A Glaring Contrast: Criminal Justice in Black and White
THE WALL STREET JOURNAL
© 1992 Dow Jones & Company, Inc.
Thursday, May 14, 1992
(No. 95, Western Edition)
Recent editorials in this newspaper following the violent reaction to the Rodney King verdict have laid the blame for the explosion on lousy schools, families without fathers, permissive attitudes toward drugs and sex, and last but not least, the minimum wage. The only recognition that the criminal justice system might be at fault is a call for a more “hard-headed juvenile justice system.”
But the last thing I need is more hard-headed “tough on crime” rhetoric. Toughness is part of the problem.
Consider the following:
- A recent study by the National Center on Institutions and Alternatives found that 85% of all Washington, D.C., black males have been arrested at least once in their lifetimes.
- In a Memphis study on the excessive use of deadly force by police officers in pursuing suspects, it was learned that black suspects were 10 times more likely than white suspects to have been shot at by police officers, 18 times more likely to be wounded, and five times more likely to be killed.
- According to a 1989 survey by the National Institute on Drug Abuse, blacks made up 12% of drug users that year. But according to a USA Today article citing 1989 FBI figures, blacks accounted for 44% of all drug possession arrests.
- Under federal law, possession for personal use of five grams of crack cocaine (predominantly used by minorities) carries a five-year mandatory minimum sentence without parole. By contrast, such simple possession of any amount of powder cocaine, or any other drug, is a misdemeanor punishable by a maximum of one year.
- In Sacramento, where 70% of the people sent to prison for drug offenses are black, more than 63% of public drug treatment slots go to whites.
- A 1991 review of 700,000 criminal cases throughout the state of California showed that white defendants got better plea bargain deals than Latinos or blacks accused of similar crimes. The study also found that whites got more lenient sentences and went to prison less often.
In spite of the fact that whites sell most of the nation’s drugs and account for most of its customers, it is blacks and Latinos who continue to fill up America’s courtrooms and jails, largely because, in a political climate that demands a quick fix to the drug problem, their neighborhoods get treatment that would not be tolerated in more affluent, white areas.
Indeed, throughout America, blacks and Latinos report that their neighborhoods have been barricaded by the authorities; that roadblocks, similar to those in South Africa, have been set up for “I.D. checks”; that the police roust them from their homes, without warrants or probable cause, to search for “evidence”; that they are targeted as part of police “stop on sight” policies, and that they are discriminatorily arrested in sweep operations for minor traffic violations.
This flagrant disregard for constitutional rights is causing a troubling phenomenon in cities across the nation.
In New York, hundreds of black and Hispanic men have been caught in the New York Port Authority’s drug courier interdiction net. Once a suspect has been targeted by Port Authority police as fitting a “drug courier profile,” he is usually followed on board the bus, questioned, and eventually asked to permit a search of his bags. He is never told that he has the right to refuse. Of 210 people arrested in 1989, only one was white.
As New York Supreme Court Justice Carol Berkman aptly put it in one of her decisions on the issue, “Minorities did not fight their way up from the back of the bus just to be routinely stopped and interrogated on the way to the terminal.”
In Boston, police have made a “substantial” number of unconstitutional stops and searches of black youths, including strip searches conducted on public streets, according to a report issued in December 1990 by Massachusetts Attorney General James M. Shannon.
According to this report, these illegal searches were a result of public statements by commanding officers that minority youths in certain areas of Boston, particularly individuals suspected as being associated with gangs, should be stopped and frisked or searched, regardless of whether they were engaging in illegal activity and regardless of their constitutional rights.
The race of the victim counts for something too:
- In Dallas, the rape of a white woman results in an average sentence of 10 years while the rapist of a Latino woman gets five years and the rapist of a black woman gets two years.
- Nationally, murderers with white victims are up to 4.3l times more likely to be sentenced to death than murderers with black victims.
The Rodney King beating, verdict and violent reaction should prod America to remedy discrimination in the criminal justice system. Such efforts need to be in the forefront of my national agenda.
A promising start would be the passage of legislation recently voted down in Congress that would eliminate racial discrimination in the imposition of the death penalty. The Racial Justice Act would have permitted a challenge to a federal or state death sentence that furthers a racially discriminatory pattern of capital sentencing, in terms of either the race of the defendant or the race of the victim, based on statistical evidence.
Equally important would be prohibiting discriminatory, suspicionless dragnet sweeps recently permitted by the Supreme Court.
We would also do well to eliminate racial disparity in pre-trial detention. Black and Latino arrestees are far more likely than whites to be detained before trial. In Florida in 1989-90, blacks constituted 39% of felony marijuana cases but made up 58% of those detained before trial for that charge, according to a report by the Racial and Ethnic Bias Study Commission of the Florida Supreme Court. And, as any criminal lawyer knows, defendants who are incarcerated pre-trial are more likely to be convicted and to be sentenced to prison upon conviction.
Equal access to bail for all socio-economic classes requires that the amount of bail set be rationally tied to an individual defendant’s actual resources.
And speaking of resources, non-indigent defendants can often, in effect, buy their way out of prison time through an array of valid sentencing alternatives. Sentencing specialists to help design effective and individualized alternative sentences are commonly unavailable to indigent defendants. Alternative sentencing planning services should be provided in every public defender office, and funding should be authorized for sentencing specialists to assist appointed counsel.
Until “equal justice for all” becomes a reality, the rage will continue and there will be more firestorms to come.