant was varied while other factors were held constant. According to Johnson, white “jurors” in all of the studies were more likely to convict minority-race defendants than they were to convict white defendants (1,626).

One mock jury study found evidence of racial bias directed at both the defendant and the victim (Klein & Creech 1982, 21). In this study, white college students read two transcripts of four crimes in which the race of the male defendant and the race of the female victim were varied; they then were asked to indicate which defendant was more likely to be guilty. For the crime of rape, the probability that the defendant was guilty ranged from 70 percent for crimes with black offenders and white victims, to 68 percent for crimes with white offenders and white victims, 52 percent for crimes with black offenders and black victims, and 33 percent for crimes with white offenders and black victims (Klein & Creech 1982, 24).

Should the Peremptory Challenge be Eliminated?

Defenders of the peremptory challenge, although admitting that there is inherent tension between peremptory challenges and the quest for a representative jury, argue that the availability of peremptories ensures an impartial jury. Defenders of the process further argue that restricting the number of peremptory challenges or requiring attorneys to provide reasons for exercising them would make selection of an impartial jury more difficult. Those who advocate elimination of the peremptory challenge assert that prosecutors and defense attorneys can use the challenge for cause to eliminate biased or prejudiced jurors. They argue that because prosecutors exercise their peremptory challenges in a racially discriminatory manner, African American defendants are often tried by all-white juries predisposed toward conviction.

In a concurring opinion in the Batson case, Justice Marshall called on the Court to ban the use of peremptory challenges by the prosecutor and to allow states to ban their use by the defense (Batson v. Kentucky, 106 Sct. 1712, 1726 [1986] [Marshall, J., concurring]). Marshall argued that the remedy fashioned by the Court in Batson was inadequate to eliminate racial discrimination in the use of the peremptory challenge. He noted that a black defendant could not attack the prosecutor’s discriminatory use of peremptory challenges at all unless the abuse was “so flagrant as to establish a prima facie case,” and that prosecutors, when challenged, “can easily assert facially neutral reasons for striking a juror” (Batson v. Kentucky, at 1727).

Other commentators, who acknowledge that the solution proposed in Batson is far from ideal and that reform is needed, propose more modest reforms. Arguing that the chances for abolition of the peremptory challenge are slim, they suggest that a more feasible alternative would be to limit the number of challenges available to each side. As one legal scholar noted, “Giving each side fewer challenges will make it more difficult to eliminate whole groups of people from juries” (Note, Batson v. Kentucky 1988, 298). Another argued that courts must “enforce the prohibition against racially discriminatory peremptory strikes more consistently and forcefully than they have done thus far” (Kennedy 1997, 230). Another, more radical, suggestion is to allow each side to designate one or two prospective jurors who cannot be challenged peremptorily (see, for example, Ramirez 1998, 161).

Those who lobby for reform of the peremptory challenge maintain that the system would be fairer without them. As Morris B. Hoffman (2000) put it, “Imagine a jury selection process that sends the message to all 50 prospective jurors in the courtroom that this is a rational process. That we have rules for deciding who is fair and not fair, just as we have rules for deciding who prevails in the end and who does not.”

Miller-El v. Dretke (537 US 322 [2005])

In 1986 Thomas Joe Miller-El was convicted and sentenced to death by a Dallas County (Texas) jury composed of 11 whites and 1 African American. The jury found Miller-El, an African American, guilty of killing a hotel employee and severely wounding another during the course of a robbery. During jury selection, Miller-El challenged the prosecutor’s use of peremptory strikes against 10 of the 11 African Americans eligible to serve on the jury. He claimed that the strikes were based on race, citing as proof both the prosecutor’s questioning of potential jurors in his trial and the fact that the Dallas County District Attorney had a history of excluding African Americans from criminal juries. The Texas courts that heard his appeal ruled against him, stating that there was no evidence that the jurors were struck because of their race and that the race-neutral reasons given by the prosecutor were “completely credible and sufficient” (Miller-El v. State, 748 S. W. 2d 459 [1988]).

Following a round of appeals in the federal courts, all of which agreed with the state courts’ conclusions, Miller-El’s case reached the United States Supreme Court. In June 2005 the Supreme Court reversed Miller-El’s conviction, ruling 6–3 that there was strong evidence of racial prejudice during jury selection and that the state court’s conclusions were therefore “unreasonable as well as erroneous” (Miller-El v. Dretke, 537 US 322, 336 [2005]). Justice David H. Souter, writing for the majority, said, “The prosecutors’ chosen race-neutral reasons for the strikes do not hold up and are so far at odds with the evidence that pretext is the fair conclusion, indicating the very discrimination the explanations were meant to deny.” To support their conclusion, the justices cited the following evidence:

· Out of 20 African American members of the 108-person jury panel for Miller-El’s trial, only 1 served. Nine of the 20 were excused for cause; of the remaining 11 African Americans, 10 were peremptorily struck by the prosecution. As the court noted, “Happenstance is unlikely to produce this disparity.”

· The “racially neutral” reasons given by the prosecution to explain the strikes of African Americans applied just as well to whites who were not struck and, in some cases, mischaracterized the testimony of African Americans regarding such things as their willingness to impose the death penalty. In fact, the court stated that one of the African Americans who was struck expressed strong support of the death penalty and, therefore, should have been “an ideal juror in the eyes of a prosecutor seeking a death sentence.” The fact that he was struck, and that whites who expressed less support for the death penalty were not, “supports a conclusion that race was significant in determining who was challenged and who was not.” According to Justice Souter, “it blinks reality” to deny that some of the African America jurors were struck because of their race.

· Prosecutors repeatedly used their right to reshuffle the cards bearing potential jurors’ names to reseat the African Americans at the back of the panel, where they were less likely to be questioned during the voir dire (and more likely to be dismissed without being questioned). The prosecution did not offer a racially neutral reason for shuffling the jury. Justice Souter wrote, “At least two of the jury shuffles conducted by the state make no sense except as efforts to delay consideration of black jury panelists.”

· The questions posed to African American and white jurors during voir dire were different. Before asking potential jurors about their feelings regarding the death penalty, for example, prosecutors gave them a description of the death penalty. Ninety-four percent of the white jurors heard a bland description (“We anticipate that we will be able to present to a jury the quantity and type of evidence necessary to convict him of capital murder”), whereas more than half of the African American jurors heard a graphic description that described the method of execution in detail (“at some point Mr. Thomas Joe Miller-El—the man sitting right down there—will be taken ... to the death house and placed on a gurney and injected with a lethal substance until he is dead). The

Court concluded that the graphic script was used “to make a case for excluding black panel members opposed to or ambivalent about the death penalty.” Race, according to the court, “was the major consideration when the prosecution chose to follow the graphic script.”

The Supreme Court concluded that the evidence proffered by Miller-El, which clearly documented that prosecutors were selecting and rejecting potential jurors because of race, “is too powerful to conclude anything but discrimination.”

Less than one month after the Supreme Court handed down its decision, Dallas District Attorney Bill Hill announced that the state would retry Miller-El and would seek the death penalty. Instead, in March of 2008, Thomas Joe Miller-El pled guilty to murder and aggravated robbery; he was sentenced to life in prison on the murder charge and to 20 years on the aggravated robbery charge. In exchange for the district attorney’s agreement to not seek the death penalty, Miller-El waived his right to appeal his sentence.

Snyder v. Louisiana (552 U.S. 472 [2008])

Like Thomas Joe Miller-El, Allen Snyder, an African American, was convicted of first-degree murder and sentenced to death by an all-white jury. In this case, 36 prospective jurors survived the first stages of the jury selection process. Five of the 36 were African American and the prosecutor used 5 of his 12 peremptory challenges to eliminate them from the jury panel. On appeal, the Louisiana Supreme Court affirmed Snyder’s conviction and Snyder then filed for a writ of certiorari with the United States Supreme Court. While his petition was pending before the Court, Miller-El v. Dretke was decided.

In Snyder v. Louisiana, the Supreme Court reiterated that “The Constitution forbids striking even a single prospective juror for a discriminatory purpose.” The Court concluded that the prosecutor’s decision to strike one juror, Jeffrey Brooks, had been racially motivated. The justices noted that when the defense attorney objected to the strike of Mr. Brooks, a college senior, the prosecutor offered two “race-neutral” reasons for the strike:

I thought about it last night. Number 1, the main reason is that he looked very nervous to me throughout the questioning. Number 2, he’s one of the fellows that came up at the beginning [of voir dire] and said he was going to miss class. He’s a student teacher. My main concern is for that reason, that being that he might, to go home quickly, come back with guilty of a lesser verdict so there wouldn’t be a penalty phase. Those are my two reasons.

In ruling that the prosecutor’s rationale did not meet the requirements of Batson, the Supreme Court focused on the second reason proffered. The Court stated that the scenario outlined by the prosecutor was “highly speculative,” noting that if Mr. Brooks had wanted to ensure a quick resolution of the case, he would not necessarily have rejected a first-degree murder charge. Rather, if the majority of jurors had initially voted to convict Snyder of first-degree murder, “Mr. Brooks’ purported inclination might have led him to agree in order to speed the deliberations.” The Court also noted that the prosecutor did not excuse a white juror who was self-employed and who stated that serving on the jury would be a personal and financial hardship. According to the justices, “If the prosecution had been sincerely concerned that Mr. Brooks would favor a lesser verdict than first-degree murder in order to shorten the trial, it is hard to see why the prosecution would not have had at least as much concern regarding Mr. Laws.” The Supreme Court concluded that “the prosecution’s pretextual explanation gives rise to an inference of discriminatory intent.”

As these two recent cases reveal, the issue of racial discrimination in the use of the peremptory challenge has not been laid to rest.

In August of 2010 the Equal Justice Initiative, a non-profit legal organization headquartered in Montgomery, Alabama, released a report entitled, Illegal Racial Discrimination in Jury Selection: A Continuing Legacy.73 The report, which detailed the results of an investigation of jury selection procedures in eight southern states (Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, South Carolina, and Tennessee), was highly critical of the role that race continued to play in the jury selection process in the twenty-first century. In fact, Bryan A. Stevenson, Executive Director of the Initiative, began the executive summary of the report by noting,

Today in America, there is perhaps no arena of public life or governmental administration where racial discrimination is more widespread, apparent, and seemingly tolerated than in the selection of juries. Nearly 135 years after Congress enacted the 1875 Civil Rights Act to eliminate racially discriminatory jury selection, the practice continues, especially in serious criminal and capital cases.74

The authors of the report were particularly critical of the prosecutor’s use of the peremptory challenge, which they argued led to dramatic underrepresentation of racial minorities on juries in criminal cases. In support of this, they presented the following statistics:

· From 2005 to 2009 prosecutors in Houston County, Alabama, used their peremptory challenges to remove 80 percent of the African Americans qualified for jury service in cases in which the death penalty was eventually imposed. Although the county is 27 percent African American, half of the juries in these cases were all-white and the remainder had only one African American juror.75

· Prosecutors in the Chattahoochee (Georgia) Judicial Circuit used 83 percent of their peremptory challenges to strike African American potential jurors.76

· The “racially neutral” reasons that prosecutors give for striking African Americans from the jury often reflect stereotypes about African Americans’ demeanor, appearance, and behavior. For example, in a South Carolina case the prosecutor stated that he struck an African American because he “shucked and jived” as he walked, and a Louisiana court allowed the prosecutor to strike an African American juror because he “looked like a drug dealer.”77

· Racially tainted jury selection procedures led to the reversal of convictions in 80 cases in Alabama, 33 convictions in Florida, 12 convictions in Louisiana, and 10 convictions in Mississippi and Arkansas.78 In fact, as recently as 2008, the United States Supreme Court reversed a criminal conviction in a death penalty case in Louisiana because the prosecutor used the peremptory challenge to eliminate all five of the potential African American jurors.79

· Although more than 100 criminal defendants in Tennessee have challenged their convictions based on prosecutors’ use of race in exercising peremptory challenges, appellate courts in that state have never reversed a conviction because of racial discrimination in jury selection, due in large part to the fact that courts there “tend to accept at face value prosecutors’ explanations for striking jurors of color.”80

· Most district attorneys in the United States—and in the eight southern states examined for the report—are white. When the report was written, there were no African American district attorneys in Arkansas, Florida, or Tennessee.81

Noting that racially discriminatory jury selection procedures violate the constitutional rights of African American potential jurors and call into question “the credibility, reliability, and integrity of the criminal justice system,”82 the authors of the report called for “coordinated efforts to eliminate illegal exclusion and discrimination in jury selection.”83 More specifically, they recommended, among other things, (1) more consistent enforcement of antidiscrimination laws designed to preclude racially biased jury selection; (2) that the Batson rule banning racially discriminatory use of peremptory challenges be applied retroactively to death row inmates or other offenders facing long prison sentences whose claims have not been reviewed because they were tried prior to 1986; (3) prosecutors who engage in racially biased jury selection should be held accountable and should not be able to participate in the retrial of any person whose conviction was overturned as a result of discrimination in jury selection; and (4) jurisdictions should enact or strengthen policies designed to ensure that racial minorities are fairly represented in the jury pool.84 As the Executive Director of the Initiative concluded, the problem of illegal bias in jury selection “has persisted for far too long, and respect for the law cannot be achieved until it is eliminated and equal justice for all becomes a reality.”85

In summary, there is incontrovertible evidence that the reforms implemented since the Scottsboro boys were tried, convicted, and sentenced to death by all-white juries have reduced racial discrimination in the jury selection process. Decisions handed down by the Supreme Court have made it difficult, if not impossible, for courts to make “no pretense of putting Negroes on jury lists, much less calling or using them in trials.”86 However, as the Equal Justice Initiative report and the other evidence presented in this chapter makes clear, the jury selection process remains racially biased. There is compelling evidence that prosecutors continue to use the peremptory challenge to exclude African American and Hispanic jurors from cases with African American and Hispanic defendants and that appellate courts continue to rule that their “racially neutral” explanations adequately meet the standards articulated in Batson. Supreme Court decisions notwithstanding, the peremptory challenge remains an obstacle to impartiality.

In the next section, we turn our attention to the issue of wrongful convictions, noting that race and mistaken eyewitness identification combine to produce an especially high rate of exonerations of African Americans accused of rape. This is followed by a discussion of “playing the race card in a criminal trial.”

During the past two decades, the issue of wrongful convictions has appeared on the national political agenda. Highly publicized exonerations of individuals convicted of murder, sexual assault, and other serious crimes have led to questions about the accuracy and fairness of the procedures used to investigate and adjudicate criminal cases. These concerns are based in part on the fact that a large number of the exonerees, many of whom were facing sentences of death or life in prison, were freed as a result of DNA tests that either were unavailable or were deemed unnecessary when their cases were being investigated and tried; this, in turn, has led some critics to suggest that the documented cases of wrongful conviction are only “the tip of the iceberg.”87 Concerns about false convictions also are based on research showing not only that a disproportionate number of those exonerated have been racial minorities but also that the disparity is particularly stark in cases of interracial sexual assault.88 Together, these concerns have raised questions about the legitimacy and integrity of the criminal justice process (see Box 6.6 for additional evidence of the overrepresentation of racial minorities among those who have been exonerated as a result of DNA evidence).

In 1989 a Cook County (Chicago) Circuit Judge vacated Gary Dotson’s conviction for rape and dismissed the charges against him. Dotson thus became the first prisoner in the United States to be exonerated by DNA identification technology. As the technology improved and became more widely available, the number of DNA exonerations increased, from 1 or 2 a year in the early 1990s, to about 6 per year in the mid-1990s, to an average of 20 per year from 2000 to 2009. By the end of 2009, there had been 259 post-conviction DNA exonerations—152 (58.9 percent) of the exonerees were African American, 71 (27.5 percent) were white, and 21 (8.1 percent) were Hispanic.

Although the percentages of African Americans, Hispanics, and whites who were exonerated for all crimes were similar to the percentages of each group incarcerated in state prisons, this was not the case for rape. In 2002, 58 percent of all people incarcerated for rape were white, 29 percent were African American, and 13 percent were Hispanic. Among defendants who were convicted of rape but later exonerated, the percentages were reversed: 64 percent were African American, 28 percent were white, and 7 percent were Hispanic. African Americans, in other words, comprised only 29 percent of all persons incarcerated for rape but 64 percent of all defendants exonerated for rape.91

The authors of this study suggested that the key to the explanation for the overrepresentation of African Americans among defendants falsely convicted for rape “is probably the race of the victim.”92 As they pointed out, the race of the victim was known in 52 of the 69 exonerations of African Americans for rape. In 78 percent of these cases, the victim was white. As they noted, “Inter-racial rape is uncommon, and rapes of white women by black men in particular account for well under 10 percent of all rapes. But among rape exonerations for which we know the race of both parties, almost exactly half (39/80) involve a black man who was falsely convicted of raping a white woman.”93

The authors, who admitted that there were many possible explanations for this finding, stated that the “most obvious explanation for this racial disparity is probably also the most powerful: the perils of cross-racial identification.”94 Almost all of the exonerations in the interracial rape cases included in their study were based at least in part on eyewitness misidentification.

There is substantial evidence that cross-racial eyewitness identifications, and particularly eyewitness identifications of African Americans by whites, are unreliable.95 What seems to happen, then, is that a white victim of a rape case mistakenly identifies an African American as the perpetrator of the crime, the defendant is found guilty at trial based at least in part on the eyewitness identification, and the defendant is exonerated when DNA evidence reveals that he was not the man who committed the crime.

In 1994 O. J. Simpson, an African American actor and former All-American football star, was accused of murdering his ex-wife, Nicole Brown Simpson, and Ronald Goldman, a friend of hers. On October 4, 1995, a jury composed of eight African American women, two white women, one Hispanic man, and one African American man acquitted Simpson of all charges. Many commentators attributed Simpson’s acquittal at least in part to the fact that his attorney, Johnnie L. Cochran, Jr., had “played the race card” during the trial. In fact, another of Simpson’s attorneys, Robert Shapiro, charged that Cochran not only played the race card but he also “dealt it from the bottom of the deck.”96

Cochran was criticized for attempting to show that Mark Fuhrman, a Los Angeles police officer who found the bloody glove that linked Simpson to the crime, was a racist who planted the evidence in an attempt to frame Simpson. He also was harshly criticized for suggesting during his closing argument that the jurors would be justified in nullifying the law by acquitting Simpson. Cochran encouraged the jurors to take Fuhrman’s racist beliefs into account during their deliberations. He urged them to “send a message” to society that “we are not going to take that anymore.”97

Although appeals to racial sentiment—that is, “playing the race card”—are not unusual in U.S. courts, they are rarely used by defense attorneys representing African Americans accused of victimizing whites. Much more typical are prosecutorial appeals to bias. Consider the following examples:

· An Alabama prosecutor, who declared, “Unless you hang this Negro, our white people living out in the country won’t be safe.”98

· A prosecutor in North Carolina, who dismissed as implausible the claim of three African American men that the white woman they were accused of raping had consented to sex with them. The prosecutor stated that “the average white woman abhors anything of this type in nature that had to do with a black man.”99

· A prosecutor in a rape case involving an African American man and a white woman who asked the jurors, “Gentlemen, do you believe that she would have had intercourse with this black brute?”100

· A prosecutor in a case involving the alleged kidnapping of a white man by two African American men, who said in his closing argument that “not one white witness has been produced” to rebut the victim’s testimony [emphasis added].101

· A prosecutor who stated, during the penalty phase of a capital case involving Walter J. Blair, an African American man charged with murdering a white woman, “Can you imagine [the victim’s] state of mind when she woke up at 6 o’clock that morning, staring into the muzzle of a gun held by this black man?”102

All of these appeals to racial sentiment, with the exception of the last, resulted in reversal of the defendants’ convictions. A federal court of appeals, for example, ruled in 1978 that the North Carolina prosecutor’s contention that a white woman would never consent to sex with an African American man was a “blatant appeal to racial prejudice.” The court added that when such an appeal involves an issue as “sensitive as consent to sexual intercourse in a prosecution for rape ... the prejudice engendered is so great that automatic reversal is required.”103

A federal court of appeals, however, refused to reverse Walter Blair’s conviction and death sentence. Its refusal was based on the fact that Blair’s attorney failed to object at trial to the prosecutor’s statement. The sole dissenter in the case suggested that the court should have considered whether the defense attorney’s failure to object meant that Blair had been denied effective assistance of counsel. He also vehemently condemned the prosecutor’s statement, which he asserted “played upon white fear of crime and the tendency of white people to associate crime with blacks.”104

According to Harvard law professor Randall Kennedy, playing the race card in a criminal trial is “virtually always morally and legally wrong.” He asserted that doing so encourages juries to base their verdicts on irrelevant considerations and loosens the requirement that the state prove the case beyond a reasonable doubt. As he noted, “Racial appeals are not only a distraction but a menace that can distort interpretations of evidence or even seduce jurors into believing that they should vote in a certain way irrespective of the evidence.”105 (Further evidence of this is presented in Box 6.7, which discusses the role that racial and cultural stereotypes played in recent cases involving defendants and victims of Hmong descent.) As the case discussed in the “Focus on an Issue: The Lynching of an Innocent Man and Defiance of the U.S. Supreme Court” makes clear, appeals to racial bias also can seduce individuals into believing that they have a right to take matters into their own hands.106

A basic tenet of criminal law is that individuals are entitled to equal treatment at trial and that juries should not be asked to convict someone because of that person’s race, color, creed, or national origin. As the United States Court of Appeals for the Second Circuit ruled in 1973, use of racial stereotyping “negates the defendant’s right to be tried on the evidence in the case and not on extraneous issues ... [and] helps further embed the already too deep impressions in public consciousness that there are two standards for justice in the United States. One for Whites and the other for Blacks” (United States ex rel. Haynes v. McKendrick, 481 F.2d 152 (2d. Cir. 1973).

In an article published in the Hamline Law Review, William E. Martin and Peter N. Thompson illustrate the use of racial stereotyping in cases of sexual assault tried in Minnesota courts that involved victims and defendants of Hmong descent. In three different cases, prosecutors were allowed to introduce testimony regarding cultural stereotypes to discredit the defendant’s consent defenses (that is, the defendants in these cases asserted that the victim had consented to the sexual acts). In one case, for example, the prosecutor introduced expert testimony to establish that cultural values would preclude Hmong women from consenting to have sex with a person other than her spouse. At trial this prosecutor argued that the jurors should consider the expert witnesses’ testimony that in the Hmong culture,

... it is not proper for a women to initiate sex, even with her husband. It is not proper for a woman to touch a man. It is not proper for a woman to kiss a man, and especially in public. There are cultural taboos you heard, even about being alone with a man not of your own class. Ask yourself if the woman you saw here is the kind of vixen that this defendant describes. The kind of vixen she would have to be [to be] so outside her own culture in behavior.

The defendant appealed his conviction, arguing that the use of cultural stereotypes was improper; his attorney compared the state’s contention that a Hmong woman would not initiate sex to the oft-made but discredited argument that a white woman would never consent to sex with a black man because of cultural norms.

The Minnesota Court of Appeals upheld the defendant’s conviction, noting that the prosecutor attempted to differentiate the victim and the defendant “by their social status and educational level not by social or cultural factors.” However, as Martin and Thompson pointed out, even if the argument was an appeal to class bias or social status bias, it was nonetheless improper. Federal courts have ruled that appeals to class prejudice, like appeals to racial bias, will not be allowed in the courtroom.

The authors of this article criticize the decisions of the Minnesota court, arguing that “the fundamental values of our trial system require that persons be tried for the acts they commit, not for the supposed cultural characteristics that determine who they are.”

SOURCE: William E. Martin and Peter N. Thompson, “Judicial Tolerance of Racial Bias in the Minnesota Justice, System,” Hamline Law Review 25 (2001–2002), pp. 236–270, pp. 253–259.

On January 23, 1906, Nevada Taylor, a 21-year-old white woman who worked as a bookkeeper for a shop in Chattanooga, Tennessee, was sexually assaulted after she got off the trolley near the home she shared with her father and her brothers and sisters (Curriden & Phillips 1999). Taylor did not see her attacker and initially could describe him only as about her height and dressed in a black outfit and a hat. When asked by Hamilton County Sheriff Joseph Shipp if her attacker was “a white man or a Negro,” she first said that she did not know, that she had not gotten a good look at him. She then changed her mind, stating that she believed the man was black (Curriden & Phillips 1999, 31).

The next day, the Chattanooga News reported the attack in a story with the headline “Brutal Crime of Negro Fiend.” According to the News, “The fiendish and unspeakable crime committed in St. Elmo last night by a Negro brute, the victim being a modest, pretty, industrious and popular girl, is a sample of the crimes which heat southern blood to the boiling point and prompt law abiding men to take the law into their own hands and mete out swift and horrible punishment” (Curriden & Phillips 1999, 33).

There were no clues as to the identity of the suspect, other than a leather strap found at the scene of the crime. A reward of $375—more money than many people in Chattanooga earned in a year—was offered for information leading to the arrest of Taylor’s attacker. Two days later, a man by the name of Will Hixson called Sheriff Shipp, asked if the reward was still available, and stated that he had seen a black man near the trolley station on the evening in question. He told Sheriff Shipp that he thought he could identify the man, and later that afternoon he fingered Ed Johnson.

Ed Johnson denied the allegations, stating that he had been at work at the Last Chance Saloon that afternoon and evening. He gave the sheriff the names of witnesses, most of whom were black, who could vouch for him. Despite the fact that there was no evidence, other than Hixson’s identification, linking him to the crime and that he had an alibi, Johnson was arrested and charged with the rape of Nevada Taylor.

As news of Johnson’s arrest spread, a mob began to gather at the jail. Within hours, more than 1,500 people had congregated, and many of them were urging the jailers to turn Johnson over to them. When informed by Hamilton County Criminal Court Judge Sam D. McReynolds that Johnson was no longer in Chattanooga, that he had been transported to Knoxville for safekeeping until trial, the crowd dispersed. As Curriden & Phillips (1999, 50) noted, the leaders of the mob “had put Sheriff Shipp and Judge McReynolds on notice: convict and punish this Negro quickly or they would be back.”

Seventeen days after the attack on Nevada Taylor, a jury of 12 white men found Ed Johnson, who had steadfastly insisted that he was innocent, guilty of rape. The trial was replete with references to the fact that Johnson was black and his victim was white. The prosecutor, for example, asked Taylor to point out “the Negro brute” who assaulted her. Taylor pointed to Ed Johnson, who was the only black person in the courtroom. The prosecutor trying the case concluded his final argument by stating that the jurors should “Send that black brute to the gallows and prove to the world that in Chattanooga and Hamilton County the law of the country does not countenance such terrible crimes, has not ceased to mete out the proper punishment for such horrible outrages” (Curriden & Phillips 1999, 118).

The judge in the case also allowed the people in the audience—and the jurors—to express their opinions about the case and about Ed Johnson. When Johnson testified, the pro-prosecution spectators booed and heckled him. The audience cheered when prosecutors made a point and hissed and jeered when the defense objected. At one point in the trial, one of the jurors leaped to his feet, pointed at Johnson, and yelled, “If I could get at him, I’d tear his heart out right now” (Curriden & Phillips 1999, Chap. 5).

Judge McReynolds sentenced Ed Johnson to die and scheduled his execution for March 13, 1906. When Johnson’s attorneys announced that they did not intend to appeal his conviction, two prominent local African American attorneys stepped in and filed a motion for a new trial. Noah Parden and Styles Hutchins believed that the evidence did not support a conviction and that there had been numerous violations of Johnson’s constitutional rights. After their motion for a new trial was denied, they appealed to the Tennessee Supreme Court, which ruled that there had been “no serious errors” in the case.

Parden and Hutchins then appealed to the U.S. District Court, arguing that Johnson had not received a fair trial. District Court Judge C. D. Clark ruled that although “there was great haste in this trial” and “counsel were to an extent terrorized on account of the fear of a mob,” the district court had no authority to intervene. The problem, according to Judge Clark, was that the right to a fair trial guaranteed by the Sixth Amendment did not apply to state-court cases. Nonetheless, Judge Clark did issue a stay of execution to allow Johnson’s lawyers to appeal to the U.S. Supreme Court (Curriden & Phillips 1999, 168).

In a precedent-setting decision, the Supreme Court decided to intervene in the case. On March 18, 1906, Supreme Court Justice John M. Harlan sent a telegram to Judge Clark announcing that the court would hear Johnson’s appeal. The Court also sent a telegram to Sheriff Shipp and Judge McReynolds informing them that Johnson’s execution was to be stayed pending the outcome of his appeal.

The citizens of Chattanooga were outraged that “people in Washington, DC” were interfering in the case and telling them how to run their court system. The Chattanooga News issued what amounted to a call to arms, predicting that mob violence would result if “by legal technicality the case is prolonged and the culprit finally escapes” (Curriden & Phillips 1999, 197).

On March 19, the newspaper’s prediction of violence came true. A mob gathered at the jail and, led by 25 determined men, bashed in the doors of the jail, grabbed Johnson from his cell, and dragged him through town to the bridge that spanned the Tennessee River. The leaders of the mob urged Johnson to confess. Instead, he repeated his claim of innocence, stating, “I am going to tell the truth. I am not guilty.” His words enraged the crowd, and as they prepared to hang him from the bridge, Ed Johnson uttered his last words, “God bless you all. I am innocent” (Curriden & Phillips 1999, 210–214).

Although the citizens of Chattanooga blamed the lynching of Ed Johnson on the interference of the federal courts, the justices of the Supreme Court, and especially Justices Harlan and Holmes, were outraged that their order staying the execution had been ignored. President Theodore Roosevelt also condemned the lynching, which he called “contemptuous of the court” and “an affront to the highest tribunal in the land that cannot go by without proper action being taken.” As Justice Harlan told the Washington Post, “the mandate of the Supreme Court has for the first time in the history of the country been openly defied by a community” (Curriden & Phillips 1999, 222).

The events that transpired next shocked the citizens of Chattanooga. In May 1906, the U.S. Department of Justice charged Sheriff Shipp, his deputies, and the ringleaders of the lynch mob with contempt of court. In December of that year, the Supreme Court announced that it had jurisdiction in the case and that the justices, sitting as a trial court, would determine the fate of the defendants. According to Curriden & Phillips (1999, 284), the Supreme Court was sending a message “that its authority was supreme” and that defiance of its orders “would not and could not be tolerated.”

Although charges were eventually dropped against 17 of the 26 defendants and three of the remaining nine were found not guilty, the Supreme Court found Sheriff Shipp, one of his deputies, and four members of the lynch mob guilty of contempt of court. Shipp and two members of the mob were sentenced to 90 days in prison; the others received sentences of 60 days. Noah Parden, the lawyer who filed the appeal with the Supreme Court, told the Atlanta Independent that the court’s actions sent an important message. “We are at a time,” he said, “when many of our people have abandoned the respect for the rule of law due to the racial hatred deep in their hearts and souls, and nothing less than our civilized society is at stake” (Curriden & Phillips 1999, 336).

Ninety-four years later, Hamilton County Criminal Court Judge Doug Meyer overturned Johnson’s conviction. “It really is hard for us in the White community to imagine how badly Blacks were treated at that time,” said Judge Meyer. “Something I don’t believe the White community really understands is that, especially at that time, the object was to bring in a Black body, not necessarily the person who had committed the crime. And I think that’s what happened in this case. There was a rush to find somebody to convict and blame.”107 The attorney who filed the petition to overturn Johnson’s conviction was Leroy Phillips, one of the co-authors of Contempt of Court.

In a provocative essay published in the Yale Law Journal shortly after O. J. Simpson’s acquittal, Paul Butler, an African American professor of law at George Washington University Law School, argued for “racially based jury nullification”108—that is, he urged African American jurors to refuse to convict African American defendants accused of nonviolent crimes, regardless of the strength of the evidence mounted against them. According to Butler, “it is the moral responsibility of black jurors to emancipate some guilty black outlaws.”109

Jury nullification, which has its roots in English common law, occurs when a juror believes that the evidence presented at trial establishes the defendant’s guilt but nonetheless votes to acquit. The juror’s decision may be motivated either by a belief that the law under which the defendant is being prosecuted is unfair or by an objection to the application of the law to a particular defendant. In the first instance, a juror might refuse to convict a defendant tried in federal court for possession of more than 50 grams of crack cocaine, based on her belief that the draconian penalties mandated by the law are unfair. In the second instance, a juror might vote to acquit a father charged with child endangerment after his 2-year-old daughter, who was not restrained in a child safety seat, was thrown from the car and killed when he lost control of his car on an icy road. In this case, the juror does not believe that the law itself is unfair, but, rather, that the defendant has suffered enough and that nothing will be gained by additional punishment.

Jurors clearly have the power to nullify the law and to vote their conscience. If a jury votes unanimously to acquit, the double jeopardy clause of the Fifth Amendment prohibits reversal of the jury’s decision. The jury’s decision to acquit, even in the face of overwhelming evidence of guilt, is final and cannot be reversed by the trial judge or by an appellate court. In most jurisdictions, however, jurors do not have to be told that they have the right to nullify the law.110

Butler’s position on jury nullification is that the “black community is better off when some nonviolent lawbreakers remain in the community rather than go to prison.”111 Arguing that there are far too many African American men in prison, Butler suggested that there should be “a presumption in favor of nullification”112 in cases involving African American defendants charged with nonviolent, victimless crimes like possession of drugs. Butler claimed that enforcement of these laws has a disparate effect on the African American community and does not “advance the interest of black people.”113 He also suggested that white racism, which “creates and sustains the criminal breeding ground which produces the black criminal,”114 is the underlying cause of much of the crime committed by African Americans. He thus urged African American jurors to “nullify without hesitation in these cases.”115

Butler did not argue for nullification in all types of cases. In fact, he asserted that defendants charged with violent crimes such as murder, rape, and armed robbery should be convicted if there is proof beyond a reasonable doubt of guilt. He contended that nullification is not morally justifiable in these types of cases because “people who are violent should be separated from the community, for the sake of the nonviolent.”116 Violent African American offenders, in other words, should be convicted and incarcerated to protect potential innocent victims. Butler was willing to “write off” these offenders based on his belief that the “black community cannot afford the risks of leaving this person in its midst.”117

The more difficult cases, according to Butler, involve defendants charged with nonviolent property offenses or with more serious drug-trafficking offenses. He discussed two hypothetical cases, one involving a ghetto drug dealer and the other involving a thief who burglarizes the home of a rich family. His answer to the question “Is nullification morally justifiable here?” is “It depends.”118 Although he admitted that “encouraging people to engage in self-destructive behavior is evil” and that therefore most drug dealers should be convicted, he argued that a juror’s decision in this type of case might rest on the particular facts in the case. Similarly, although he is troubled by the case of the burglar who steals from a rich family because the behavior is “so clearly wrong,” he argued that the facts in the case—for example, a person who steals to support a drug habit—might justify a vote to acquit. Nullification, in other words, may be a morally justifiable option in both types of cases.

Randall Kennedy119 raised a number of objections to Butler’s proposal, which he characterized as “profoundly misleading as a guide to action.”120 Although he acknowledged that Butler’s assertion that there is racial injustice in the administration of the criminal law is correct, Kennedy nonetheless objected to Butler’s portrayal of the criminal justice system as a “one-dimensional system that is totally at odds with what black Americans need and want, a system that unequivocally represents and unrelentingly imposes ‘the white man’s law.’”121 Kennedy faulted Butler for his failure to acknowledge either the legal reforms implemented as a result of struggles against racism or the significant presence of African American officials in policymaking positions and the criminal justice system. The problems inherent in the criminal justice system, according to Kennedy, “require judicious attention, not a campaign of defiant sabotage.”122

Kennedy objected to the fact that Butler expressed more sympathy for nonviolent African American offenders than for “the law-abiding people compelled by circumstances to live in close proximity to the criminals for whom he is willing to urge subversion of the legal system.”123 He asserted that law-abiding African Americans “desire more rather than less prosecution and punishment for all types of criminals,”124 and suggested that, in any case, jury nullification “is an exceedingly poor means for advancing the goal of a racially fair administration of criminal law.”125 He claimed that a highly publicized campaign of jury nullification carried on by African Americans will not produce the social reforms that Butler demands. Moreover, such a campaign might backfire. Kennedy suggested that it might lead to increased support for proposals to eliminate the requirement that the jury be unanimous in order to convict, restrictions on the right of African Americans to serve on juries, or widespread use of jury nullification by white jurors in cases involving white-on-black crime.

According to Kennedy, the most compelling reason to oppose Butler’s call for racially based jury nullification is that it is based on “an ultimately destructive sentiment of racial kinship that prompts individuals of a given race to care more about ‘their own’ than people of another race.”126 He objected to the implication that it is proper for African American jurors to be more concerned about the fate of African American defendants than white defendants, more disturbed about the plight of African American communities than white communities, and more interested in protecting the lives and property of African American than white citizens. “Along that road,” according to Kennedy, “lies moral and political disaster.” Implementation of Butler’s proposal, Kennedy insisted, would not only increase but also legitimize “the tendency of people to privilege in racial terms ‘their own.’”127

In Chapter 5, we concluded that the reforms implemented during the past few decades have substantially reduced racial discrimination during the pretrial stages of the criminal justice process. Our examination of the jury selection process suggests that a similar conclusion is warranted. Reforms adopted voluntarily by the states or mandated by appellate courts have made it increasingly unlikely that African American and Hispanic defendants will routinely be tried by all-white juries.

An important caveat, however, concerns the use of racially motivated peremptory challenges. As the recent report by the Equal Justice Initiative demonstrates, the peremptory challenge stands in the way of a racially neutral jury selection process. Supreme Court decisions notwithstanding, prosecutors still manage to use the peremptory challenge to eliminate African Americans and Hispanics from juries trying African American and Hispanic defendants. More troubling, prosecutors’ “racially neutral” explanations for strikes alleged to be racially motivated, with few exceptions, continue to be accepted at face value. Coupled with anecdotal evidence that prosecutors are not reluctant to “play the race card” in a criminal trial, these findings regarding jury selection suggest that the process of adjudication, like the pretrial process, is not free of racial bias.

Based on the research reviewed in this chapter and the previous one, we conclude that contemporary court processing decisions are not characterized by systematic discrimination against racial minorities. This may have been true at the time that the Scottsboro Boys and Ed Johnson were tried, but it is no longer true. As we have shown, the U.S. Supreme Court has consistently affirmed the importance of protecting the rights of criminal defendants and has insisted that the race and ethnicity of the defendant not be taken into consideration in making case processing decisions. Coupled with reforms adopted voluntarily by the states, these decisions make systematic racial discrimination unlikely.

We are not suggesting, however, that these reforms have produced an equitable, or color-blind, system of justice. We are not suggesting that contemporary court processing decisions reflect pure justice. Researchers have demonstrated that court processing decisions in some jurisdictions reflect racial discrimination, whereas decisions in other jurisdictions are racially neutral. Researchers also have shown that African Americans and Hispanics who commit certain types of crimes are treated more harshly than whites and that being unemployed, having a prior criminal record, or being detained prior to trial may have a more negative effect on court outcomes for people of color than for whites.

These findings lead us to conclude that discrimination against African Americans and other racial minorities is not universal but is confined to certain types of cases, certain types of settings, and certain types of defendants. We conclude that the court system of today is characterized by contextual discrimination.

Race and Sentencing: In Search of Fairness and Justice

We must confront another reality. Nationwide, more than 40 percent of the prison population consists of African American inmates. About 10 percent of African American men in their mid-to-late 20s are behind bars. In some cities, more than 50 percent of young African American men are under the supervision of the criminal justice system ... Our resources are misspent, our punishments too severe, our sentences too long.

JUSTICE ANTHONY KENNEDY, SPEAKING AT THE AMERICAN BAR ASSOCIATION, AUGUST 2003

Goals of the Chapter

In this chapter, we address the issue of racial disparity in sentencing. Our purpose is not simply to add another voice to the debate over the existence of racial discrimination in the sentencing process. Although we do attempt to determine whether racial minorities are sentenced more harshly than whites, we believe that this is a theoretically unsophisticated and incomplete approach to a complex phenomenon. It is overly simplistic to assume that racial minorities will receive harsher sentences than whites regardless of the nature of the crime, the seriousness of the offense, the culpability of the offender, or the characteristics of the victim. The more interesting question is “When does race matter?” It is this question that we attempt to answer.

After you have read this chapter:

1. You should be able to explain why racial disparity in sentencing does not necessarily signal the presence of racial discrimination in sentencing and to discuss the five explanations for racial disparities in sentencing.

2. You should be able to clarify why crime seriousness and prior criminal record are not necessarily racially neutral factors.

3. You should be able to discuss and evaluate the conclusions of recent reviews of research investigating the effects of race/ethnicity on sentencing.

4. You should be able to answer the question “When does race (and ethnicity) matter in sentencing?”

5. You should be able to explain why some researchers argue that race/ethnicity, age, and sex are a “volatile combination” in the context of sentencing decisions.

6. You should be able to discuss differences in research findings regarding sentences imposed on whites and those imposed on African Americans, Hispanics, Asian Americans, and Native Americans.

7. You should be able to explain how the race of the victim affects sentencing decisions.

8. You should be able to discuss the focal concerns perspective and explain how judges’ focal concerns may lead to unwarranted disparities in sentencing.

9. You should be able to explain the difference between direct and indirect race effects.

10. You should be able to evaluate competing arguments regarding similarities and differences in the sentencing decisions of African American and white judges.

11. You should be able to discuss the crack–powder cocaine disparity, explain its relationship to racial/ethnic disparities in sentencing, and explain how it was recently modified by Congress.

In 2004 the United States celebrated the fiftieth anniversary of Brown v. Board of Education, the landmark Supreme Court case that ordered desegregation of public schools. Also in 2004 the Sentencing Project issued a report entitled “Schools and Prisons: Fifty Years after Brown v. Board of Education.”1 The report noted that, whereas many institutions in society had become more diverse and more responsive to the needs of people of color in the wake of the Brown decision, the American criminal justice system had taken “a giant step back-ward.”2 To illustrate this, the report pointed out that in 2004 there were nine times as many African Americans in prison or jail as on the day the Brown decision was handed down—the number increased from 98,000 to 884,500. The report also noted that 1 of every 3 African American males and 1 of every 18 African American females born today could expect to be imprisoned at some point in his or her lifetime.3 The authors of the report concluded that “such an outcome should be shocking to all Americans.”4

Other statistics confirm that racial minorities—and especially young African American and Hispanic men—are substantially more likely than whites to be serving time in jail or prison. In 2009, for example, African Americans comprised 12.9 percent of the U.S. population but 39.4 percent of all jail and prison inmates. Hispanics were 15.8 percent of the U.S. population but 20.7 percent of inmates incarcerated in jails and prisons. In contrast, non-Hispanic whites made up 65.1 percent of the total population but only 34.4 percent of the jail and prison population.5

Explanations for the disproportionate number of African American and Hispanic males under the control of the criminal justice system are complex. As discussed in more detail in Chapter 9, a number of studies have concluded that most—but not all—of the racial disparity in incarceration rates can be attributed to racial differences in offending patterns and prior criminal records. Young African American and Hispanic males, in other words, face greater odds of incarceration than young white males primarily because they commit more serious crimes and have more serious prior criminal records. As the National Research Council’s Panel on Sentencing Research concluded in 1983, “Factors other than racial discrimination in the sentencing process account for most of the disproportionate representation of black males in U.S. prisons.”6 Although there is recent evidence that the proportion of the racial disparity in incarceration unexplained by racial differences in arrest rates is increasing, most scholars would contend that this conclusion is still valid today.7

Not all of the racial disparity, however, can be explained away in this fashion. Critics contend that at least some of the overincarceration of racial minorities is the result of racially discriminatory sentencing policies and practices. As one commentator noted, “A conclusion that black overrepresentation among prisoners is not primarily the result of racial bias does not mean that there is no racism in the system.”8 The National Academy of Sciences Panel similarly concluded that evidence of racial discrimination in sentencing may be found in some jurisdictions or for certain types of crimes.

Underlying this controversy are questions concerning discretion in sentencing. To be fair, a sentencing scheme must allow the judge or jury discretion to shape sentences to fit individuals and their crimes. The judge or jury must be free to consider all relevant aggravating and mitigating circumstances. To be consistent, on the other hand, a sentencing scheme requires the even-handed application of objective standards. The judge or jury must take only relevant considerations into account and must be precluded from determining sentence severity based on prejudice or whim.

Critics of the sentencing process argue that judges, juries, and other members of the courtroom workgroup sometimes exercise their discretion inappropriately. Although they acknowledge that some degree of sentence disparity is to be expected in a system that attempts to individualize punishment, these critics suggest that there is unwarranted disparity in the sentences imposed on similarly situated offenders convicted of similar crimes. More to the point, they assert that judges impose harsher sentences on African American, Hispanic, and Native American offenders than on white offenders.

Other scholars contend that judges’ sentencing decisions are not racially biased. They argue that disparity in sentencing is the result of legitimate differences among individual cases and that racial disparities disappear once these differences are taken into consideration. These scholars argue, in other words, that judges’ sentencing decisions are both fair and consistent.

There are two types of clear and convincing evidence of racial disparity in sentencing. The first is evidence derived from national statistics on prison admissions and prison populations. These statistics, which we discuss in detail in Chapter 9, reveal that the incarceration rates for African Americans and Hispanics are much higher than the rate for whites. In June 2009, for example, 4,749 of every 100,000 African American men, 1,822 of every 100,000 Hispanic men, and 708 of every 100,000 white men were incarcerated in a state or federal prison or local jail. Stated another way, the incarceration rate for African American men was 6.5 times greater than the rate for white men; the incarceration rate for Hispanic men was 2.6 times greater than the rate for white men. The incarceration rates for women, although much lower than the rates for men, revealed a similar pattern: 333 of every 100,000 for African Americans, 142 of every 100,000 for Hispanics, and 91 of every 100,000 for whites. Among males between the ages of 25 and 29 the disparities were even larger: 10,501 of every 100,000 African Americans, 3,954 of every 100,000 Hispanics, and 1,569 of every 100,000 whites were incarcerated.9

The second type of evidence comes from studies of judges’ sentencing decisions. These studies, which are the focus of this chapter, reveal that African American and Hispanic defendants are more likely than whites to be sentenced to prison; those who are sentenced to prison receive longer terms than whites. Consider the following statistics:

· Black and Hispanic offenders sentenced under the federal sentencing guidelines in U.S. District Courts from 1997 to 2000 received harsher sentences than white offenders. The incarceration rate was 93 percent for Hispanics, 85 percent for African Americans, and 74 percent for whites; in contrast, the incarceration rate for Asian Americans (71 percent) was lower than the rate for all other groups, including whites. Among those sentenced to prison, African Americans received the longest sentences, Asian Americans received the shortest sentences, and Hispanics and whites fell in the middle.10

· Among offenders convicted of drug offenses in federal district courts in 1997 and 1998, the mean sentence length was 82 months for African Americans and 52 months for whites. For offenses with mandatory minimum sentences, the mean sentences were 136 months (African Americans) and 82 months (whites).11

· Fifty-eight percent of the African American offenders convicted of violent crimes in state courts in 2006 were sentenced to prison, compared with 52 percent of the white offenders. The figures for offenders convicted of drug offenses were 43 percent for African Americans and 31 percent for whites. The mean maximum sentence imposed on offenders sentenced to prison for violent offenses was 108 months for African Americans and 99 months for whites.12

· African American and Hispanic offenders convicted of felonies in Chicago, Miami, and Kansas City faced greater odds of incarceration than whites. In Chicago 66 percent of the African Americans, 59 percent of the Hispanics, and 51 percent of the whites were incarcerated. In Miami 51 percent of the African Americans, 40 percent of the Hispanics, and 35 percent of the whites were incarcerated. In Kansas City the incarceration rates were 46 percent (African Americans), 40 percent (Hispanics), and 36 percent (whites).13

These statistics provide compelling evidence of racial disparity in sentencing. They indicate that the sentences imposed on African American and Hispanic offenders are different than—that is, harsher than—the sentences imposed on white offenders. These statistics, however, do not tell us why this occurs. They do not tell us whether the racial disparities in sentencing reflect racial discrimination and, if so, whether that discrimination is institutional or contextual. We suggest that there are at least five possible explanations for racial disparity in sentencing, only four of which reflect racial discrimination. Box 7.1 summarizes these explanations.

First, the differences in sentence severity could result from the fact that African Americans and Hispanics commit more serious crimes and have more serious prior criminal records than whites. Studies of sentencing decisions consistently have demonstrated the importance of these two “legally relevant” factors (but see Box 7.2 for an alternative interpretation of the legal relevance of crime seriousness and prior record). Offenders who are convicted of more serious offenses, who use a weapon to commit the crime, or who seriously injure the victim receive harsher sentences, as do offenders who have serious, more recent, or multiple prior felony convictions. The more severe sentences imposed on African Americans and Hispanics, then, might reflect the influence of these legally prescribed factors, rather than the effect of racial prejudice or unconscious bias on the part of judges.

African Americans and Hispanics are sentenced more harshly than whites for the following reasons:

1. They commit more serious crimes and have more serious prior criminal records than whites.

Conclusion: Racial disparity but not racial discrimination

2. They are more likely than whites to be poor; being poor is associated with a greater likelihood of pretrial detention and unemployment, both of which may lead to harsher sentences.

Conclusion: Indirect (i.e., economic) discrimination

3. They are more likely to be subject to facially neutral laws and policies that prescribe more severe sentences or sentence enhancements:

Conclusion: Institutional discrimination

4. Judges are biased or have prejudices against racial minorities.

Conclusion: Racial discrimination

5. The disparities occur in some contexts but not in others.

Conclusion: Subtle (i.e., contextual) racial discrimination

Second, the differences could result from economic discrimination. As explained in Chapter 5, poor defendants are not as likely as middle- or upper-class defendants to have a private attorney or be released prior to trial. They also are more likely to be unemployed. All of these factors may be related to sentence severity. Defendants represented by private attorneys or released prior to trial may receive more lenient sentences than those represented by public defenders or held in custody prior to trial. Defendants who are unemployed may be sentenced more harshly than those who are employed. Because African American and Hispanic defendants are more likely than white defendants to be poor, economic discrimination amounts to indirect racial discrimination.

Third, the differences might result from the application of facially neutral laws and policies that have racially disparate effects. For example, many jurisdictions prescribe harsher sentences for offenses involving crack cocaine than for offenses involving powder cocaine. These laws, which are based on assertions that crack cocaine is a more dangerous drug than powder cocaine, are racially neutral laws; the harsher sentences are imposed on all offenders convicted of offenses involving crack cocaine, regardless of the offender’s race. However, the fact that African Americans are more likely than whites to be charged with and convicted of crack cocaine offenses means that they receive longer sentences than similarly situated white offenders charged with possessing, manufacturing, or delivering powder cocaine. Sentencing guidelines, habitual offender statutes, and three-strikes-and-you’re-out laws, all of which prescribe harsher penalties for offenders with more serious prior criminal histories, similarly could produce racially disparate results. If, in other words, African Americans and Hispanics are more likely than whites to have accumulated prior criminal histories that make them eligible for harsher sentences under sentencing guidelines or for sentence enhancements, the application of these policies, which are racially neutral on their face, might result in systematically more punitive sentences for racial minorities. As discussed in Chapter 1, this would be evidence of institutional discrimination.

Fourth, the differences could result from overt racial discrimination or unconscious racial bias on the part of judges, prosecutors, and other participants in the sentencing process. Judges might take the race or ethnicity of the offender into account in determining the appropriate sentence, and prosecutors might consider the offender’s race or ethnicity in deciding whether to plea bargain and in making sentence recommendations to the judge. If so, this implies that judges and prosecutors who are confronted with similarly situated African American, Hispanic, and white offenders treat racial minorities more harshly than whites. It also implies that these criminal justice officials, the majority of whom are white, stereotype African American and Hispanic offenders as more violent, more dangerous, and less amenable to rehabilitation than white offenders. Alternatively, the differential treatment of racial minorities could result from more implicit—or unconscious—racial bias that leads criminal justice officials to treat racial minorities differently than whites (for a more detailed discussion of this possibility, see Box 7.5).

Fifth, the sentencing disparities could reflect both equal treatment and discrimination, depending on the nature of the crime, the racial composition of the victim–offender dyad, the type of jurisdiction, the age and gender of the offender, and so on. It is possible, in other words, that racial minorities who commit certain types of crimes (such as forgery) are treated no differently than whites who commit these crimes, whereas those who commit other types of crimes (such as sexual assault) are sentenced more harshly than their white counterparts. Similarly, it is possible that racial discrimination in sentencing of offenders convicted of sexual assault is confined to the South or to cases involving black offenders and white victims. It is possible, in other words, that the type of discrimination found in the sentencing process is contextual discrimination.

Researchers have conducted dozens of studies to determine which of the five explanations for racial disparity in sentencing is more correct and to untangle the complex relationship between race and sentence severity. In fact, as Marjorie Zatz has noted, this issue “may well have been the major research inquiry for studies of sentencing in the 1970s and early 1980s.”14 The studies that have been conducted vary enormously in theoretical and methodological sophistication. They range from simple bivariate comparisons of incarceration rates for whites and racial minorities, to methodologically more rigorous multivariate analyses designed to identify direct race effects, to more sophisticated designs incorporating tests for indirect race effects and for interaction between race and other predictors of sentence severity. The findings generated by these studies and the conclusions drawn by their authors also vary.

Most policy makers and researchers assume that the seriousness of the conviction charge and the offender’s prior criminal record are legally relevant to the sentencing decision. They assume that judges who base sentence severity primarily on crime seriousness and prior record are making legitimate, and racially neutral, sentencing decisions. But are they?

Some scholars argue that crime seriousness and prior criminal record are “race-linked” variables. If, for example, sentencing schemes consistently mandate the harshest punishments for the offenses for which racial minorities are most likely to be arrested (such as robbery and drug offenses involving crack cocaine), the imposition of punishment is not necessarily racially neutral.

Similarly, if prosecutors routinely file more serious charges against racial minorities than against whites who engage in the same type of criminal conduct, or offer less attractive plea bargains to racial minorities than to whites, the more serious conviction charges for racial minorities will reflect these racially biased charging and plea bargaining decisions. An African American defendant who is convicted of a more serious crime than a white defendant, in other words, may not necessarily have engaged in more serious criminal conduct than his or her white counterpart.

Prior criminal record also may be race-linked. If police target certain types of crimes (for example, selling illegal drugs) or patrol certain types of neighborhoods (for example, inner-city neighborhoods with large African American or Hispanic populations) more aggressively, racial minorities will be more likely than whites to “accumulate” a criminal history that then can be used to increase the punishment for the current offense. Racially biased charging and convicting decisions would have a similar effect.

If crime seriousness and prior criminal record are, in fact, race-linked in the ways outlined here, it is misleading to conclude that sentences based on these two variables are racially neutral. Similarly, it is misleading to conclude that the absence of “a race effect” once these two variables are taken into account signals the absence of racial discrimination in sentencing.

Studies conducted from the 1930s through the 1960s generally concluded that racial disparities in sentencing reflected overt racial discrimination. For example, the author of one of the earliest sentencing studies, which was published in 1935, claimed that “equality before the law is a social fiction.”15 Reviews of these early studies,16 however, found that most of them were methodologically flawed. They usually used simple bivariate statistical techniques, and they failed to control adequately for crime seriousness and prior criminal record.

The conclusions of these early reviews, coupled with the findings of its own review of sentencing research,17 led the National Research Council’s Panel on Sentencing Research to state in 1983 that the sentencing process was not characterized by “a widespread systematic pattern of discrimination.” Rather, “some pockets of discrimination are found for particular judges, particular crime types, and in particular settings.”18 Zatz, who reviewed the results of four waves of race and sentencing research conducted from the 1930s through the early 1980s, reached a somewhat different conclusion.19 Although she acknowledged that “it would be misleading to suggest that race/ethnicity is the major determinant of sanctioning,” Zatz nonetheless asserted that “race/ethnicity is a determinant of sanctioning, and a potent one at that.”20

The three most recent reviews of research on race and sentencing confirm Zatz’s assertion. Theodore G. Chiricos and Charles Crawford reviewed 38 studies published between 1979 and 1991 that included a test for the direct effect of race on sentencing decisions in noncapital cases.21 Unlike previous reviews, they distinguished results involving the decision to incarcerate or not from those involving the length of sentence decision. Chiricos and Crawford also considered whether the effect of race varied depending on structural or contextual conditions. They asked whether the impact of race would be stronger “in southern jurisdictions, in places where there is a higher percentage of Blacks in the population or a higher concentration of Blacks in urban areas, and in places with a higher rate of unemployment.”22 Noting that two-thirds of the studies that they examined had been published subsequent to the earlier reviews (which generally concluded that race did not play a prominent role in sentencing decisions), Chiricos and Crawford stated that their assessment “provides a fresh look at an issue that some may have considered all but closed.”23

The authors’ assessment of the findings of these 38 studies revealed “significant evidence of a direct impact of race on imprisonment.”24 This effect, which persisted even after the effects of crime seriousness and prior criminal record were controlled, was found only for the decision to incarcerate or not; it was not found for the decision on length of sentence. The authors also identified a number of structural contexts that conditioned the race/imprisonment relationship. African American offenders faced significantly greater odds of incarceration than white offenders in the South, in places where African Americans comprised a larger percentage of the population, and in places where the unemployment rate was high.

Cassia Spohn’s25 review of noncapital sentencing research that used data from the 1980s and 1990s also highlighted the importance of attempting to identify “the structural and contextual conditions that are most likely to result in racial discrimination.”26 Spohn reviewed 40 studies examining the relationship between race, ethnicity, and sentencing. This included 32 studies of sentencing decisions at the state level and 8 studies at the federal level. Consistent with the conclusions of Chiricos and Crawford, Spohn reported that many of these studies found a direct race effect. At both the state and federal levels, there was evidence that African Americans and Hispanics were more likely than whites to be sentenced to prison; at the federal level, there was also evidence that African Americans received longer sentences than whites.27

Spohn’s review of recent studies analyzing the effect of race and ethnicity on state and federal sentencing decisions identified four themes, or patterns, of contextual effects. These studies revealed the following:

1. Racial minorities are sentenced more harshly than whites if they are young and male,

· are unemployed,

· are male and unemployed,

· are young, male, and unemployed,

· have lower incomes, or

· have less education.

2. Racial minorities are sentenced more harshly than whites if they are detained in jail prior to trial,

· are represented by a public defender rather than a private attorney,

· are convicted at trial rather than by plea,

· have more serious prior criminal records.

3. Racial minorities who victimize whites are sentenced more harshly than other race-of-offender / race-of-victim combinations.

4. Racial minorities are sentenced more harshly than whites if they are

· convicted of less serious crimes or

· convicted of drug offenses or more serious drug offenses.

SOURCE: Cassia Spohn, “Thirty Years of Sentencing Reform: The Quest for a Racially Neutral Sentencing Process,” in Criminal Justice 2000: Policies, Process, and Decisions of the Criminal Justice System (Washington, DC: U.S. Department of Justice, 2000).

Noting that “[e]vidence concerning direct racial effects ... provides few clues to the circumstances under which race matters,”28 Spohn also evaluated the 40 studies included in her review for evidence of indirect or contextual discrimination. Although she acknowledged that some of the evidence was contradictory—for example, some studies revealed that racial disparities were confined to offenders with less serious prior criminal records, whereas others reported such disparities only among offenders with more serious criminal histories—Spohn nonetheless concluded that the studies revealed four “themes,” or “patterns,” of contextual effects. Box 7.3 summarizes these themes.

The first theme or pattern revealed was that the combination of race/ethnicity and other legally irrelevant offender characteristics produces greater sentence disparity than race/ethnicity alone. That is, the studies demonstrated that certain types of racial minorities—males, the young, the unemployed, the less educated—are singled out for harsher treatment. Some studies found that each of these offender characteristics, including race/ethnicity, had a direct effect on sentence outcomes but that the combination of race/ethnicity and one or more of the other characteristics was a more powerful predictor of sentence severity than any characteristic individually. Other studies found that race/ethnicity had an effect only if the offender was male, young, and/or unemployed.29

The second pattern of indirect/interaction effects was that a number of process-related factors conditioned the effect of race/ethnicity on sentence severity.30 Some of the studies revealed, for example, that pleading guilty, hiring a private attorney, or providing evidence or testimony in other cases resulted in greater sentence discounts for white offenders than for African American or Hispanic offenders. Other studies showed that racial minorities paid a higher penalty—in terms of harsher sentences—for being detained prior to trial or for having a serious prior criminal record. As Spohn noted, these results demonstrate that race and ethnicity influence sentence outcomes through their relationships with earlier decisions and suggest that these process-related determinants of sentence outcomes do not operate in the same way for racial minorities and whites.

The third theme or pattern concerned an interaction between the race of the offender and the race of the victim. Consistent with research on the death penalty (which is discussed in Chapter 8), two studies found that African Americans who sexually assaulted whites were sentenced more harshly than either African Americans who sexually assaulted other African Americans or whites who sexually assaulted whites. Thus, “punishment is contingent on the race of the victim as well as the race of the offender.”31

The final pattern of indirect/interaction effects, which Spohn admitted was “less obvious” than the other three,32 was that the effect of race/ethnicity was conditioned by the nature of the crime. Some studies found that racial discrimination was confined to less serious—and thus more discretionary—crimes. Other studies revealed that racial discrimination was most pronounced for drug offenses or, alternatively, that harsher sentencing of racial minorities was found only for the most serious drug offenses.33

The most recent review of research on race and sentencing is Ojmarrh Mitchell’s meta-analysis of published and unpublished studies that included controls for offense seriousness and prior criminal record.34 Mitchell’s quantitative analysis focused on the direction and size of the effect (the “effect size”) of race on sentencing. His analysis revealed that 76 percent of the effect sizes from the non-federal studies and 73 percent of the effect sizes from the federal studies indicated that African Americans were sentenced more harshly than whites, especially for drug offenses and especially for imprisonment decisions. The effect sizes were smaller in studies that used more precise controls for offense seriousness and criminal history; they were larger in jurisdictions that did not utilize structured sentencing guidelines. Moreover, the analysis revealed that the amount of unwarranted disparity in sentencing had not changed appreciably since the 1970s. Mitchell concluded that his findings “undermine the so-called ‘no discrimination thesis,’” given that “independent of other measured factors, on average African Americans were sentenced more harshly than whites.”35

The fact that a majority of the studies reviewed by Chiricos and Crawford, by Spohn, and by Mitchell found that African Americans (and Hispanics) were more likely than whites to be sentenced to prison, even after taking crime seriousness and prior criminal record into account, suggests that racial discrimination in sentencing is not a thing of the past. Although the contemporary sentencing process may not be characterized by “a widespread systematic pattern of discrimination,”36 it is not racially neutral.

Research conducted during the past two decades clearly demonstrates that race/ethnicity interacts with or is conditioned by (1) other legally irrelevant offender characteristics such as sex and employment status, (2) process-related factors such as pretrial detention, (3) the race of the victim, and (4) the nature and seriousness of the crime. A comprehensive review of these studies is beyond the scope of this book. Instead, we summarize the findings of a few key studies. We begin by summarizing the results of a study that found both direct and indirect racial/ethnic effects. This is followed by a discussion of studies that focus explicitly on sentence outcomes for Hispanic Americans, illegal immigrants, Asian Americans, and Native Americans. Next we review the findings of a series of studies that explore the intersections among race, ethnicity, sex, age, employment status, and sentence severity. We also review studies that examine differential treatment of interracial and intraracial crime. We then discuss the findings of studies examining the effect of race on sentencing for different types of offenses and the findings of a number of studies that focus explicitly on the relationship between race and sentence severity for drug offenders. Our purpose is to illustrate the subtle and complex ways in which race influences the sentencing process.

A number of methodologically sound studies have concluded that African American and Hispanic offenders are sentenced more harshly than whites. Cassia Spohn and Miriam DeLone, for example, compared the sentences imposed on African American, Hispanic, and white offenders convicted of felonies in Chicago, Kansas City, and Miami in 1993 and 1994.37 They controlled for the legal and extralegal variables that affect judges’ sentencing decisions: the offender’s age, sex, and prior criminal record; whether the offender was on probation at the time of the current offense; the seriousness of the conviction charge; the number of conviction charges; the type of attorney representing the offender; whether the offender was detained or released prior to trial; and whether the offender pled guilty or went to trial.

Spohn and DeLone found evidence of racial discrimination in the decision to incarcerate or not in two of the three jurisdictions. Although race had no effect on the likelihood of incarceration in Kansas City, both African Americans and Hispanics were more likely than whites to be sentenced to prison in Chicago, and Hispanics (but not African Americans) were more likely than whites to be incarcerated in Miami. The data presented in Figure 7.1 illustrate these results more clearly. The authors used the results of their multivariate analyses to calculate the estimated probability of imprisonment for a “typical” white, African American, and Hispanic offender who was convicted of burglary in each of the three cities.38

These estimated probabilities confirm that offender race had no effect on the likelihood of incarceration in Kansas City; 55 percent of the whites and 54 percent of the African Americans convicted of burglary were sentenced to prison. In Chicago, however, there was about a 4 percentage-point difference between white offenders and African American offenders and between white offenders and Hispanic offenders. In Miami the difference between white offenders and Hispanic offenders was somewhat larger; even after the other legal and extralegal variables were taken into consideration, 34 percent of the Hispanics, but only 26 percent of the whites, received a prison sentence.

Consistent with the explanations presented in Box 7.1, Spohn and DeLone also found evidence of economic discrimination. When they analyzed the likelihood of pretrial detention, controlling for crime seriousness, the offender’s prior criminal record, and other factors associated with the type and amount of bail required by the judge, they found that African Americans and Hispanics faced significantly higher odds of pretrial detention than whites in Chicago and Miami, and that African Americans were more likely than whites to be detained in Kansas City. They also found that pretrial detention was a strong predictor of the likelihood of incarceration following conviction in all three cities. Thus, African American and Hispanic defendants were more likely than whites to be detained prior to trial, and those who were detained were substantially more likely than those who were released to be incarcerated.

This study, then, demonstrated that race/ethnicity affected the likelihood of incarceration differently in these three cities. In Chicago race/ethnicity had both a direct effect on incarceration (African Americans and Hispanics were more likely than whites to be sentenced to prison) and an indirect effect on incarceration through pretrial detention (African Americans and Hispanics were more likely than whites to be detained prior to trial and pretrial detention increased the odds of a prison sentence). In Miami, on the other hand, ethnicity, but not race, had a direct effect on the likelihood of a prison sentence (Hispanics were more likely than whites to be sentenced to prison), but both race and ethnicity had an indirect effect on incarceration through pretrial detention. And in Kansas City, race did not have a direct effect on incarceration but did influence the likelihood of a prison sentence through its effect on pretrial detention. The pattern of results found for Chicago is illustrated in Box 7.4.

The authors of this study were careful to point out that the race effects they uncovered, although statistically significant, were “rather modest”39 and that the seriousness of the offense and the offender’s prior criminal record were the primary determinants of sentence outcomes. They noted, however, that the fact that offender race/ethnicity had both direct and indirect effects, coupled with the fact that female offenders and those who were released prior to trial received substantially more lenient sentences than male offenders and those who were detained before trial, suggests that “judges’ sentencing decisions are not guided exclusively by factors of explicit legal relevance.”40 They concluded that judges’ sentencing decisions reflect “stereotypes of dangerousness and culpability that rest, either explicitly or implicitly, on considerations of race, gender, pretrial status, and willingness to plead guilty.”41

A study of sentencing decisions in the state of Pennsylvania, where judges use sentencing guidelines, compared the relative harshness of sentences imposed on Hispanic and African American offenders. Arguing that “Hispanic defendants may seem even more culturally dissimilar and be even more disadvantaged” than African Americans, Darrell Steffensmeier and Stephen Demuth hypothesized that Hispanic offenders would be sentenced more harshly than either white offenders or African Americans offenders.42 They based this hypothesis on a number of factors, including the perceived threat posed by growing numbers of Hispanic immigrants; stereotypes that link Hispanics with drug trafficking and that characterize them as “lazy, irresponsible, low in intelligence, and dangerously criminal”; and the relative powerlessness of Hispanic Americans in the political arena.43 As the authors noted, “We expect that the specific social and historical context involving Hispanic Americans exacerbates perceptions of their cultural dissimilarity and the ‘threat’ they pose in ways that will contribute to their harsher treatment in criminal courts.”44

When they looked at the raw data, Steffensmeier and Demuth found that Hispanics were sentenced to prison more often than either African Americans or whites. The incarceration rates for nondrug offenses were 46.2 percent (whites), 62.9 percent (African Americans), and 66.8 percent (Hispanics). The differences were even larger for drug offenses: 52.3 percent (whites), 69.9 percent (African Americans), and 87.4 percent (Hispanics).45 These differences diminished, but did not disappear, when the authors controlled for the seriousness of the offense, the offender’s criminal history, the mode of conviction, and the offender’s age. In non-drug cases, African Americans were 6 percent more likely and Hispanics were 18 percent more likely than whites to be incarcerated. In drug cases, there was a 7 percentage-point difference in the probabilities of incarceration for African Americans and whites and a 26 percentage-point difference in the probabilities for Hispanics and whites.46 For both types of crimes, then, African Americans faced higher odds of incarceration than whites, and Hispanics faced higher odds of incarceration than both whites and African Americans.

Steffensmeier and Demuth stated that their findings were consistent with hypotheses “drawn from the writings on prejudice and intergroup hostility suggesting that the specific social and historical context facing Hispanic Americans will exacerbate perceptions of their cultural dissimilarity and the ‘threat’ they pose.”47 They illustrated this with comments made by a judge in a county with a rapidly growing Hispanic population:

We shouldn’t kid ourselves. I have always prided myself for not being prejudiced but it is hard not to be affected by what is taking place. The whole area has changed with the influx of Hispanics and especially Puerto Ricans. You’d hardly recognize the downtown from what it was a few years ago. There’s more dope, more crime, more people on welfare, more problems in school.48

This judge’s comments suggest that “unconscious racism”49 may infect the sentencing process. Concerns about the changes in the racial/ethnic makeup of a community, coupled with stereotypes linking race and ethnicity to drug use and drug-related crime and violence, may interact to produce harsher treatment of racial minorities by criminal justice officials who have always “prided themselves for not being prejudiced.” As David F. Greenberg notes, individuals who have ambivalent attitudes about race “may engage in automatic invidious stereotyping and may act on the basis of these stereotypes.”50 (See Box 7.5 for a discussion of a study investigating unconscious racial bias among judges.)

Do stereotypes of illegal immigrants as dangerous and crime-prone influence the sentences imposed on them? Anecdotal evidence suggests that they do. Consider the comments of a federal district judge, who justified a sentence at the top of the guideline range by stating on the record:

The first study to explicitly test for unconscious racial bias in judges was published in 2008–2009 in the Notre Dame Law Review (Rachlinski, Johnson, Wistrich, and Guthrie 2008–2009). The authors of the study pointed out that there is evidence suggesting that explicit, or overt, racial bias has declined markedly over time. Noting that racial disparities in punishment have persisted even as explicit bias has declined, the authors suggested that one possible explanation might be implicit, or unconscious racial bias, which they defined as “stereotypical associations so subtle that people who hold them might not even be aware of them” (Rachlinski et al. 2008–2009, 1196).

Rachlinski and his colleagues recruited 128 judges from three different jurisdictions to participate in a study designed to answer two questions: do judges hold implicit racial biases and, if so, do those biases produce racially biased decisions. To answer the first question, they used the Implicit Association Test (IAT), which is a test developed by psychologists to measure whether participants associate good or bad stereotypes with white or black faces. They found that judges, like most other individuals, “harbor implicit racial biases” (Rachlinski et al. 2008–2009, 1208). Seventy-four of the 85 white judges, and 14 of the 43 African American judges, demonstrated a “white preference,” but the white judges expressed significantly stronger white preferences than did the African American judges. The remainder of the African American judges either expressed no preference at all or expressed a black preference.

To answer the second question about the effect of implicit bias on behavior, the authors asked the judges to read three hypothetical cases and to indicate what they believed to be the most appropriate disposition in each case. What they found was that when the race of the defendant was clearly identified (as it was in only one of the hypothetical cases), the white judges treated white defendants and African American defendants the same. In fact, the higher the judge’s white preference score on the IAT, the more favorably the judge treated the African American defendant.

According to the authors, the findings of their study “demonstrate that the white judges were attempting to compensate for unconscious racial biases in their decision making. These judges were, we believe, highly motivated to avoid making biased judgments” (Rachlinski et al., 1223). The authors noted that most of the judges reported that they knew that the study was designed to assess racial bias—that is, they were aware of the potential for biased decision making and had “the cognitive skills necessary to avoid its influence” (1225).

Rachlinski and his colleagues were careful to point out that they were not concluding that judges would be able “to avoid bias on a continual basis in their own courtrooms” (1225). They noted that judges may not have the time or the information necessary to avoid unconscious bias. As they put it, judges who have implicit biases but who, “due to time pressure or other distractions, do not actively engage in an effort to control the ‘bigot in the brain’” are apt to make racially biased decisions (1225).

You are not a citizen of this country. This country was good enough to allow you to come in here to confer on you ... a number of the benefits of this society, form of government, and its opportunities and you repay that kindness by committing a crime like this. We have got enough criminals in the United States without importing any.51

There also is empirical evidence that an offender’s citizenship status influences sentence outcomes. For example, there are a number of studies52 of federal sentencing that included the offender’s citizenship status as a control variable in models of sentence length and other sentencing decisions. These studies demonstrated that offenders who were not citizens of the United States received harsher sentences than U.S. citizens did.

The first study to systematically investigate the effect of citizenship status on federal sentencing outcomes was conducted by Scott Wolfe and his colleagues at Arizona State University.53 They used data on offenders adjudicated in federal district courts in 2006 to explore the sentences imposed on U.S. citizens, illegal aliens, and resident-legal aliens. When they examined the descriptive data, they found that the incarceration rate was higher for illegal aliens (99 percent) and resident-legal aliens (89 percent) than for citizens (85 percent). In contrast, the mean sentence imposed on U.S. citizens was longer than the average sentence imposed on the two groups of non-citizens: it was 74.36 months for citizens, 52.65 months for resident-legal aliens, and only 34.79 months for illegal aliens. They also found that illegal aliens were substantially more likely than U.S. citizens to be Hispanic, to not have a high school degree, to be charged with an immigration offense, and to be held in custody prior to trial.54

The authors then controlled for the offender’s offense seriousness score, prior record score, and other offender and case characteristics that have been shown to affect sentencing outcomes in federal courts. They found that both categories of non-citizens were significantly more likely than citizens to be sentenced to prison, but that there were no differences in the prison sentences imposed on resident-legal aliens and citizens. Moreover, the sentences imposed on illegal aliens were 5 percent shorter than those imposed on U.S. citizens. They also found that the offender’s ethnicity affected the length of the sentence for both U.S. citizens and illegal aliens; however, the effect of ethnicity was negative for U.S. citizens (Hispanic citizens received shorter prison sentences than white citizens), but positive for illegal aliens (Hispanic illegal aliens received longer prison sentences than white illegal aliens).55

To explain their finding that illegal aliens had higher odds of incarceration than U.S. citizens but received shorter prison sentences than citizens, the authors suggested that it may reflect the fact that illegal aliens are likely to face deportation once they have served their prison sentences. Federal judges, in other words, imprison illegal aliens to ensure their appearance at removal proceedings but impose shorter sentences to expedite their deportation. According to the authors, there is “an incentive for judges to impose a sentence at the low end of the guideline range (or even to depart downward) in these types of cases, as doing so reduces the cost of imprisoning illegal aliens who eventually will be subject to removal proceedings.”

The authors concluded that their findings provide evidence that judges believe that non-citizens, and particularly illegal aliens, are more dangerous and blameworthy than U.S. citizens. This was reflected in the fact that conviction for immigration offenses, a drug offense, or a violent offense had a more pronounced effect on the likelihood of incarceration for illegal aliens than for citizens. The authors speculated that federal judges may take into account “that illegal alien offenders who are convicted of such offenses have brought violence, drug trafficking and further immigration problems into a country already fraught with crime.”

The results of this study, then, demonstrate the power of popular perceptions that increasing numbers of immigrants are associated with increases in crime rates. The existence of a substantial body of evidence challenging these perceptions notwithstanding, the stereotype of the crime-prone immigrant appears to affect federal judges’ sentencing decisions.

Noting that sentencing scholars have devoted “conspicuously little attention” to the sentences imposed on Asian Americans, Brian Johnson and Stephanie Bet-singer compared outcomes for African Americans, Hispanics, Asian Americans, and whites who were convicted in federal district courts from 1997 to 2000.56 They argued that it was important to include Asian Americans in studies of sentencing disparity given their popular image as “the model minority.” According to the authors, the negative image of Asian Americans that was predominant in the period prior to World War II was altered during the post-war period. As they noted, “Whatever the reasons for the historic transformation, by the mid-1960s, the popular press had begun to highlight the success stories of Asian Americans, identifying them as the ‘model minority’”—a group characterized by positive traits such as a strong work ethic, high levels of educational achievement, and social and economic success.57

Johnson and Betsinger began their analysis by examining sentence outcomes for each of four groups: Asian Americans, whites, African Americans, and Hispanics. They found that Hispanics had the highest incarceration rate (93 percent), followed by African Americans (85 percent), whites (74 percent), and Asian Americans (71 percent). They found a similar pattern when they examined the length of the sentence: Hispanics received the longest sentences and Asians received the shortest sentences. Although this suggests leniency in the sentencing of Asian Americans, the authors pointed out that the Asian offenders differed in important ways from offenders in the other three groups—Asians had less serious criminal histories, were less likely to be detained prior to sentencing, were less likely to be convicted of drug offenses and more likely to be convicted of fraud offenses, and were more likely to be college graduates.58

The racial/ethnic differences in sentence severity did not disappear when Johnson and Betsinger controlled for these variables and for other legally relevant factors. Even after taking these factors into account, Asian offenders were significantly less likely to be incarcerated; they were 35 percent less likely than whites to be sentenced to prison, 37 percent less likely than African Americans to be sentenced to prison, and 80 percent less likely than Hispanics to be sentenced to prison. Even larger differences were found when the authors compared the likelihoods of incarceration for young males in each of the four groups. Compared to young Asian males, the odds of incarceration were 18 percent greater for young white males, 42 percent higher for young African American males, and 106 percent greater for young Hispanic males. The differences were also larger when the authors examined drug offenses separately; there were no significant differences in the odds of incarceration for Asian and white offenders convicted of drug offenses, but African Americans and Hispanics were more than twice as likely as Asians to be incarcerated for drug offenses.59

The findings of this study, which was the first study to comprehensively compare sentence outcomes for Asian Americans with those for other racial/ethnic groups, confirm that race and ethnicity matter, even in a jurisdiction with rigid sentencing guidelines. They also provide support for the notion that Hispanic Americans receive harsher sentences than other racial groups and provide a first look at the more lenient treatment of Asian Americans. As the authors of the study stated, their results suggest that “federal punishments are race graded in important ways.”60 Noting that Asian Americans, as an aggregate group, can be regarded as an American success story on a variety of dimensions, Johnson and Betsinger concluded that

It may be, then, that economic equality is a precursor to social justice—that is, striving to improve the relative socioeconomic standing of other racial and ethnic minority groups may have important ripple effects that translate into more favorable societal stereotypes and greater equality of punishment within the American justice system itself.61

Although there is a growing body of sentencing research that includes Hispanic Americans, most studies investigating the effect of race on sentence outcomes focus exclusively on African Americans and whites. As we have seen, there are very few studies that include other racial minorities, such as Asian Americans or Native Americans.

There are reasons to expect harsher sentences for Native Americans than for whites, since negative stereotypes of members of this group are common. For example, Iris Marion Young62 asserted that “Native Americans are viewed in terms of narrow ethnocentric stereotypes (for example, drunken savage),” and Carol Chiago Lujan63 contended that the stereotype of the “drunken Indian” makes Native Americans more vulnerable to arrest for alcohol-related offenses and that stereotypical perceptions of reservation life as unstable and conducive to crime may lead to longer sentences for Native Americans. Similarly, Keith Wilmot and Miriam DeLone noted that forces such as colonialism “have lead to distinct public perceptions about the crime-proneness and threatening nature of Native Americans,”64 and that these perceptions may also affect the sentencing decisions of judges confronted with Native American offenders.

The few studies that do examine sentence outcomes for Native Americans have produced mixed results. Some studies found that Native Americans and whites are sentenced similarly once crime seriousness, prior record, and other legally relevant variables are taken into account.65 Other studies concluded that Native Americans adjudicated in federal66 and state67 courts are sentenced more harshly than similarly situated whites or that Native Americans serve significantly more of their prison sentence before parole or release than whites do.68

One study used data on offenders incarcerated in Arizona state correctional facilities in 1990 to compare sentence lengths for Native Americans and whites.69 Alvarez and Bachman found that whites received longer sentences than Native Americans for homicide, but Native Americans received longer sentences than whites for burglary and robbery.

Alvarez and Bachman speculated that these findings may reflect the fact that homicide tends to be intraracial, whereas burglary and robbery are more likely to be interracial. Whites may have received longer sentences for homicide, in other words, because their victims were also likely to be white, whereas the victims of Native Americans usually were other Native Americans. As the authors note, “Because the lives of American Indian victims may not be especially valued by U.S. society and the justice system, these American Indian defendants may receive more lenient sentences for their crime.” Similarly, Native Americans convicted of burglary or robbery may have received harsher sentences than whites convicted of these crimes because their victims were more likely to be “higher-status Caucasians.”70 Alvarez and Bachman concluded that their study demonstrates “the need for more crime-specific analyses to investigate discriminatory practices in processing and sentencing minority group members, especially American Indians.”71

The most methodologically sophisticated study of Native American sentencing disparities is Wilmot and DeLone’s72 study of sentences imposed on white, Native American, African American, Hispanic, and Asian offenders. This study was conducted using data from Minnesota, which has operated under presumptive sentencing guidelines since 1980. Using data on offenders convicted in 2001, the authors of this study found that Native American offenders were treated more harshly than white offenders on five of the six sentencing outcomes examined. For example, the pronounced prison sentence (that is, the prison sentence that the offender would serve if he/she were sentenced to prison) was longer for Native Americans (and African Americans) than for whites, and Native Americans were 10 percent more likely than whites to receive an executed prison sentence (that is, to be sentenced to prison rather than to jail or probation).73 These differences were found even after the seriousness of the offense, the offender’s prior record, the type of crime, and other legally relevant factors were taken into consideration.

Wilmot and DeLone ended their paper with a call for the development of a theoretical perspective on criminal justice decision making (including sentencing) that takes into account the unique aspects of Native American cultural and historical experiences. Noting that such perspectives already exist for African Americans and Hispanics, the authors concluded that “Such theories allow for the formation of racially and ethnically specific hypotheses that highlight the contextual circumstances under which no differences between racial groups is expected, as well as the situations in which racial and ethnic groups will be expected to experience discrimination in ways that are similar and dissimilar across different racial and ethnic groups.”74

In an article exploring the “convergence of race, ethnicity, gender, and class on court decision making,” Zatz urged researchers to consider the ways in which offender (and victim) characteristics jointly affect case outcomes.75 As she noted, “Race, gender, and class are the central axes undergirding our social structure. They intersect in dynamic, fluid, and multifaceted ways.”76

The findings of a series of studies conducted by Darrell Steffensmeier and his colleagues at Pennsylvania State University illustrate these “intersections.” Research published by this team of researchers during the early 1990s concluded that race,77 gender,78 and age79 each played a role in the sentencing process in Pennsylvania. However, it is interesting to note, especially in light of its later research findings,80 that the team’s initial study of the effect of race on sentencing concluded that race contributed “very little” to our understanding of judges’ sentencing decisions.81 Although the incarceration (jail or prison) rate for African Americans was 8 percentage points higher than the rate for whites, there was only a 2 percentage-point difference in the rates at which African Americans and whites were sentenced to prison. Race also played “a very small role in decisions about sentence length.”82 The average sentence for African American defendants was only 21 days longer than the average sentence for white defendants. These findings led Kramer and Steffensmeier to conclude that “if defendants’ race affects judges’ decisions in sentencing ... it does so very weakly or intermittently, if at all.”83

This conclusion is called into question by Steffensmeier, Ulmer, and Kramer’s more recent research,84 which explores the ways in which race, gender, and age interact to influence sentence severity. They found that each of the three legally irrelevant offender characteristics had a significant direct effect on both the likelihood of incarceration and the length of the sentence: African Americans were sentenced more harshly than whites, younger offenders were sentenced more harshly than older offenders, and males were sentenced more harshly than females. More importantly, they found that the three factors interacted to produce substantially harsher sentences for one particular category of offenders—young, African American males—than for any other age–race–gender combination. According to the authors, their results illustrate the “high cost of being black, young, and male.”85

Although the research conducted by Steffensmeier and his colleagues provides important insights into the judicial decision-making process, their findings also suggest the possibility that factors other than race, gender, and age may interact to affect sentence severity. If, as the authors suggest, judges impose harsher sentences on offenders perceived to be more deviant, more dangerous, and more likely to recidivate, and if these perceptions rest, either explicitly or implicitly, on “stereotypes associated with membership in various social categories,”86 then offenders with constellations of characteristics other than “young, black, and male” may also be singled out for harsher treatment.

The validity of this assertion is confirmed by the results of a replication and extension of the Pennsylvania study. Cassia Spohn and David Holleran examined the sentences imposed on offenders convicted of felonies in Chicago, Miami, and Kansas City.87 Their study included Hispanics and African Americans and tested for interactions between race, ethnicity, gender, age, and employment status. They found that none of the four offender characteristics had a significant effect on the length of the sentence in any of the three jurisdictions but that each of the characteristics had a significant effect on the decision to incarcerate or not in at least one of the jurisdictions. As shown in Part A of Table 7.1, in Chicago, African American offenders were 12.1 percent more likely than white offenders to be sentenced to prison; Hispanics were 15.3 percent more likely than whites to be incarcerated. In Miami, the difference in the probabilities of incarceration for Hispanic offenders and white offenders was 10.3 percent. Male offenders were more than 20 percent more likely than female offenders to be sentenced to prison in Chicago and Kansas City, and unemployed offenders faced significantly higher odds of incarceration than employed offenders (+9.3 percent) in Kansas City. In all three jurisdictions, offenders aged 21–29 were about 10 percent more likely than offenders aged 17–20 to be sentenced to prison.88 Race, ethnicity, gender, age, and employment status, then, each had a direct effect on the decision to incarcerate or not.

SOURCE: Cassia Spohn and David Holleran, “The Imprisonment Penalty Paid by Young, Unemployed Black and Hispanic Male Offenders,” Criminology 38 (2000), Tables 3, 5, 6.

Like Steffensmeier and his colleagues, Spohn and Holleran found that various combinations of race/ethnicity, gender, age, and employment status were better predictors of incarceration than any variable alone. As shown in Part B of Table 7.1, young African American and Hispanic males were consistently more likely than middle-aged white males to be sentenced to prison. These offenders, however, were not the only ones singled out for harsher treatment. In Chicago, young African American and Hispanic males and middle-aged African American males faced higher odds of incarceration than middle-aged white males. In Miami, young African American and Hispanic males and older Hispanic males were incarcerated more often than middle-aged white males. In Kansas City, both young African American males and young white males faced higher odds of incarceration than middle-aged whites. These results led Spohn and Holleran to conclude that “in Chicago and Miami the combination of race/ethnicity and age is a more powerful predictor of sentence severity than either variable individually, while in Kansas City age matters more than race.”89

Other, more recent, research confirms these findings.90 One study, for example, analyzed the effects of race/ethnicity and sex on sentences imposed on drug offenders in three U.S. District Courts.91 This study found that African American and Hispanic females received more lenient sentences than their male counterparts, but there were no differences in the sentences imposed on white females and males. Further analysis revealed that black male drug offenders received longer sentences than all other offenders, with the exception of Hispanic males. A second study92 of federal sentencing decisions explored the independent and joint effects of race/ethnicity, gender, and age, finding that young (ages 18-20) Hispanic and African American males received significantly harsher sentences than young white males. This study also found that young Hispanic females received sentences that were more similar to those imposed on male defendants than on female defendants, but that African American females were treated similar to or more leniently than white females.

The findings of the studies discussed above confirm Richard Quinney’s assertion, which he made 35 years ago, that “judicial decisions are not made uniformly. Decisions are made according to a host of extra-legal factors, including the age of the offender, his race, and social class.”93 Their findings confirm that dangerous or problematic populations are defined “by a mix of economic and racial ... references.”94 African American and Hispanic offenders who are also male, young, and unemployed may pay a higher punishment penalty than white offenders or other types of African American and Hispanic offenders.

The question, of course, is why young, unemployed racial minorities are punished more severely than other types of offenders—why “today’s prevailing criminal predator has become a euphemism for young, black males.”95

A number of scholars suggest that certain categories of offenders are regarded as more dangerous and more problematic than others and thus more in need of formal social control. Steven Spitzer, for example, used the term “social dynamite”96 to characterize that segment of the deviant population that is viewed as particularly threatening and dangerous; he asserted that social dynamite “tends to be more youthful, alienated and politically volatile” and contended that those who fall into this category are more likely than other offenders to be formally processed through the criminal justice system.97 Building on this point, Steven Box and Chris Hale argued that unemployed offenders who are also young, male, and members of a racial minority will be perceived as particularly threatening to the social order and thus will be singled out for harsher treatment.98 Judges, in other words, regard these types of “threatening” offenders as likely candidates for imprisonment “in the belief that such a response will deter and incapacitate and thus defuse this threat.”99

Steffensmeier and his colleagues advanced a similar explanation for their finding “that young black men (as opposed to black men as a whole) are the defendant subgroup most at risk to receive the harshest penalty.”100 They interpreted their results using the “focal concerns” perspective on sentencing. According to this perspective, judges’ sentencing decisions reflect their assessment of the blameworthiness or culpability of the offender; their desire to protect the community by incapacitating dangerous offenders or deterring potential offenders; and their concerns about the practical consequences, or social costs, of sentencing decisions. Because judges rarely have enough information to accurately determine an offender’s culpability or dangerousness, they develop a “perceptual shorthand” based on stereotypes and attributions that are themselves linked to offender characteristics such as race, gender, and age (see Box 7.6 for a discussion of the ways in which a prior criminal record affect perceptions of offenders by potential employers). Thus, according to these researchers,

Younger offenders and male defendants appear to be seen as more of a threat to the community or not as reformable, and so also are black offenders, particularly those who also are young and male. Likewise, concerns such as “ability to do time” and the costs of incarceration appear linked to race-, gender-, and age-based perceptions and stereotypes.101

It is clear that racial disparities in the treatment of defendants at various stages of the criminal justice system have spillover effects and collateral consequences. As noted earlier in this chapter, if African Americans and Hispanics are more likely than whites to be arrested, prosecuted, convicted, and sentenced to prison, they will accumulate more serious prior criminal histories than whites. As a result, they may be treated differently than whites in areas outside the criminal justice system—for example, they may find it more difficult to locate suitable housing or find appropriate employment.

The effect of having a criminal record was examined in an innovative study by Devah Pager. Her work on “The Mark of a Criminal Record” used the so-called “audit strategy.” In this design, which was used first to study the effects of race and ethnicity on job prospects, the backgrounds and resumes of job applicants from different racial/ethnic groups are carefully constructed to be identical. The matched pairs (who differ only by race or ethnicity) present themselves to potential employers, and differences in outcomes are then assumed to be due to differences in race or ethnicity. This work enjoys a long tradition in applied economics, where research consistently documents that African Americans do worse than matched white job applicants and Hispanics fare worse than matched white applicants.

Pager used the audit strategy to independently assess the impact of a criminal record by matching prospective job applicants on race and varying the presence or absence of a criminal background. In a carefully controlled experiment conducted in Milwaukee, Wisconsin, Pager had matched pairs of African American and white job seekers send their resumes to prospective employers. These pairs had identical resumes with regard to age, length of time in the job market, prior type of job, and education. However, one member of each race-matched pair indicated that he had been to prison.

Use of this strategy allowed Pager to test for differences within and between racial groups. Using callbacks from employers as the dependent variable, she found significant differences within race for the impact of a prison sentence. African American job applicants without a criminal record were nearly three times as likely to get a callback as were African American job applicants with a criminal record (14 percent versus 5 percent). The effects of a criminal record were not quite as stark for whites, as applicants without a criminal record were twice as likely to get a callback (34 percent versus 17 percent). However, the between race results remain the major finding from Pager’s research, as white applicants with a criminal record were more likely to receive job callbacks than were African American applicants who did not have a criminal record.

These findings reinforce the effect of criminal stigma for job seeking, an effect that varies with race but is often trumped by race.

SOURCE: Devah Pager, “The Mark of a Criminal Record,” American Journal of Sociology 108 (2003), pp. 937–975; Devah Pager, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (Chicago: University of Chicago Press, 2009).

The conclusions proffered by Spohn and Holleran, who noted that their results are consistent with the focal concerns perspective on sentencing, are very similar. They suggested that judges, who generally have limited time in which to make decisions and have incomplete information about offenders, “may resort to stereotypes of deviance and dangerousness that rest on considerations of race, ethnicity, gender, age, and unemployment.”102 Young, unemployed African American and Hispanic males, in other words, are viewed as more dangerous, more threatening, and less amenable to rehabilitation; as a result, they are sentenced more harshly.

There is compelling historical evidence that interracial and intraracial crimes were treated differently. Gunnar Myrdal’s examination of the southern court system in the 1930s, for example, revealed that African Americans who victimized whites received the harshest punishment, whereas African Americans who victimized other African Americans were often “acquitted or given a ridiculously mild sentence....”103 Myrdal also noted that “it is quite common for a white criminal to be set free if his crime was against a Negro.”104

These patterns are particularly pronounced for the crime of sexual assault. As Susan Brownmiller has noted, “No single event ticks off America’s political schizophrenia with greater certainty than the case of a black man accused of raping a white woman.”105 Evidence of this can be found in pre–Civil War statutes that prescribed different penalties for African American and white men convicted of sexual assault. As illustrated in Box 7.7, these early laws also differentiated between the rape of a white woman and the rape of an African American woman.

Virginia Code of 1819

The penalty for the rape or attempted rape of a white woman by a slave, African American, or mulatto was death; if the offender was white, the penalty was 10–21 years.

Georgia Penal Code of 1816

The death penalty was prescribed for rape or attempted rape of a white woman by slaves or free persons of color. A term of not more than 20 years was the penalty for rape of a white woman by a white man. A white man convicted of raping an African American woman could be fined or imprisoned at the court’s discretion.

Pennsylvania Code of 1700

The penalty for the rape of a white woman by an African American man was death; the penalty for attempted rape was castration. The penalty for a white man was 1–7 years in prison.

Kansas Compilation of 1855

An African American man convicted of raping a white woman was to be castrated at his own expense. The maximum penalty for a white man convicted of raping a white woman was 5 years in prison.106

Differential treatment of interracial and intraracial sexual assaults continued even after passage of the Fourteenth Amendment, which outlawed explicit statutory racial discrimination. In the first half of the twentieth century, African American men accused of, or even suspected of, sexually assaulting white women often faced white lynch mobs bent on vengeance. As Jennifer Wriggins noted, “The thought of this particular crime aroused in many white people an extremely high level of mania and panic.”107 In a 1907 Louisiana case, the defense attorney stated:

Gentlemen of the jury, this man, a nigger, is charged with breaking into the house of a white man in the nighttime and assaulting his wife, with the intent to rape her. Now, don’t you know that, if this nigger had committed such a crime, he never would have been brought here and tried; that he would have been lynched, and if I were there I would help pull on the rope.108

African American men who escaped the mob’s wrath were almost certain to be convicted, and those who were convicted were guaranteed a harsh sentence. Many, in fact, were sentenced to death; 405 of the 453 men executed for rape in the United States from 1930 to 1972 were African Americans.109 According to Brownmiller, “Heavier sentences imposed on blacks for raping white women is an incontestable historic fact.”110 As we show, it is not simply a historic fact. Research conducted during the past three decades illustrates that African American men convicted of raping white women continue to be singled out for harsher treatment.

Researchers analyzing the impact of race on sentencing for sexual assault (and other crimes with victims) have argued that focusing only on the race of the defendant and ignoring the race of the victim will produce misleading conclusions about the overall effect of race on sentencing. They contend that researchers may incorrectly conclude that race does not affect sentence severity if only the race of the defendant is taken into consideration. Table 7.2 presents a hypothetical example to illustrate how this might occur. Assume that 460 of 1,000 African American men (46 percent) and 440 of 1,000 white men (44 percent) convicted of sexual assault in a particular jurisdiction were sentenced to prison. A researcher who focused only on the race of the offender would therefore conclude that the incarceration rates for the two groups were nearly identical.

Assume now that the 1,000 cases involving African American men included 800 cases with African American victims and 200 cases with white victims and that 320 of the 800 cases with African American victims and 140 of the 200 cases with white victims resulted in a prison sentence. As shown in Table 7.2, although the overall incarceration rate for African American offenders is 46 percent, the rate for crimes involving African American men and white women is 70 percent, whereas the rate for crimes involving African American men and African American women is only 40 percent. A similar pattern—an incarceration rate of 50 percent for cases with white victims but only 30 percent for cases with African American victims—is found for sexual assaults involving white offenders. The similar incarceration rates for African American and white offenders in this hypothetical example mask large differences based on the race of the victim.

The findings of empirical research suggest that this scenario is not simply hypothetical. Gary D. LaFree, for example, examined the impact of offender–victim race on the disposition of sexual assault cases in Indianapolis.111 He found that African American men who assaulted white women were more likely than other offenders to be sentenced to prison. They also received longer prison sentences than any other offenders. LaFree concluded that his results highlighted the importance of examining the racial composition of the offender–victim pair. Because the law was applied most harshly to African Americans charged with raping white women but least harshly to African Americans charged with raping African American women, simply examining the overall disposition of cases with African American defendants would have produced misleading results.

Anthony Walsh112 reached a similar conclusion. When he examined the sentences imposed on offenders convicted of sexual assault in a metropolitan Ohio county, he found that neither the offender’s race nor the victim’s race influenced the length of the sentence. In addition, the incarceration rate for white defendants was higher than the rate for African American defendants. Further analysis, however, revealed that African Americans convicted of assaulting whites received more severe sentences than those convicted of assaulting members of their own race. This was true for those who assaulted acquaintances and for those who assaulted strangers. As Walsh noted, “The leniency extended to blacks who sexually assault blacks provides a rather strong indication of disregard for minority victims of sexual assault.”113

Somewhat different results were reported by Cassia Spohn and Jeffrey Spears,114 who analyzed a sample of sexual assaults bound over for trial in Detroit Recorder’s Court. Unlike previous research, which controlled only for offender–victim race and other offender and case characteristics, the authors of this study also controlled for a number of victim characteristics in addition to race. They controlled for the age of the victim, the relationship between the victim and the offender, evidence of risk-taking behavior on the part of the victim, and the victim’s behavior at the time of the incident. They compared the incarceration rates and the maximum sentences imposed on three combinations of offender–victim race: African American–African American, African American–white, and white–white.

In contrast to the results reported by LaFree and Walsh, Spohn and Spears found that the race of the offender–victim pair did not affect the likelihood of incarceration. The prison sentences imposed on African Americans who assaulted whites, however, were significantly longer than the sentences imposed on whites who assaulted whites or African Americans who assaulted African Americans. The average sentence for African American–on–white crimes was more than four years longer than the average sentence for white-on-white crimes and more than three years longer than the average sentence for African American–on–African American crimes. These results, according to the authors, reflected discrimination based on the offender’s race and the victim’s race.115

To explain the fact that offender–victim race affected the length of sentence but had no effect on the decision of whether to incarcerate, the authors suggested that judges confronted with offenders convicted of sexual assault may have relatively little discretion in deciding whether to incarcerate. As they noted, “Because sexual assault is a serious crime ... the ‘normal penalty’ may be incarceration. Judges may have more latitude, and thus more opportunities to consider extralegal factors such as offender/victim race, in deciding on the length of the sentence.”116

Spohn and Spears also tested a number of hypotheses about the interrelationships among offender race, victim race, and the relationship between the victim and the offender. Noting that previous research has suggested that crimes between intimates are perceived as less serious than crimes between strangers, they hypothesized that sexual assaults involving strangers would be treated more harshly than assaults involving intimates or acquaintances regardless of the offender’s race or the victim’s race. Contrary to their hypothesis, they found that the offender–victim relationship came into play only when both the offender and the victim were African American. African Americans convicted of assaulting African American strangers received harsher sentences than African Americans convicted of assaulting African American intimates or acquaintances; they were more likely to be incarcerated, and those who were incarcerated received longer sentences.117

The data presented in Figure 7.2 illustrate these differences. The authors used the results of their multivariate analysis of sentence length to calculate adjusted sentence means for each of the six combinations of offender race, victim race, and the relationship between the victim and the offender. These adjusted rates take all of the other independent variables into account. They show that three types of offenders received substantially longer sentences than the other three types. The harshest sentences were imposed on African Americans who victimized whites (strangers or nonstrangers) and on African Americans who victimized African American strangers. More lenient sentences were imposed on African Americans who assaulted African American nonstrangers and on whites who assaulted whites (strangers or nonstrangers).

Studies of sentencing decisions assume that prison is a harsher punishment than probation, a county jail sentence, or other alternatives to incarceration. But is this necessarily this case? Is it possible that some people would rather serve time in prison than be subjected to electronic monitoring, ordered to perform community service, or placed on intensive supervision probation? More to the point, is it possible that African Americans would evaluate the severity of these sanctions differently than whites?

To answer these questions, Peter Wood and David May asked 113 probationers to rate the severity of prison and a number of alternatives to incarceration.118 Respondents were given descriptions of 10 alternative sanctions and then were asked to indicate how many months of the alternative they would be willing to do to avoid serving a sentence of 4, 8, or 12 months of imprisonment in a medium-security facility. The authors used these responses to calculate the percentage of respondents who would choose each prison term rather than any duration of the alternative sanction. They found that African Americans were much more likely than whites to choose prison rather than an alternative; this was true for each of the alternative sentences. For example,

· 22.2 percent of African Americans, but only 13.2 percent of whites, said that they would rather serve 4 months in prison than any time on electronic monitoring; 17 percent of African Americans, but only 11.5 percent of whites, said that they would rather serve a year in prison than any time on electronic monitoring.

· Six times as many African Americans as whites said that they would rather spend time in prison than be placed on intensive supervision probation (ISP). For example, 26.8 percent of African Americans said that they would rather serve a year in prison than any time on ISP; for whites, the figure was only 3.8 percent.

· The percentage of African Americans who said they would rather spend 8 months in prison than any time in county jail was 24.1 percent, compared to 13.5 percent of whites.119

Wood and May also asked the respondents about their reasons for wanting to avoid alternative sanctions. Like their evaluations of the sanctions themselves, these varied depending on the race of the respondent. Twice as many African Americans as whites reported that a “very important reason” for avoiding alternative sanctions was that the officials in charge of these programs were too hard on participants—they wanted to catch them and send them back to prison. Similarly, 38.9 percent of African Americans, but only 18.9 percent of whites, said that abuse by officials overseeing the programs was a very important reason for avoiding them. African Americans also were more likely than whites to believe that serving time in prison is less of a hassle and that the program rules for alternative sanctions were too hard to follow. Because African Americans believe that the risk of revocation is high, they are “less willing to gamble on alternatives and more likely to choose prison instead.”120

According to the authors of this study, their findings raise questions about the deterrent value of imprisonment for African Americans. Although they admitted that they did not know whether African Americans’ preference for prison over alternative sanctions was due to a belief that doing time in prison was easier or that the risk of revocation made alternatives too risky, the authors did conclude that “a brief prison term may be more of a deterrent for whites than for blacks.”121

The studies summarized thus far highlight the importance of testing for interaction between offender race/ethnicity and other factors, such as the age, gender, and employment status of the offender, the race of the victim, and the relationship between the victim and the offender. The importance of testing for interactions between offender race and other predictors of sentencing is also demonstrated by the results of studies examining the effect of race on sentence severity for various types of crimes. Some researchers, building on Harry Kalven and Hans Zeisel’s “liberation hypothesis,”122 assert that African Americans will be sentenced more harshly than whites only in less serious cases.

The liberation hypothesis, which Kalven and Zeisel developed to explain jury decision making, suggests that jurors deviate from their fact-finding mission in cases in which the evidence against the defendant is weak or contradictory. Jurors’ doubts about the evidence, in other words, liberate them from the constraints imposed by the law and free them to consider their own sentiments or values. When Kalven and Zeisel examined jurors’ verdicts in rape cases, they found that jurors’ beliefs about the victim’s behavior at the time of the attack (for example, whether the victim was intoxicated or under the influence of drugs, whether the victim was walking alone late at night or in a bar by herself) were much more likely to influence their verdicts if the victim was raped by an unarmed acquaintance than if the victim was raped by a stranger armed with a gun or a knife.

Applied to the sentencing process, the liberation hypothesis suggests that in more serious cases the appropriate sentence is strongly determined by the seriousness of the crime and by the defendant’s prior criminal record. In these types of cases, judges have relatively little discretion and thus few opportunities to consider legally irrelevant factors such as race. In less serious cases, on the other hand, the appropriate sentence is not clearly indicated by the features of the crime or the defendant’s criminal record, which may leave judges more disposed to bring extralegal factors to bear on the sentencing decision.

Consider, for example, a case of sexual assault in which the offender, who has a prior conviction for armed robbery, raped a stranger at gunpoint. This case clearly calls for a severe sentence; all defendants who fall into this category, regardless of their race or their victim’s race, will be sentenced to prison for close to the maximum term.

The appropriate sentence for a first-time offender who assaults an acquaintance with a weapon other than a gun, however, is not necessarily obvious. Some defendants who fall into this category will be incarcerated, but others will not. This opens the door for judges to consider the race of the defendant or the race of the victim in determining the appropriate sentence.

Cassia Spohn and Jerry Cederblom used data on defendants convicted of violent felonies in Detroit to test the hypothesis that racial discrimination in sentencing is confined to less serious criminal cases.123 Although they acknowledged that all of the cases included in their data file are by definition “serious cases,” they argued that some are more serious than others: murder, rape, and robbery are more serious than assault; crimes in which the defendant used a gun are more serious than those in which the defendant did not use a gun; and crimes in which the defendant had a prior felony conviction are more serious than those in which the defendant did not have prior convictions.

As shown in Table 7.3, which summarizes the results of their analysis of the likelihood of incarceration (controlling for other variables linked to sentence severity), the authors found convincing support for their hypothesis. With only one exception, race had a significant effect on the decision to incarcerate only in less serious cases (but see Box 7.9 for evidence of racial stereotyping in homicide cases). African Americans convicted of assault were incarcerated at a higher rate than whites convicted of assault; there were no racial differences for the three more serious offenses. Similarly, race affected the likelihood of incarceration for defendants with no violent felony convictions, but not for those with a prior conviction; for defendants who victimized acquaintances, but not for those who victimized strangers; and for defendants who did not use a gun to commit the crime, but not for those who did use a gun.

SOURCE: Adapted from Cassia Spohn and Jerry Cederblom, “Race and Disparities in Sentencing: A Test of the Liberation Hypothesis,” Justice Quarterly 8 (1991), pp. 305–327.

Spohn and Cederblom concluded that their results provided support for Kalven and Zeisel’s liberation hypothesis, at least with respect to the decision to incarcerate. They also concluded that their findings offered important insights into judges’ sentencing decisions. According to the authors,

When the crime is serious and the evidence strong, judges’ sentencing decisions are determined primarily by factors of explicit legal relevance—the seriousness of the conviction charge, the number of conviction charges, the nature of the defendant’s prior criminal record, and so on. Sentencing decisions in less serious cases, however, reflect the influence of extralegal as well as legal factors.124

The assumption that offender race will not affect sentence outcomes in the most serious felonies because of limited judicial discretion in these cases is called into question by the results of a study examining sentences imposed on male homicide offenders sentenced to a term of years (rather than a life or death sentence) in Philadelphia.125 Because either life without parole or death were the only sentence options allowed in cases of first- or second-degree murder, and because judges adhered closely to these guidelines, the study focused on offenders convicted of third-degree murder, voluntary manslaughter, involuntary manslaughter, and homicide by vehicle.

Kathleen Auerhahn suggested that the offender’s race and ethnicity would not have a direct effect on the length of the sentence. Rather, she hypothesized that harsher treatment would be reserved for African American and Hispanic defendants who more closely matched stereotypes of dangerousness and threat—that is, those who were also young and held in custody prior to trial. Her results were consistent with this hypothesis; the race/ethnicity of the offender did not have a direct effect on sentence length, but the combination of being young, African American or Hispanic, and detained prior to trial did lead to longer sentences. In other words, all three characteristics were needed to trigger more punitive sentences.

Auerhahn concluded that her findings provided

convincing evidence that sentencing judges make attributions about offenders based on their conformity to a criminal stereotype, and sentence them more harshly because of it ... conformity to the stereotype may trigger attributions about the defendant’s character, disposition, or blameworthiness, as well as assumptions about the potential for future criminality in that stereotypes may be seen as the embodiment of stable characteristics on the part of decision makers.126

Most of the research on sentencing examines the sentences imposed on offenders convicted of felonies. There is relatively little research testing for racial discrimination in the sentencing of individuals convicted of misdemeanor offenses. Because the lower courts where misdemeanor cases are handled usually have huge caseloads and informal, nonadversarial procedures for delivering what is often referred to as “assembly-line justice,” one might predict that the likelihood of racially disparate decisions would be even greater in these courts than in the more formal felony courts.

Research by Michael J. Leiber and Anita N. Blowers addressed this issue.127 They used data from an urban jurisdiction in a southeastern state to test for racial differences in a series of outcomes in misdemeanor cases. One of the dependent variables they examined was whether the case was assigned “priority status.” This case-screening decision, which was made based on the defendant’s prior criminal record or the facts in the case, identified cases that warranted priority prosecution. Two other dependent variables were whether the defendant was convicted and whether the defendant was sentenced to jail or prison.

When they examined the case prioritization variable, they found that cases involving assaults, cases in which the victim was a stranger to the offender, and cases involving offenders with prior criminal histories were more likely to be prioritized. They also found that cases involving African Americans were significantly more likely than those involving whites to be prioritized. Regarding the conviction and incarceration variables, they found that more serious cases had greater odds of conviction and incarceration and that the race of the offender did not affect either of these decisions. However, both decisions were affected by the status of the case; cases labeled as priority status cases were more likely to result in convictions and sentences to jail or prison.128 The effect of race on these decisions, in other words, was indirect rather than direct. Cases involving African Americans were more likely to be prioritized and, as a result, were more likely than cases involving whites to result in conviction and incarceration. In these misdemeanor cases, then, African Americans were treated more harshly than whites when the case was characterized as serious rather than nonserious.

The results of these studies demonstrate that the criteria used by judges to determine the appropriate sentence will vary depending on the nature of the crime and the defendant’s prior criminal record. More to the point, they demonstrate that the effect of race on sentence severity will vary. Judges impose harsher sentences on African Americans than on whites under some circumstances and for some types of crime; they impose similar sentences under other circumstances and for other types of crime. The fact that race does not affect sentence severity for all cases, in other words, does not mean that judges do not discriminate in any cases.

The task of assessing the effect of race on sentencing is complicated by the war on drugs, which critics contend has been fought primarily in minority communities. Michael Tonry, for example, argued that “urban black Americans have borne the brunt of the War on Drugs.”129 More specifically, he charged that “the recent blackening of America’s prison population is the product of malign neglect of the war’s effects on black Americans.”130 Miller similarly asserted that, “The racial discrimination endemic to the drug war wound its way through every stage of the processing—arrest, jailing, conviction, and sentencing.”131 Marc Mauer’s criticism is even more pointed. He asserted that “... the drug war has exacerbated racial disparities in incarceration while failing to have any sustained impact on the drug problem.”132

Assertions such as these suggest that racial minorities will receive more punitive sentences than whites for drug offenses. This expectation is based in part on theoretical discussion of the “moral panic” surrounding drug use and the war on drugs.133 Moral panic theorists argue that society is characterized by a variety of common-sense perceptions about crime and drugs that result in community intolerance for such behaviors and increased pressure for punitive action.134 Many theorists argue that this moral panic can become ingrained in the judicial ideology of sentencing judges, resulting in more severe sentences for those—that is, African Americans and Hispanics—believed to be responsible for drug use, drug distribution, and drug-related crime.135

As demonstrated in earlier chapters and summarized in what follows, there is ample evidence that the war on drugs has been fought primarily in minority communities (see also Box 7.10, Drug-Free School Zones). In 2000 Human Rights Watch, a New York–based watchdog organization, issued a report titled Punishment and Prejudice.136 The report analyzed nationwide prison admission statistics and presented the results of the first state-by-state analysis of the impact of drug offenses on prison admissions for African Americans and whites. The authors of the report alleged that the war on drugs, which is “ostensibly color blind,” has been waged “disproportionately against black Americans.” As they noted, “The statistics we have compiled present a unique—and devastating—picture of the price black Americans have paid in each state for the national effort to curtail the use and sale of illicit drugs.” In support of this conclusion, the report noted that:

· African Americans constituted 62.6 percent of all drug offenders admitted to state prisons in 1996; in certain states, the disparity was much worse—in Maryland and Illinois, for example, African Americans comprised 90 percent of all persons admitted to state prisons for drug offenses.

· Nationwide, the rate of drug admissions to state prison for African American men was 13 times greater than the rate for white men; in 10 states, the rates for African American men were 26 to 57 times greater than those for white men.

· Drug offenders accounted for 38 percent of all African American prison admissions but only 24 percent of all white prison admissions; in New Hampshire, drug offenders accounted for 61 percent of all African American prison admissions.

· The disproportionate rates at which African Americans are sentenced to prison for drug offenses “originate in racially disproportionate rates of arrest.” From 1979 to 1998, the percentage of drug users who were African American did not vary appreciably; however, among those arrested for drug offenses, the percentage of African Americans increased significantly. In 1979 African Americans comprised 10.8 percent of all drug users and 21.8 percent of all drug arrests; in 1998, African Americans comprised 16.9 percent of all drug users and 37.3 percent of all drug arrests.

The authors of the report stated that their purpose was “to bring renewed attention to extreme racial disparities in one area of the criminal justice system—the incarceration of drug law offenders.” They also asserted that, although the high rates of incarceration for all drug offenders were a cause for concern, “the grossly disparate rates at which blacks and whites are sent to prison for drug offenses raise a clear warning flag concerning the fairness and equity of drug law enforcement across the country, and underscore the need for reforms that would minimize these disparities without sacrificing legitimate drug control objectives.”

Critics of the report’s conclusions, which they branded “inflammatory,” argued that the statistics presented did not constitute evidence of racial discrimination. “There will be inevitably, inherently, disparities of all sorts in the enforcement of any kind of law,” said Todd Graziano, a senior fellow in legal studies at the Heritage Foundation. Critics noted that because the illegal drug trade flourishes in inner-city, minority neighborhoods, the statistics presented in the report could simply indicate that African Americans commit more drug crimes than whites.

There are now a number of studies that focus on racial disparities in sentences imposed on drug offenders. In this section, we summarize the results of three studies comparing the sentences imposed on African American, Hispanic, and white drug offenders. All of these studies used data on offenders sentenced since the initiation of the war on drugs. The first two studies137 used data on offenders sentenced in state court; the second138 analyzed data on offenders sentenced under the Federal Sentencing Guidelines.

Steffensmeier and Demuth’s study of sentence outcomes in Pennsylvania focused on differential treatment of white, black, and Hispanic drug offenders.139 Arguing that “the specific social and historical context involving Hispanic Americans exacerbates perceptions of their cultural dissimilarity and the ‘threat’ they pose,” the authors of this study hypothesized that Hispanic drug offenders would be singled out for the harshest treatment.140 They found evidence in support of their hypothesis when they examined the raw data: the incarceration rate for Hispanics (87.4 percent) was substantially higher than the rates for African Americans (69.9 percent) or whites (52.3 percent), and Hispanics received somewhat longer sentences than African Americans or whites.141

These differences did not disappear when the authors controlled for the offender’s age and for a number of case characteristics (offense type and severity, criminal history, number of convictions, whether the conviction was by plea or trial). Hispanics were 26 percentage points and African Americans were 7 percentage points more likely than whites to be incarcerated; Hispanics also received sentences that averaged 8 months longer than the sentences imposed on whites.142 These findings led the authors to conclude that Hispanic defendants in Pennsylvania faced “real and meaningful” disadvantages at sentencing. They also concluded that the results of their study raise questions “about the equal application of law and the wherewithal of the sentencing guidelines in reducing sentencing disparities of any kind, including race and ethnicity.”143

Research conducted in Washington State also examined the effect of race on sentencing decisions in drug cases. Sara Steen, Rodney L. Engen, and Randy R. Gainey interviewed criminal justice officials about their perceptions of typical drug cases and drug offenders and the factors they used to differentiate among drug cases.144 They found that decision makers used three offender characteristics—gender, prior record, and whether the offender was using or dealing drugs—to construct a stereotype of a dangerous drug offender. Males with prior felony convictions who were convicted of drug-delivery offenses involving cocaine, heroin, or methamphetamine were perceived as more dangerous and threatening than other types of drug offenders.

As shown in Table 7.4, Steen and her colleagues also found that African Americans were more likely than whites to have the characteristics of the stereotypical dangerous drug offender. African Americans were more likely than whites to be male, to be drug dealers rather than drug users, and to have prior felony convictions. African Americans also were more likely than whites to have all of the characteristics of a dangerous drug offender; 16 percent of the African Americans, but only 6 percent of the whites, were male offenders with prior felony convictions who were convicted of drug dealing. According to the authors, “this disproportionality, along with cultural stereotypes, makes decision makers more inclined to expect this ‘worst case’ behavior from black offenders (especially black males) than from white offenders.”145 As a result, whites who match the stereotype of a dangerous drug offender will be seen as atypical, and their behavior will be subjected to more judicial scrutiny; African Americans who match the stereotype, however, will be perceived as typical and their cases will be handled in a routine fashion.

The results of the authors’ analysis of the decision whether to incarcerate revealed that African Americans were substantially more likely than whites to be incarcerated and that offenders whose characteristics matched those of the dangerous drug offenders had higher odds of incarceration than offenders whose characteristics were at odds with the stereotype. Males were 56 percent more likely than females to be incarcerated, and the odds of incarceration were 23 times greater for dealers than for nondealers and 8 times greater for offenders with prior felony convictions than for those without prior felonies. When the authors partitioned the data by the race of the offender, they found that although being a drug dealer had a significant effect on the likelihood of incarceration for both white offenders and African American offenders, it had a significantly larger effect for whites than for African Americans. Being a dealer increased the odds of incarceration 27 times for white offenders, compared to 9 times for African American offenders.146 Further analysis revealed that fitting the stereotype of a dangerous drug offender (that is, a male dealer with prior felony convictions) also affected the likelihood of incarceration for white offenders more than for African American offenders.147

The authors interpreted their finding that matching the stereotype of a dangerous drug offender had a more pronounced effect on the severity of the sentence for whites than for African Americans as reflecting “greater leniency in the sentencing of less-threatening white offenders, compared to blacks, as opposed to greater punitiveness in the sentencing of the most threatening white offenders.”148 All offenders—whites as well as African Americans—who matched the stereotype of a dangerous offender were sentenced to jail or prison. Probation was not an option for these dangerous offenders. Among less serious offenders, however, judges sent whites to jail or prison less often than African Americans. The authors concluded that their results suggested that “decision makers are more likely to define low-level black offenders as a threat to public safety, and therefore deserving of incarceration, than similarly situated white offenders.”149 (For additional discussion of dangerous drugs and dangerous drug offenders, see “Focus on an Issue: Penalties for Crack and Powder Cocaine.”)

The findings of this state-level study provide clues regarding the contexts in which race and ethnicity matter in sentencing drug offenders. They suggest that decision makers’ beliefs about the dangerousness of and degree of threat posed by white and African American offenders are intertwined with their assumptions about crime and criminality. As Steen and her colleagues noted, “stereotypes about both crimes and criminals affect the way cases are perceived and decisions are made.”150

Dematric Young was 20 years old when he was convicted of selling a small amount of cocaine to an undercover narcotics agent in North Lubbock, Texas. Young sold the drugs from his room in the Sunset Motel, a rundown place in a largely Hispanic neighborhood that, unknown to him, was located within 1,000 feet of Cavazos Junior High School. The normal sentence for Young’s crime under Texas law would have been about 10 years. Because Young sold the drugs in a “drug-free school zone,” he was sentenced to serve 38 years in prison.151

The Texas law under which Young was sentenced was modeled after the Federal Drug-Free School Zones Act (21 U.S.C. § 860 [1984]), which was enacted “to reduce the presence of drugs in the schools by threatening those who distributed drugs near schools with heavy penalties.” The law, which doubles the maximum sentences for drug offenses that occur within the protected zones, is applicable to offenders who are convicted of distributing, possessing with intent to distribute, or manufacturing a controlled substance in or on, or within 1,000 feet of, the real property comprising a public or private elementary, vocational, or secondary school; a public or private college, junior college, or university; a playground; or housing facility owned by a public housing authority or within 100 feet of a public or private youth center, swimming pool, or video arcade facility.

Laws similar to this have been enacted in most states. Although they are designed to prevent the sale of drugs to children by moving drug dealing away from schools, critics contend that the statutes are irrational in that they assume that all drug sales near a school involve children or are more dangerous to children than drug sales that occur farther away from schools. Critics also argue that the laws transform entire urban areas—indeed, entire cities—into school zones and that this is most likely to occur in the inner-city neighborhoods populated by poor African Americans and Hispanics. A study of New Bedford, Massachusetts, for example, found that “most of the urban core falls within the enhanced-penalty area” and that more than three-fourths of all drug-dealing cases within the city limits occurred within school zones. This study also found that the drug dealers who were arrested within the school zones were not selling drugs to children and that most of them were arrested when school was not in session.152

A report by the Justice Policy Institute reached similar conclusions about the impact of the drug-free school zone law in New Jersey.153 Noting that the New Jersey law used a broad definition of “schools” that included day care centers and vocational training centers, the report concluded that “in New Jersey’s poorest urban centers, minority offenders find themselves blanketed in drug free school zones.” The report also noted that “a more suburban county, with fewer African American and Hispanic residents and a less dense distribution of ‘schools’ might experience less enforcement of school-zone laws, placing fewer Whites at risk of arrest and imprisonment.”

As these reports suggest, drug-free school zone statutes, which are racially neutral on their face, may have racially discriminatory effects.

Cassia Spohn and Lisa Sample build on Steen and her colleagues’ study of the dangerous drug offender in state court using data on drug offenders convicted in three U.S. District Courts.154 They extended the study conducted by Steen and her colleagues by (1) using data on federal, rather than state, drug offenders; (2) including Hispanics as well as African Americans in the analyses; (3) using a definition of the dangerous drug offender that reflects the nature of the drug caseload in the federal court system; and (4) examining whether the effects of stereotypes of dangerousness varied by type of drug.

Because there were only 23 drug offenders in their data file who were convicted of an offense other than drug trafficking, Spohn and Sample could not differentiate between offenders convicted of drug delivery and those convicted of simple possession. Instead, they defined the dangerous drug offender in federal court as a male offender with a prior conviction for drug trafficking who used a weapon during the current crime. They hypothesized that offenders who perfectly matched the stereotype—that is, males with prior trafficking convictions who used a weapon—would receive longer sentences than all other offenders. They also predicted that the effect of matching the stereotype of a dangerous drug offender would not vary by race/ethnicity and that the effect of being a dangerous drug offender would vary by the type of drug involved in the case and by the race/ethnicity of the offender. They hypothesized that the effect of being a dangerous drug offender would be confined to crack cocaine cases for African American offenders and to methamphetamine cases for white and Hispanic offenders.

As shown in Table 7.5, Spohn and Sample found that African American offenders were more likely than either white offenders or Hispanic offenders to have the characteristics of a dangerous drug offender; they also found that white offenders were more likely than Hispanic offenders to match the characteristics of a dangerous drug offender. Forty-four percent of the African Americans but only 23 percent of the whites and 12 percent of the Hispanics had a prior drug trafficking conviction, and 25 percent of the African Americans but only 21 percent of the whites and 12 percent of the Hispanics used a weapon during the commission of the crime. Consistent with these findings, African Americans were overrepresented in the most serious category of the offender groups. Fourteen percent of the African American offenders, but only 5 percent of the white offenders and 2 percent of the Hispanic offenders, were male offenders with prior drug trafficking convictions who used weapons in the current offense.

SOURCE: Cassia Spohn and Lisa Sample. “The Dangerous Drug Offender in Federal Court: Stereotyping Blacks and Crack Cocaine,” Crime and Delinquency, Table 1. July 8, 2008. Reprinted by permission of SAGE Publications.

Although Spohn and Sample found partial support for their hypothesis that offenders who perfectly matched the stereotype of a dangerous drug offender would be sentenced most harshly, their results were inconsistent with their hypothesis that the effect of matching this stereotype would not vary by race/ethnicity. They found that there were no significant differences in the sentences imposed on the most dangerous offenders and the five categories of less dangerous offenders for whites or Hispanics. That is, matching the stereotype of the dangerous drug offender did not result in harsher sentences for whites or Hispanics. There were, on the other hand, significant differences in the prison sentences imposed on the most dangerous African American offenders and offenders in all five categories of less dangerous African American offenders. Partitioning the data by type of drug further clarified these relationships. Matching the stereotype of the dangerous drug offender had no effect on sentence severity for white or Hispanic offenders in either methamphetamine cases or cases involving other types of drugs. In contrast, fitting the dangerousness stereotype significantly affected the length of the prison sentence for African American offenders convicted of offenses involving crack cocaine, but had no effect on sentence length for African American offenders convicted of offenses involving other types of drugs. At least in these three U.S. District Courts, images of dangerousness and threat affected the length of the prison sentence only for African American offenders who were convicted of trafficking in crack cocaine.

The authors of this study concluded that their finding of within-race differences in sentencing only for African Americans convicted of trafficking in crack cocaine suggests that judges’ attributions of dangerousness and threat reflect a complex interplay among offender characteristics, crime seriousness, and type of drug. They speculated that the linkage between African Americans and crack cocaine may create a more vivid and powerful metaphor of dangerousness in the minds of judges. If, in other words, judges regard crack as a particularly harmful drug and believe that the typical crack offender is African American, they may believe that it is appropriate to impose especially punitive sentences on offenders who accumulate more of the characteristics of a dangerous offender.

Spohn and Sample noted that although the results of their study conflicted with the substantive findings from Washington State, they were nonetheless consistent with Steen and her colleagues’ conclusion that “the meaning of race ... will vary depending on other offender and offense characteristics, and that differences in treatment within race may therefore be as large as differences between races.”155

Historically, most state and federal judges have been white males. Although the nation’s first African American judge was appointed in 1852, by the mid-1950s there were only a handful of African Americans presiding over state or federal courts. During the 1960s and 1970s, civil rights leaders lobbied for increased representation of African Americans at all levels of government, including the courts. By 1990 there were nearly 500 African American judges on the bench nationwide.

Those who champion the appointment of racial minorities argue that African American and Hispanic judges could make a difference. They contend that increasing the number of racial minorities on state and federal courts will alter the character of justice and the outcomes of the criminal justice system. Because the life histories and experiences of African Americans and Hispanics differ dramatically from those of whites, the beliefs and attitudes they bring to the bench also will differ. Justice A. Leon Higginbotham Jr., an African American who retired from the U.S. Court of Appeals for the Third Circuit in 1993, wrote, “The advantage of pluralism is that it brings a multitude of different experiences to the judicial process.”156 More to the point, he stated that “someone who has been a victim of racial injustice has greater sensitivity of the court’s making sure that racism is not perpetrated, even inadvertently.”157 Judge George Crockett’s assessment of the role of the African American judge was even more pointed: “I think a black judge ... has got to be a reformist—he cannot be a member of the club. The whole purpose of selecting him is that the people are dissatisfied with the status quo and they want him to shake it up, and his role is to shake it up.”158

Assuming that African American judges agree with Judge Crockett’s assertion that their role is to “shake it up,” how would this affect their behavior on the bench? One possibility is that African American (and Hispanic) judges might attempt to stop—or at least slow—the flow of young African American (and Hispanic) men into state and federal prisons. If African American judges view the disproportionately high number of young African American males incarcerated in state and federal prisons as a symptom of racial discrimination, they might be more willing than white judges to experiment with alternatives to incarceration for offenders convicted of nonviolent drug and property crimes. Susan Welch and her colleagues make an analogous argument. Noting that African American judges tend to view themselves as liberal rather than conservative, they speculate that African American judges might be “more sympathetic to criminal defendants than whites judges are, since liberal views are associated with support for the underdog and the poor, which defendants disproportionately are.”159 Other scholars similarly suggest that increasing the number of African American judges would reduce racism in the criminal justice system and produce more equitable treatment of African American and white defendants.160

Statements made by African American judges suggest that they might bring a unique perspective to the courts. Michael David Smith’s161 survey of African American judges throughout the United States revealed that these judges believed that their presence on the bench reduced racial discrimination and promoted equality of justice. A Philadelphia judge, for instance, stated that the mere presence of African American judges “has done more than anything I know to reduce police brutality and to reduce illegal arrests and things of that sort.”162 Moreover, nearly half of the respondents stated that African American judges should exercise their powers to protect the rights of African American defendants. One Michigan judge remarked that African American judges should state that “everybody’s going to get equal justice,” by saying that, “you’re going to give blacks something that they haven’t been getting in the past.”163

As more African Americans have been appointed or elected to state and federal trial courts, it has become possible to compare their decisions with those of white judges. Two studies examined the consequences of the affirmative action policies of President Carter, who appointed a record number of African Americans to the federal courts. (Carter appointed 258 judges to the federal district courts and courts of appeals; 37, or 14 percent, were African Americans. In contrast, African Americans accounted for only 6 of the 71 [7.2 percent] persons appointed to the U.S. District Courts by President George W. Bush and only 10 of the 132 [6.8 percent] persons appointed to the U.S. District Courts by President Geroge H. W. Bush. Fifty-three [17.4 percent] of President Clinton’s 229 appointees were African American and 18 [5.9 percent] were Hispanic.)164

Thomas G. Walker and Deborah J. Barrow165 compared decisions handed down by the African American and white district court judges appointed by President Carter. The question they asked was, “Did it make a difference that President Carter appointed unprecedented numbers of women and minorities to the bench as opposed to filling vacancies with traditional white, male candidates?”166 The authors found no differences in criminal cases or in four other types of cases. In criminal cases African American judges ruled in favor of the defense 50 percent of the time; white judges ruled in favor of the defense 48 percent of the time. These similarities led the authors to conclude that black judges do not view themselves as advocates for the disadvantaged or see themselves as especially sympathetic to the policy goals of minorities.

Jon Gottschall167 examined decisions in the U.S. Courts of Appeals in 1979 and 1981. He compared the decisions of African American and white judges in terms of “attitudinal liberalism,” which he defined as “a relative tendency to vote in favor of the legal claims of the criminally accused and prisoners in criminal and prisoner’s rights cases and in favor of the legal claims of women and racial minorities in sex and race discrimination cases.”168

In contrast to Walker and Barrow, Gottschall found that the judge’s race had a “dramatic impact” on voting in cases involving the rights of criminal defendants and prisoners. African American male judges voted to support the legal claims of defendants and prisoners 79 percent of the time, as compared to only 53 percent for white male judges. African American judges, however, did not vote more liberally than white judges in race or sex discrimination cases. Gottschall concluded, “Affirmative action for blacks does appear to influence voting on the courts of appeals in cases involving the rights of the accused and prisoners, where black voting is markedly more liberal than is that of whites.”169

A more recent study170 of the decisions of judges appointed to the U.S. Courts of Appeals found that judges who were both members of a racial minority group and female decided cases differently than other judges. Arguing that “female members of a racial minority occupy a unique place within society,”171 Todd Collins and Laura Moyer hypothesized that female minority judges would support more liberal (that is, more pro-defendant) outcomes in cases involving the rights of criminal defendants. Consistent with their hypothesis, they found that minority female judges voted in favor of the defendant in 33.9 percent of the cases; the comparable figures for white males, white females, and minority males were 20 percent, 23 percent, and 24.7 percent, respectively. Further analysis revealed that these differences persisted even after the authors added other judge characteristics and characteristics of the circuit to the model. The authors concluded that the results of their analysis suggest that “minority women may have a distinctive identity that differs significantly from Caucasian women and minority males.”172

Because the United States Sentencing Commission does not provide data on the identity of the judge who imposed the sentence on an offender adjudicated in one of the U.S. District Courts, researchers have been unable to compare the sentencing decisions of white, African American, and Hispanic judges on the federal bench. Two studies used an alternative approach to this issue.173 Rather than examining the race of the sentencing judge, these studies compared sentences for offenders of different races/ethnicities who were sentenced in jurisdictions with different proportions of white, African American, and Hispanic court workers, including judges. The purpose of these studies, in other words, was to determine “whether racially representative courts yield more racially equitable case outcomes.”174

Both of the studies using this approach produced similar, although not identical, results. Farrell and her colleagues found that defendants were less likely to be sentenced to prison in jurisdictions with greater representation of African American judges and prosecutors, but were more likely to be sentenced to prison in districts with greater numbers of African American public defenders and probation officers. They also found that although African American offenders were more likely than white offenders to be sentenced to prison, the disparity was reduced when African American offenders were sentenced in districts with increased representation of African American prosecutors (in contrast, the disparity in incarceration rates did not decline as the percentage of judges who were African American increased).175 These findings led the authors to conclude that “greater representation of workers of color in the justice system can contribute to more equitable treatment of racial groups. Specifically, equity would be improved with greater representation of blacks among prosecutors.”176

Max Schanzenbach’s177 approach differed somewhat from the approach Farrell and her colleagues used. Whereas the latter researchers included variables measuring the percentages of judges, prosecutors, public defenders, and probation officers who were African American, Schanzenbach focused only on the effects of the percentages of judges who were African American and Hispanic. When he examined sentences imposed on offenders convicted of more serious crimes, he found that as the proportion of the bench that was Hispanic increased, the probability of incarceration decreased for African American and Hispanic offenders; he also found that representation of African Americans on the bench had no effect on the likelihood of incarceration for African American offenders but did result in a lower likelihood for Hispanic offenders. For non-serious crimes, on the other hand, the percentage of African American judges did reduce the odds of incarceration for African American offenders. These results led Schanzenbach to conclude that, at least for serious crimes, appointing more African American judges to the bench would not reduce racial disparities in sentencing.

Research comparing the sentencing decisions of African American and white state court judges also has yielded mixed results. Most researchers have found few differences and have concluded that the race of the judge is not a strong predictor of sentence severity.178 Two early studies, for example, found few differences in the sentencing behavior of African American and white judges. Engle179 analyzed Philadelphia judges’ sentencing decisions. He found that although the judge’s race had a statistically significant effect, nine other variables were stronger predictors of sentence outcomes. He concluded that the race of the judge exerted “a very minor influence” overall.180 Thomas M. Uhlman’s181 study of convicting and sentencing decisions in “Metro City” reached a similar conclusion. African American judges imposed somewhat harsher sentences than white judges, but the differences were relatively small. And both African American and white judges imposed harsher sentences on African American defendants than on white defendants. Moreover, there was more “behavioral diversity” among the African American judges than between African American and white judges. Some of the African American judges imposed substantially harsher sentences than the average sentence imposed by all judges, whereas other African American judges imposed significantly more lenient sentences. These findings led Uhlman to conclude that “Black and white judges differ little in determining both guilt and the punishment a defendant ‘deserves’ for committing a crime in Metro City.”182

A later study of sentencing decisions in “Metro City” reached a different conclusion. Susan Welch, Michael Combs, and John Gruhl183 found that African American judges were more likely than white judges to send white defendants to prison. Further analysis led them to conclude that this difference reflected African American judges’ tendency to incarcerate African American and white defendants at about the same rate and white judges’ tendency to incarcerate African American defendants more often than white defendants. They also found, however, that African American judges, but not whites judges, favored defendants of their own race when determining the length of the prison sentence.

These results led them to conclude that “black judges provide more than symbolic representation.”184 According to these authors, “To the extent that they equalize the criminal justice system’s treatment of black and white defendants, as they seem to for the crucial decision to incarcerate or not, [black judges] thwart discrimination against black defendants. In fact, the quality of justice received by both black and white defendants may be improved.”185

A study of sentencing decisions by African American and white judges on the Cook County (Chicago) Circuit Court reached a similar conclusion.186 Spears found that African American judges sentenced white, African American, and Hispanic offenders to prison at about the same rate, whereas white judges sentenced both African American and Hispanic offenders to prison at a significantly higher rate than white offenders. In fact, compared to white offenders sentenced by white judges, African American offenders sentenced by white judges had a 13 percent greater probability of imprisonment; for Hispanic offenders sentenced by white judges, the difference was 15 percent. Like the “Metro City” study, then, this study found that white judges sentenced racial minorities more harshly than whites and concluded that having African American judges on the bench “does provide more equitable justice.”187

Spohn’s188 analysis of the sentences imposed on offenders convicted of violent felonies in Detroit Recorder’s Court produced strikingly different results and led to very different conclusions. Like Engle and Uhlman, Spohn uncovered few meaningful differences between African American and white judges. She found that African American judges were somewhat more likely than white judges to sentence offenders to prison, but that judicial race had no effect on the length of sentence. Like Engle, she concluded that “the effect of judicial race, even where significant, was clearly overshadowed by the effect of the other independent variables.”189 Spohn also tested for interaction between the race of the judge, the race of the offender, and the race of the victim—that is, she attempted to determine, first, if African American and white judges treated African American and white offenders differently and, second, if African American and white judges imposed different sentences on African American offenders who victimized other African Americans, African American offenders who victimized whites, white offenders who victimized other whites, and white offenders who victimized African Americans.

Spohn’s research highlighted the similarities in the sentences imposed by African American and by white judges. African American judges sentenced 72.9 percent of African American offenders to prison, whereas white judges incarcerated 74.2 percent, a difference of less than 2 percentage points. The adjusted figures for white offenders were 65.3 percent (African American judges) and 66.5 percent (white judges), again a difference of less than 2 percentage points. More important, these data reveal that both African American and white judges sentenced African American defendants more harshly than white defendants. For both African American and white judges, the adjusted incarceration rates for African American offenders were 7 percentage points higher than for white offenders. Moreover, African American judges sentenced offenders to prison at about the same rate as white judges, regardless of the racial makeup of the offender–victim pair.

These findings led Spohn to conclude that there was “remarkable similarity”190 in the sentencing decisions of African American and white judges. They also led her to question the assumption that discrimination against African American defendants reflects prejudicial or racist attitudes on the part of white criminal justice officials. As she noted, “Contrary to expectations, both black and white judges in Detroit imposed harsher sentences on black offenders. Harsher sentencing of black offenders, in other words, cannot be attributed solely to discrimination by white judges.”191 Spohn suggested that her findings contradicted the widely held assumption that African Americans do not discriminate against other African Americans and conventional wisdom about the role of African American judges. She concluded “that we should be considerably less sanguine in predicting that discrimination against black defendants will decline as the proportion of black judges increases.”192

To explain her unexpected finding that both African American and white judges sentenced African American defendants more harshly than white defendants, Spohn suggested that African American and white judges might perceive African American offenders as more threatening and more dangerous than white offenders. Alternatively, she speculated that at least some of the discriminatory treatment of African American offenders might be the result of concern for the welfare of African American victims. African American judges, in other words, “might see themselves not as representatives of black defendants but as advocates for black victims. This, coupled with the fact that black judges might see themselves as potential victims of black-on-black crime, could help explain the harsher sentences imposed on black offenders by black judges.”193

Spohn acknowledged that because we do not know with any degree of certainty what goes through a judge’s mind during the sentencing process, these explanations were highly speculative. As she put it, “We cannot know precisely how the race of the offender is factored into the sentencing equation. Although the data reveal that both black and white judges sentence black offenders more harshly than white offenders, the data do not tell us why this occurs.”194

Although most research examining the effect of judicial characteristics on sentencing has focused on the race of the sentencing judge, there is one study that compares the sentencing decisions of white and Hispanic judges in two southwestern jurisdictions.195 Malcolm D. Holmes and his colleagues found that Hispanic judges sentenced white and Hispanic offenders similarly, whereas white judges sentenced Hispanics more harshly than whites. In fact, the sentences imposed on Hispanic offenders by Hispanic and white judges were very similar to the sentences imposed by Hispanic judges on white offenders. What was different, according to these researchers, was that white judges sentenced white offenders more leniently. Thus, “Anglo judges are not so much discriminating against Hispanic defendants as they are favoring members of their ethnic groups.”196

Although there is some evidence that African American and Hispanic judges sentence racial minorities and whites similarly, and that white judges give preferential treatment to white offenders, the bulk of the evidence suggests that judicial race/ethnicity makes very little difference. The fact that African American, Hispanic, and white judges decide cases similarly is not particularly surprising. Although this conclusion challenges widely held presumptions about the role of African American and Hispanic criminal justice officials, it is not at odds with the results of other studies comparing African American and white decision makers. As noted in Chapter 4, studies have documented similarities in the behavior of African American and white police officers.

Similarities in judicial decision making can be attributed in part to the judicial recruitment process, which produces a more or less homogeneous judiciary. Most judges recruited to state courts are middle or upper class and were born and attended law school in the state in which they serve. Even African American and white judges apparently share similar background characteristics. Studies indicate that “both the black and white benches appear to have been carefully chosen from the establishment center of the legal profession.”197 The judicial recruitment process may screen out candidates with unconventional views.

These similarities are reinforced by the judicial socialization process, which produces a subculture of justice and encourages judges to adhere to prevailing norms, practices, and precedents. They also are reinforced by the courtroom work group—judges, prosecutors, and defense attorneys who work together day after day to process cases as efficiently as possible. Even unconventional or maverick judges may be forced to conform. As one African American jurist noted, “No matter how ‘liberal’ black judges may believe themselves to be, the law remains essentially a conservative doctrine, and those who practice it conform.”198

Federal sentencing guidelines for drug offenses differentiate between crack and powder cocaine. In fact, until very recently, the guidelines treated crack cocaine as being 100 times worse than powder cocaine. Until 2010 possession of 500 grams of powder cocaine, but only 5 grams of crack, triggered a mandatory minimum sentence of five years. Critics charged that this policy, although racially neutral on its face, discriminated against African American drug users and sellers, who prefer crack cocaine to powder cocaine. More than 90 percent of the offenders sentenced for crack offenses in federal courts are African American. Those who defend the policy, however, suggested that it is not racially motivated; rather, as Randall Kennedy, an African American professor at Harvard Law School, contended, the policy is a sensible response “to the desires of law-abiding people—including the great mass of black communities—for protection against criminals preying on them.”199

Concerns about the racial implications of the crack–powder disparity led some federal judges to attempt to circumvent the mandatory minimum sentences for offenders convicted of offenses involving crack cocaine. For example, in 1993 Judge Lyle Strom, the chief judge of the United States District Court in Nebraska, sentenced four African American crack dealers to significantly shorter prison terms than called for under the guidelines. In explanation, Strom wrote, “Members of the African American race are being treated unfairly in receiving substantially longer sentences than Caucasian males who traditionally deal in powder cocaine.”200

Strom’s decision was overturned by the Eighth Circuit Court of Appeals in 1994. The three-judge panel ruled that even if the guidelines are unfair to African Americans, that is not enough to justify a more lenient sentence than called for under the guidelines. Other federal appellate courts have upheld the 100-to-1 rule, holding that the rule does not violate the equal protection clause of the Fourteenth Amendment (see, for example, U.S. v. Thomas, 900 F.2d 37 [4th Cir. 1990]; U.S. v. Frazier, 981 F.2d 92 [3rd Cir. 1992]; and U.S. v. Latimore, 974 F2d 971 [8th Cir. 1992].

In 1996 the U.S. Supreme Court ruled 8–1 that African Americans who allege that they have been singled out for prosecution under the crack cocaine rule must first show that whites in similar circumstances were not prosecuted.201 The case was brought by five African American defendants from Los Angeles, who claimed that prosecutors were systematically steering crack cocaine cases involving African Americans to federal court, where the 100-to-1 rule applied, but steering cases involving whites to state court, where lesser penalties applied. The Court stated that a defendant who claimed he or she was a victim of selective prosecution “must demonstrate that the federal prosecutorial policy had a discriminatory effect and that it was motivated by a discriminatory purpose.”

The United States Sentencing Commission repeatedly recommended that the penalties for crack and powder cocaine offenses be equalized. In 1995 the Commission recommended that the 100-to-1 ratio be changed to a 1-to-1 ratio. Both Congress and former President Clinton rejected this amendment. In May 2002 the Commission “unanimously and firmly” reiterated its earlier position that “the various congressional objectives can be achieved more effectively by decreasing substantially the 100-to-1 drug quantity ratio.”202 The Commission recommended increasing the quantity levels that trigger the mandatory minimum penalties for crack cocaine. They recommended that the 5-year mandatory minimum threshold be increased to at least 25 grams and that the 10-year mandatory minimum threshold be increased to at least 250 grams. The Commission also recommended that Congress repeal the mandatory minimum sentence for simple possession of crack cocaine.

The Commission’s 2002 report also noted that the majority (85 percent in 2000) of offenders subject to the harsh penalties for drug offenses involving crack cocaine were African American. Although the commissioners acknowledged that this did not necessarily prove that “the current penalty structure promotes unwarranted disparity based on race,” they cautioned that “even the perception of racial disparity [is] problematic because it fosters disrespect for and lack of confidence in the criminal justice system.”203

In 2010 Congress finally acted to reduce the crack/powder cocaine disparity. Under the Fair Sentencing Act, which President Obama signed into law in August of 2010, the amount of crack cocaine necessary to trigger a 5-year mandatory minimum sentence was increased from 5 grams to 28 grams; the amount necessary to trigger a 10-year sentence was increased from 50 grams to 280 grams. Because the amounts of powder cocaine that led to a 5-year (500 grams) or a 10-year (1,000 grams) sentence did not change, the disparity under the 2010 law is 18-to-1 rather than 100-to-1. (For a discussion of another type of race-linked sentencing statute, see “In the Courts: The Constitutionality of Hate-Crime Sentencing Enhancements—Wisconsin v. Mitchell (508 U.S. 47 [1993]).”

Marc Mauer, who is the Executive Director of The Sentencing Project, has suggested that one way to avoid the enactment of facially neutral but racially disparate policies such as the crack/powder cocaine sentencing disparity is to require “racial impact statements” whenever new sentencing legislation is proposed.204 Arguing that it would be better to assess the racial dimensions of proposed policy changes before new legislation is enacted, Mauer called for the adoption of a policy requiring policy makers to evaluate the potential racial effects of laws prior to their adoption. As he noted, “the adoption of racial impact statements offers a means by which policymakers can avoid some of the mistakes of the past and develop crime policy that is both constructive and fair.”205

At the time that this book went to press, the Sentencing Commission had not yet decided whether the changes in the laws regarding crack cocaine should be retroactive. How was this issue resolved?

In 1989 Todd Mitchell, a 19-year-old African American, and a group of his friends accosted Gregory Reddick, a 14-year-old white boy, beat him severely, and stole his tennis shoes. Mitchell and his friends had just watched the movie Mississippi Burning, which depicts Ku Klux Klan terrorism against African Americans in the South during the 1960s. They were standing outside an apartment complex in Kenosha, Wisconsin, discussing the movie, when Reddick walked by. Mitchell asked his friends, “Do you feel hyped up to move on some white people?” He then pointed to Reddick and said, “There goes a white boy.... Go get him!” The beating put Reddick in a coma for four days and he suffered permanent brain damage.

Mitchell was convicted of aggravated battery, an offense that ordinarily carries a maximum sentence of two years in prison. The jury, however, found that Mitchell had intentionally selected his victim because of the boy’s race, in violation of Wisconsin’s hate-crime statute. That law, which increased the maximum sentence for Mitchell’s crime to seven years, enhances the maximum penalty for an offense whenever the defendant “intentionally selected the person against whom the crime ... is committed ... because of the race, religion, color, disability, sexual orientation, national origin, or ancestry of that person.”206 The judge sentenced Mitchell to four years in prison for the aggravated battery.

Mitchell challenged his conviction and sentence, arguing that the hate-crime statute infringed on his First Amendment right to freedom of speech. The Wisconsin Supreme Court agreed, holding that the statute “violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought.” The court rejected the state’s claim that the statute punished only conduct (that is, the intentional selection of a victim on the basis of race) and stated that “the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees.”

Despite dozens of studies investigating the relationship between defendant race and sentence severity, a definitive answer to the question, “Are racial minorities sentenced more harshly than whites?” remains elusive. Although a number of studies have uncovered evidence of racial discrimination in sentencing, others have found that there are no significant racial differences.

The failure of research to produce uniform findings of racial discrimination in sentencing has led to conflicting conclusions. Some researchers assert that racial discrimination in sentencing has declined over time and contend that the predictive power of race, once relevant legal factors are taken into account, is quite low. Other researchers claim that discrimination has not declined or disappeared but simply has become more subtle and difficult to detect. These researchers argue that discrimination against racial minorities is not universal but is confined to certain types of cases, certain types of settings, and certain types of defendants.

We assert that the latter explanation is more convincing. We suggest that although the sentencing process in most jurisdictions today is not characterized by overt or systematic racism, racial discrimination in sentencing has not been eliminated. We argue that sentencing decisions in the 1990s reflect contextual discrimination. Judges in some jurisdictions continue to impose harsher sentences on racial minorities who murder or rape whites and more lenient sentences on racial minorities who victimize members of their own racial/ethnic group. Judges in some jurisdictions continue to impose racially biased sentences in less serious cases; in these “borderline cases” racial minorities get prison, whereas whites get probation. Judges, in other words, continue to take race into account, either explicitly or implicitly, when determining the appropriate sentence.

The problem is compounded by the existence of institutional discrimination. This type of discrimination is exemplified by facially neutral sentencing policies—the crack/powder cocaine sentencing disparity, the drug-free school zones, and habitual offender or three-strikes-and-you’re-out laws—that have disparate effects on racial minorities and whites. Because these laws are applicable more often to African American and Hispanics than to whites, their effects are to increase racial disparities in incarceration rates and to exacerbate the collateral consequences of incarceration for racial minorities and the communities in which they live.

It thus appears that although flagrant racism in sentencing has been eliminated, equality under the law has not been achieved. Today, whites who commit crimes against racial minorities are not beyond the reach of the criminal justice system, African Americans suspected of crimes against whites do not receive “justice” at the hands of white lynching mobs, and racial minorities who victimize other racial minorities are not immune from punishment. Despite these significant changes, inequities persist. Racial minorities who find themselves in the arms of the law continue to suffer discrimination in sentencing.