The New Jim Crow

by Alexander, Michelle

  Not only did the Court reject the petitioners’ central claim—that using traffic stops as a pretext for drug investigations is unconstitutional—it ruled that claims of racial bias could not be brought under the Fourth Amendment. In other words, the Court barred any victim of race discrimination by the police from even alleging a claim of racial bias under the Fourth Amendment. According to the Court, whether or not police discriminate on the basis of race when making traffic stops is irrelevant to a consideration of whether their conduct is “reasonable” under the Fourth Amendment.

  The Court did offer one caveat, however. It indicated that victims of race discrimination could still state a claim under the equal protection clause of the Fourteenth Amendment, which guarantees “equal treatment under the laws.” This suggestion may have been reassuring to those unfamiliar with the Court’s equal protection jurisprudence. But for those who have actually tried to prove race discrimination under the Fourteenth Amendment, the Court’s remark amounted to cruel irony. As we shall see below, the Supreme Court has made it virtually impossible to challenge racial bias in the criminal justice system under the Fourteenth Amendment, and it has barred litigation of such claims under federal civil rights laws as well.

  Closing the Courthouse Doors—McCleskey v. Kemp

  First, consider sentencing. In 1987, when media hysteria regarding black drug crime was at fever pitch and the evening news was saturated with images of black criminals shackled in courtrooms, the Supreme Court ruled in McCleskey v. Kemp that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent. On its face, the case appeared to be a straightforward challenge to Georgia’s death penalty scheme. Once the Court’s opinion was released, however, it became clear the case was about much more than the death penalty. The real issue at hand was whether—and to what extent—the Supreme Court would tolerate racial bias in the criminal justice system as a whole. The Court’s answer was that racial bias would be tolerated—virtually to any degree—so long as no one admitted it.

  Warren McCleskey was a black man facing the death penalty for killing a white police officer during an armed robbery in Georgia. Represented by the NAACP Legal Defense and Education Fund, McCleskey challenged his death sentence on the grounds that Georgia’s death penalty scheme was infected with racial bias and thus violated the Fourteenth and Eighth Amendments. In support of his claim, he offered an exhaustive study of more than two thousand murder cases in Georgia. The study was known as the Baldus study—named after Professor David Baldus, who was its lead author. The study found that defendants charged with killing white victims received the death penalty eleven times more often than defendants charged with killing black victims. Georgia prosecutors seemed largely to blame for the disparity; they sought the death penalty in 70 percent of cases involving black defendants and white victims, but only 19 percent of cases involving white defendants and black victims.47

  Sensitive to the fact that numerous factors besides race can influence the decision making of prosecutors, judges, and juries, Baldus and his colleagues subjected the raw data to highly sophisticated statistical analysis to see if nonracial factors might explain the disparities. Yet even after accounting for thirty-five nonracial variables, the researchers found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks. Black defendants, like McCleskey, who killed white victims had the highest chance of being sentenced to death in Georgia.48

  The case was closely watched by criminal lawyers and civil rights lawyers nationwide. The statistical evidence of discrimination that Baldus had developed was the strongest ever presented to a court regarding race and criminal sentencing. If McCleskey’s evidence was not enough to prove discrimination in the absence of some kind of racist utterance, what would be?

  By a one-vote margin, the Court rejected McCleskey’s claims under the Fourteenth Amendment, insisting that unless McCleskey could prove that the prosecutor in his particular case had sought the death penalty because of race or that the jury had imposed it for racial reasons, the statistical evidence of race discrimination in Georgia’s death penalty system did not prove unequal treatment under the law. The Court accepted the statistical evidence as valid but insisted that evidence of conscious, racial bias in McCleskey’s individual case was necessary to prove unlawful discrimination. In the absence of such evidence, patterns of discrimination—even patterns as shocking as demonstrated by the Baldus study—did not violate the Fourteenth Amendment.

  In erecting this high standard, the Court knew full well that the standard could not be met absent an admission that a prosecutor or judge acted because of racial bias. The majority opinion openly acknowledged that longstanding rules generally bar litigants from obtaining discovery from the prosecution regarding charging patterns and motives, and that similar rules forbid introduction of evidence of jury deliberations even when a juror has chosen to make deliberations public.49 The very evidence that the Court demanded in McCleskey—evidence of deliberate bias in his individual case—would almost always be unavailable and/or inadmissible due to procedural rules that shield jurors and prosecutors from scrutiny. This dilemma was of little concern to the Court. It closed the courthouse doors to claims of racial bias in sentencing.

  There is good reason to believe that, despite appearances, the McCleskey decision was not really about the death penalty at all; rather, the Court’s opinion was driven by a desire to immunize the entire criminal justice system from claims of racial bias. The best evidence in support of this view can be found at the end of the majority opinion where the Court states that discretion plays a neccessary role in the implementation of the criminal justice system, and that discrimination is an inevitable by-product of discretion. Racial discrimination, the Court seemed to suggest, was something that simply must be tolerated in the criminal justice system, provided no one admits to racial bias.

  The majority observed that significant racial disparities had been found in other criminal settings beyond the death penalty, and that McCleskey’s case implicitly calls into question the integrity of the entire system. In the Court’s words: “Taken to its logical conclusion, [Warren McCleskey’s claim] throws into serious question the principles that underlie our criminal justice system. . . . [I]f we accepted McCleskey’s claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.”50 The Court openly worried that other actors in the criminal justice system might also face scrunity for allegedly biased decision-making if similar claims of racial bias in the system were allowed to proceed. Driven by these concerns, the Court rejected McCleskey’s claim that Georgia’s death penalty system violates the Eighth Amendment’s ban on arbitrary punishment, framing the critical question as whether the Baldus study demonstrated a “constitutionally unacceptable risk” of discrimination. Its answer was no. The Court deemed the risk of racial bias in Georgia’s capital sentencing scheme “constitutionally acceptable.” Justice Brennan pointedly noted in his dissent that the Court’s opinion “seems to suggest a fear of too much justice.”51

  Cracked Up—Discriminatory Sentencing in the War on Drugs

  Anyone who doubts the devastating impact of McCleskey v. Kemp on African American defendants throughout the criminal justice system, including those ensnared by the War on Drugs, need only ask Edward Clary. Two months after his eighteenth birthday, Clary was stopped and searched in the St. Louis airport because he “looked like” a drug courier. At the time, he was returning home from visiting some friends in California. One of them persuaded him to take some drugs back home to St. Louis. Clary had never attempted to deal drugs before, and he had no criminal record.

  During the search, the police found crack cocaine and promptly arrested him. He was convicted in federal court and sen
tenced under federal laws that punish crack offenses one hundred times more severely than offenses involving powder cocaine. A conviction for the sale of five hundred grams of powder cocaine triggers a five-year mandatory sentence, while only five grams of crack triggers the same sentence. Because Clary had been caught with more than fifty grams of crack (less than two ounces), the sentencing judge believed he had no choice but to sentence him—an eighteen-year-old, first-time offender—to a minimum of ten years in federal prison.

  Clary, like defendants in other crack cases, challenged the constitutionality of the hundred-to-one ratio. His lawyers argued that the law is arbitrary and irrational, because it imposes such vastly different penalties on two forms of the same substance. They also argued that the law discriminates against African Americans, because the majority of those charged with crimes involving crack at that time were black (approximately 93 percent of convicted crack offenders were black, 5 percent were white), whereas powder cocaine offenders were predominantly white.

  Every federal appellate court to have considered these claims had rejected them on the ground that Congress—rightly or wrongly—believed that crack was more dangerous to society, a view supported by the testimony of some drug-abuse “experts” and police officers. The fact that most of the evidence in support of any disparity had since been discredited was deemed irrelevant; what mattered was whether the law had seemed rational at the time it was adopted. Congress, the courts concluded, is free to amend the law if circumstances have changed.

  Courts also had rejected claims that crack sentencing laws were racially discriminatory, largely on the ground that the Supreme Court’s decision in McCleskey v. Kemp precluded such a result. In the years following McCleskey , lower courts consistently rejected claims of race discrimination in the criminal justice system, finding that gross racial disparities do not merit strict scrutiny in the absence of evidence of explicit race discrimination—the very evidence unavailable in the era of colorblindness.

  Judge Clyde Cahill of the Federal District of Missouri, an African American judge assigned Clary’s case, boldly challenged the prevailing view that courts are powerless to address forms of race discrimination that are not overtly hostile. Cahill declared the hundred-to-one ratio racially discriminatory in violation of the Fourteenth Amendment, notwithstanding McCleskey .52 Although no admissions of racial bias or racist intent could be found in the record, Judge Cahill believed race was undeniably a factor in the crack sentencing laws and policies. He traced the history of the get-tough movement and concluded that fear coupled with unconscious racism had led to a lynch-mob mentality and a desire to control crime—and those deemed responsible for it—at any cost. Cahill acknowledged that many people may not believe they are motivated by discriminatory attitudes but argued that we all have internalized fear of young black men, a fear reinforced by media imagery that has helped to create a national image of the young black male as a criminal. “The presumption of innocence is now a legal myth,” he declared. “The 100-to-1 ratio, coupled with mandatory minimum sentencing provided by federal statute, has created a situation that reeks with inhumanity and injustice.... If young white males were being incarcerated at the same rate as young black males, the statute would have been amended long ago.” Judge Cahill sentenced Clary as if the drug he had carried home had been powder cocaine. The sentence imposed was four years in prison. Clary served his term and was released.

  The prosecution appealed Clary’s case to the Eighth Circuit Court of Appeals, which reversed Judge Cahill in a unanimous opinion, finding that the case was not even close. In the court’s view, there was no credible evidence that the crack penalties were motivated by any conscious racial bigotry, as required by McCleskey v. Kemp. The court remanded the case back to the district court for resentencing. Clary—now married and a father—was ordered back to prison to complete his ten-year term.53

  Few challenges to sentencing schemes, patterns, or results have been brought since McCleskey, for the exercise is plainly futile. Yet in 1995, a few brave souls challenged the implementation of Georgia’s “two strikes and you’re out” sentencing scheme, which imposes life imprisonment for a second drug offense. Georgia’s district attorneys, who have unbridled discretion to decide whether to seek this harsh penalty, had invoked it against only 1 percent of white defendants facing a second drug conviction but against 16 percent of black defendants. The result was that 98.4 percent of those serving life sentences under the provision were black. The Georgia Supreme Court ruled, by a 4-3 vote, that the stark racial disparity presented a threshold case of discrimination and required the prosecutors to offer a race-neutral explanation for the results. Rather than offer a justification, however, the Georgia attorney general filed a petition for rehearing signed by every one of the state’s forty-six district attorneys, all of whom were white. The petition argued that the Court’s decision was a dire mistake; if the decision were allowed to stand and prosecutors were compelled to explain gross racial disparities such as the ones at issue, it would be a “substantial step toward invalidating” the death penalty and would “paralyze the criminal justice system”—apparently because severe and inexplicable racial disparities pervaded the system as a whole. Thirteen days later, the Georgia Supreme Court reversed itself, holding that the fact that 98.4 percent of the defendants selected to receive life sentences for repeat drug offenses were black required no justification. The court’s new decision relied almost exclusively on McCleskey v. Kemp. To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States.

  Charging Ahead—Armstrong v. United States

  If sentencing were the only stage of the criminal justice process in which racial biases were allowed to flourish, it would be a tragedy of gargantuan proportions. Thousands of people have had years of their lives wasted in prison—years they would have been free if they had been white. Some, like McCleskey, have been killed because of the influence of race in the death penalty. Sentencing, however, is not the end, but just the beginning. As we shall see, the legal rules governing prosecutions, like those that govern sentencing decisions, maximize rather than minimize racial bias in the drug war. The Supreme Court has gone to great lengths to ensure that prosecutors are free to exercise their discretion in any manner they choose, and it has closed the courthouse doors to claims of racial bias.

  As discussed in chapter 2, no one has more power in the criminal justice system than prosecutors. Few rules constrain the exercise of prosecutorial discretion. The prosecutor is free to dismiss a case for any reason or no reason at all, regardless of the strength of the evidence. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists. Whether a good plea deal is offered to a defendant is entirely up to the prosecutor. And if the mood strikes, the prosecutor can transfer drug defendants to the federal system, where the penalties are far more severe. Juveniles, for their part, can be transferred to adult court, where they can be sent to adult prison. Angela J. Davis, in her authoritative study Arbitrary Justice: The Power of the American Prosecutor, observes that “the most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable.”54 Most prosecutors’ offices lack any manual or guidebook advising prosecutors how to make discretionary decisions. Even the American Bar Association’s standards of practice for prosecutors are purely aspirational; no prosecutor is required to follow the standards or even consider them.

  Christopher Lee Armstrong learned the hard way that the Supreme Court has little interest in ensuring that prosecutors exercise their extraordinary discretion in a manner that is fair and nondiscriminatory. He, along with four of his companions, was staying at a Los Angeles motel in April 1992 when federal and state agents on a joint drug crime task force raided their room and arrested them on federal drug charges—conspiracy to distribut
e more than fifty grams of crack cocaine. The federal public defenders assigned to Armstrong’s case were disturbed by the fact that Armstrong and his friends had something in common with every other crack defendant their office had represented during the past the past year: they were all black. In fact, of the fifty-three crack cases their office had handled over the prior three years, forty-eight defendants were black, five were Hispanic, and not a single one was white. Armstrong’s lawyers found it puzzling that no white crack offenders had been charged, given that most crack offenders are white. They suspected that whites were being diverted by federal prosecutors to the state system, where the penalties for crack offenses were far less severe. The only way to prove this, though, would be to gain access to the prosecutors’ records and find out just how many white defendants were transferred to the state system and why. Armstrong’s lawyers thus filed a motion asking the district court for discovery of the prosecutors’ files to support their claim of selective prosecution under the Fourteenth Amendment.

  Nearly one hundred years earlier, in a case called Yick Wo v. Hopkins, the Supreme Court had recognized that racially selective enforcement violates equal protection of the laws. In that case, decided in 1886, the Court unanimously overturned convictions of two Chinese men who were operating laundries without a license. San Francisco had denied licenses to all Chinese applicants, but granted licenses to all but one of the non-Chinese laundry operators who applied. Law enforcement arrested more than a hundred people for operating laundries without licenses, and every one of the arrestees was Chinese. Overturning Yick Wo’s conviction, the Supreme Court declared in a widely quoted passage, “Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances . . . the denial of equal justice is still within the prohibition of the Constitution.”55 Armstrong’s lawyers sought to prove that, like the law at issue in Yick Wo, federal crack laws were fair on their face and impartial in their appearance, but were selectively enforced in a racially discriminatory manner.