In this era of mandatory sentencing laws and sentencing guidelines, judges have less authority to affect the outcome of criminal cases through the exercise of judicial discretion. Still, courts bear significant responsibility for the injustices suffered by minorities in our criminal system. In the face of overwhelming racial disparities created by policing tactics, prosecutorial decision-making and unjust sentencing laws, courts have generally declined to examine or redress racial inequality in the criminal justice system, and have made it harder for litigants to expose such flaws.
The Supreme Court’s consideration of capital punishment disparities in McCleskey v. Kemp exemplifies the judiciary’s unwillingness to look behind the exercise of discretion by other criminal justice decision-makers. McClesky, sentenced to death in Georgia, presented statistical evidence from the Baldus Study, discussed in Chapter II, that individuals charged with killing white victims were far more likely to be sentenced to death than individuals charged with killing black people. Had the victim in McCleskey’s case been black instead of white, with all other factors remaining constant, there was a 59 percent chance he would have received a sentence other than death. Such statistical evidence raised serious doubts that the death penalty in Georgia was administered in a fair and racially neutral manner, as required by the Constitution.
By a 5-4 vote, the Court upheld McCleskey’s death sentence. It found that while the statistical evidence cast doubt on the fairness of the Georgia death penalty in general, the evidence did not speak to whether capital punishment was unfairly applied to McCleskey himself. In order to justify overturning his death sentence, the Court held, McCleskey would need to demonstrate that his own sentence was tainted by racial considerations, which he could not do. Responding to McCleskey’s claim that his death sentence was arbitrary and therefore “cruel and unusual punishment,” the Court found that although McCleskey’s death sentence may have been arbitrary, the degree of arbitrariness was “constitutionally acceptable,” given the discretion traditionally afforded prosecutors and juries in seeking and imposing the death penalty.
McCleskey “may be the single most important decision the Court has ever issued on the subject of race and crime” because it signaled the Court’s unwillingness to confront statistical evidence of racial unfairness in the criminal justice process. The requirement that a defendant demonstrate that racial bias infected his case specifically is almost always an impossible test. In setting the bar so high, the Court declared, in effect, that systemic racial bias does not offend the Constitution. The Court candidly expressed concern that overturning McCleskey’s sentence on the grounds he presented would have opened the door to challenges based on other statistical disparities in the criminal justice system. But that concern is our concern – the criminal justice system is awash in racial disparities. As Justice William Brennan stated in dissent, the Court’s decision “seem[ed] to suggest a fear of too much justice.”
The Court’s reasoning in McCleskey has been adopted in other cases where law enforcement practices were challenged on grounds of racial disproportionality. The Georgia Supreme Court, for example, having invalidated the State’s “two strikes, you’re out” law because it was disproportionately applied to blacks, reversed itself two weeks later after receiving a brief signed by all 46 of the State’s District Attorneys. The District Attorneys contended that the Court’s initial decision could undermine Georgia’s entire criminal justice system, an implicit admission that charging and sentencing outcomes in Georgia are racially skewed. The State Supreme Court’s decision reversing itself relied almost exclusively on McCleskey.
In United States v. Armstrong, the Supreme Court raised the bar for challenging systemic racial bias even higher. In McCleskey the Supreme Court had held that a defendant claiming unfair sentencing or selective prosecution based on race must demonstrate that his case was handled differently from similar cases involving defendants (or in the case of the death penalty, victims) of other races. Of course much of the information bearing on this question will be in the hands of law enforcement officials themselves. In Armstrong, the Court put this information out of the reach of defendants.
Armstrong was prosecuted for a crack cocaine offense in Los Angeles. He sought to make an issue of the manifestly disparate treatment, discussed earlier, of white and black crack defendants in that jurisdiction. But the Court held that efforts to obtain records from the U.S. Attorney’s office to prove selective enforcement could not proceed absent a threshold “colorable basis” for the charge of selective prosecution. Of course, the government’s files were necessary to make that colorable showing, but the Court held that a defense attorney’s affidavit alleging the absence of federal prosecutions of white crack offenders was simply “hearsay.” Under the Catch-22 reasoning of McClesky and Armstrong, claims of selective prosecution and other claims alleging bias in law enforcement practices remain “available in theory, but unattainable in practice.”
As difficult to prove as selective prosecution is the claim that a prosecutor, in violation of the Sixth Amendment, used race-based peremptory challenges against prospective jurors. In Batson v. Kentucky, the Supreme Court held that such race-based challenges violated the Constitution by denying a defendant equal protection of the law, but also held that mere statistical evidence of racial discrimination in the use of jury strikes was insufficient in the face of the prosecutor’s post-hoc, non-racial explanations. In reversing a subsequent decision finding a prosecutorial rationale unconvincing, the Court noted that any racially-neutral explanation was sufficient as long as the trial judge believed it. In such an environment, even a case where a prosecutor struck 20 of 21 prospective black jurors did not state a Batson claim where a racially-neutral, post-hoc rationalization was available to the prosecutor. And such an explanation is always available: “If prosecutors exist who . . . cannot create a ‘racially neutral’ reason for discriminating on the basis of race, bar exams are too easy.”
Judicially-created obstacles, based on a variety of legal doctrines, also prevent challenges to racially-tinged police tactics. For example, in City of Los Angeles v. Lyons, the Supreme Court declined to issue an injunction preventing the Los Angeles Police Department from using chokeholds during routine traffic stops. Lyons had been pulled over by the police because his car had a burned-out taillight. After the police officers ordered Lyons out of the car, spread his legs, subjected him to a patdown search, they applied a chokehold on him that permanently damaged his larynx and caused him to lose consciousness.
The Supreme Court held that Lyons lacked standing to obtain an injunction against the police procedure because he could not demonstrate that he would ever again be subjected to a chokehold by the LAPD under these circumstances. In so ruling, the court overlooked evidence that the LAPD had applied the chokehold on 975 occasions over 5 years, and that application of the chokehold had resulted in 16 deaths, 12 of which were of blacks. The Court also overlooked Lyons’ claim that, as a black man, he faced a heightened risk of being subjected to the practice in the future – a claim that, given the prevalence of both racial profiling and police brutality against minorities, was hardly unreasonable. The Court set a standard that would make it nearly impossible for any black victim of police misconduct to prevail in seeking that such conduct be enjoined:
Lyons would have had not only to allege that he would have another encounter with the police but also to make the incredible assertion either (1) that all police officers in Los Angeles always choke any citizen with whom they happen to have an encounter, whether for the purpose of arrest, issuing a citation or for questioning, or (2) that the City ordered or authorized police officers to act in such a manner.
Other Supreme Court decisions regarding discriminatory police practices are discouraging as well. In both O’Shea v. Littleton and Rizzo v. Goode, the Court held that cases seeking to halt law enforcement discrimination could only proceed upon a showing by the plaintiffs that (1) the plaintiff would face a situation that would bring about the discriminatory treatment again, and (2) the discriminatory action would be certain to occur in that situation. Where an officer has discretion to utilize a particular law enforcement tactic, it is virtually impossible to satisfy this standard. Since most police tactics are discretionary, they are shielded from judicial scrutiny.
The Court’s treatment of pretextual traffic stops further forecloses challenges to law enforcement practices that disproportionately burden blacks and Hispanics. In Whren v. United States, the Court upheld a purely pretextual traffic stop, one based on no specific evidence of additional criminal activity. Indeed, the Court held that even if a reasonable officer would not have stopped the car in question, the mere existence of a traffic offense constituted probable cause for the stop. As one judge wrote in a dissent criticizing such reasoning: “Given the ‘multitude of applicable traffic and equipment regulations’ in any jurisdiction, upholding a stop on the basis of a regulation seldom enforced opens the door to . . . arbitrary exercises of police discretion.” In effect, by approving the unfettered exercise of police discretion in the enforcement of the traffic laws, the Court in Whren has put the “driving while black” syndrome beyond constitutional scrutiny.
One very recent district court decision reaches a different conclusion about traffic stops and may present new opportunities for challenging racial profiling on constitutional grounds. In Farm Labor Organizing Committee v. Ohio State Highway Patrol, the court struck down the practice of asking drivers about their immigration status during routine traffic stops. The Court found that the practice was based on impermissible racial stereotyping.
Unfortunately, it is more customary for courts to uphold the exercise of police and prosecutorial discretion against challenges of racial unfairness, and in doing so courts often turn a blind eye to the manner in which police carry out their duties in minority communities. The Supreme Court’s recent decision in Illinois v. Wardlow is illustrative. There, the Court considered whether an individual’s flight from the police, by itself, furnished a sufficient basis for an investigative stop of that individual. While the Court wisely declined to adopt the view that such flight always furnishes sufficient grounds for an investigative stop, it noted that flight from a police-patrolled area may furnish grounds for a stop in certain circumstances, and upheld the stop and consequent conviction of Wardlow, a black man stopped in a high-crime Chicago neighborhood. The Court insisted that “[a]llowing officers confronted with such flight to stop the fugitive and investigate further is quite consistent with the individual’s right to go about his business . . . .” In dissent, Justice Stevens, responded:
Among some citizens, particularly minorities and those residing in high crime areas, there is also the possibility that the fleeing person is entirely innocent, but, with or without justification, believes that contact with the police can itself be dangerous, apart form any criminal activity associated with the officer’s sudden presence. For such a person, unprovoked flight is neither “aberrant” nor “abnormal.” Moreover, these concerns and fears are known to the police officers themselves, and are validated by law enforcement investigations into their own practices. Accordingly, the evidence supporting the reasonableness of these beliefs is too pervasive to be dismissed as random or rare, and too persuasive to be disparaged as inconclusive or insufficient.
The courts have upheld not only the exercise of police and prosecutorial discretion; they also have upheld laws that cause discriminatory results, such as the powder/crack sentencing laws and guidelines. Numerous federal courts have reviewed this sentencing disparity on equal protection grounds. These challenges have been consistently rejected by courts relying on the Supreme Court’s holding in McCleskey that mere statistical disparities are insufficient to prove intentional discrimination against minorities.
The judiciary’s use of evidentiary thresholds and procedural barriers to foreclose challenges to racially-based law enforcement has sustained a criminal process that provides, for too many Americans, “too little justice.” Particularly disturbing is the courts’ emphasis on intentional discrimination: “[T]he main problem with this intent-focused analysis is that it is backward-looking. Although perhaps adequate in combating straightforward and explicit discrimination as it existed in the past, it is totally deficient as a remedy for the more complex and systemic discrimination that African-Americans [and other minorities] currently experience.” The judicial decisions on race and the criminal justice system afford few remedies for anything but the most blatant (and generally outdated) forms of racial and ethnic discrimination.