Foreword: addressing the real world of racial injustice in the criminal justice system.

• Author: Coker, Donna

Reading Supreme Court decisions in criminal cases often feels like falling down the rabbit hole: (1) a bizarre adventure where nothing is what the Court says it is and circular reasoning passes for analysis. In the Court's Fourth Amendment jurisprudence, "there is a tendency ... to pretend that the world we all know is not the world in which law enforcement operates." (2) This is a "raceless world ... a constructed reality in which most police officers do hot act on the basis of considerations of race, the facts underlying a search or seizure can be evaluated without examining the influence of race, and the applicable constitutional mandate is wholly unconcerned with race." (3) It is a world in which abuse of power by law enforcement (4) and prosecutors (5) is rare and individuals, without regard to their location in the racial hierarchy, are presumed to know that they may refuse a police officer's search request (6) without dire consequences.

The Court's application of Equal Protection jurisprudence to criminal cases is similarly divorced from reality. As a number of scholars have noted, the Court's decision in Whren v. United States (7) divorces Equal Protection analysis from the Fourth Amendment's control on police discretion. (8) Further, when law enforcement officers use express distinctions based on racial categories, rather than apply the strict scrutiny that would apply in other settings, (9) the Court has applied a reasonable suspicion test or less. (10) Finally, as reiterated in the 2002-03 term decision in United States v. Bass, (11) in those cases where the defendant seeks to demonstrate that despite a facially neutral category, the prosecutor brought charges or pursued heavier penalties because of his or her race, the Court's requirements make the defendant's burden of proof all but impossible to meet.

In this article I address the "real world" of criminal law enforcement. In the first section, I describe some of the overwhelming empirical evidence demonstrating unjust and unequal treatment in the criminal justice system of African Americans and, to a lesser extent, Latinos. Much of this injustice occurs as a result of America's drug enforcement policies. These policies provide the rationale for police to stop, search, and arrest, and for courts to incarcerate, disproportionate numbers of African American men and women. Drug enforcement policies are also the justification given by Attorney General John Ashcroft's Justice Department for the unequal number of African Americans charged with federal death penalty eligible crimes.

In the second section I describe the Supreme Court's response to claims of selective prosecution, that is, to claims that prosecutors sought tougher punishments for African Americans because of their race. The Supreme Court's discovery rule in United States v. Armstrong, (12) reiterated again this term in Bass, (13) made it practically impossible for defendants to prevail on selective prosecution claims. The Court set the standard for discovery very high: defendants must proffer evidence that "similarly situated" whites were treated more favorably. (14) The Court's intent-based jurisprudence forms the familiar obstacles to claims of discrimination, but the Court's deference to prosecutors embodied in its discovery ruling in these cases makes it much more difficult to make a selective prosecution claim than to bring claims of intentional discrimination in other contexts. The "similarly situated" data may not exist or the prosecutor may have exclusive access to the required data. In addition, the "similarly situated" standard is a wholly indeterminate standard. Courts that are hostile to selective prosecution claims can always find white comparators dissimilar.

In the third section I discuss the most prominent government rationale for race disparities in federal drug enforcement arrests and incarceration: that federal agents are focusing on violent street gangs engaged in large-scale drug trafficking and these gangs are predominantly African American in membership. This explanation also figures prominently in Attorney General Ashcroft's explanation of racial disparities in the federal death penalty system. (15) The validity of the government's empirical claim is undermined by research that finds that most drug offenders incarcerated in federal prisons are non-violent offenders and most are not affiliated with a criminal organization. In this section I also examine current Justice Department research regarding the causes of racial disparities in the federal death penalty system. I conclude that this research is too narrow in scope to provide the data most needed to test the government's empirical claims regarding drug offending.

The argument that African Americans are overrepresented in drug charging in federal court because they are disproportionately members of violent street gangs engaged in high volume trafficking demonstrates the case with which the government can defeat a defendant's claim that "similarly situated" whites were treated more favorably. There is no empirical data that would prove the government's claim and the data that does exist suggests that the claim may be inaccurate. But for the defendant who must proffer evidence of white violent gang members not similarly prosecuted in federal court, the burden is nearly impossible to meet.

In the final section, I examine the potential for change in the racial operation of the criminal justice system. I argue that changes in social perceptions of crime and criminal offending have the potential to result in legislative and policy changes. Such changes require organizing in communities of color, but also require challenges to white thinking about crime. I identify three major obstacles to changes in white perceptions. First are deeply embedded racist stereotypes of black criminality and dangerousness in white perceptions of crime. Second, whites tend to understand race discrimination to mean intentional acts of a bigoted actor. This framework focuses debate on the motives of law enforcement personnel, rather than on systemic racial injustice. Third, whites are seldom aware of the degree to which white privilege protects them from police suspicion and surveillance. The invisibility of white privilege (to whites) encourages them to presume that system maltreatment is, in some part, the fault of the victim of such maltreatment. Finally, I examine the growing Innocence Movement for its potential to be a vehicle for challenging these aspects of white support for, or complacency regarding, racial disparities in the criminal justice system.

1. THE REAL WORLD: THE IMPACT OF THE OPERATION OF THE CRIMINAL JUSTICE SYSTEM ON THE LIVES OF AFRICAN AMERICAN INDIVIDUALS

   In the domestic violence field, in which I do most of my work, we are plagued with a lack of data, particularly data on the effects of criminal justice system intervention in the lives of men, women, and children who are marginalized as a result of race, class, or immigrant status. (16) In contrast, a plethora of research demonstrates the overall negative impact of current drug enforcement policies on the lives of people of color who reside in poor inner city neighborhoods. (17) These policies harm both those who engage in criminal behavior as well as those who do not.

   For several years official incarceration data told the shocking truth: though African Americans make up about twelve percent of the national population, (18) they represent close to half of those who are incarcerated for crimes. (19) An estimated twelve percent of African American men ages twenty to thirty-four were either in jail or prison in 2002. (20) This compares to just 1.6% of white men in the same age group. (21) Researchers with the Bureau of Justice Statistics estimate that twenty-eight percent of African American males will be jailed or imprisoned at some point in their life. (22) A study conducted by the Sentencing Project reports that nearly one in three (32.2%) African American men between the ages of twenty and twenty-nine are under the supervision of the criminal justice system on any given day. (23)

   The "War on Drugs" policies that focus on supply-side enforcement against low-level dealers in inner city areas account for a significant amount of this racial disparity. (24) In federal prison, the federal 100-to-1 sentencing disparity between crack cocaine and powder cocaine, (25) coupled with a federal law enforcement focus on crack offenses, (26) also plays a significant role in creating the disparity.

   Despite higher rates of incarceration for drug offenses, data suggests that African Americans do not use drugs any more than do whites. (27) The 2001 National Household Survey on Drug Abuse found rates of illicit drug use to be 7.4% among African Americans, 7.2% among whites, and 6.4% among Hispanics. (28) Yet African Americans represent more than 57% (29) of those incarcerated for drug offenses in state prisons.

   This disproportionate incarceration is not confined to African American men. The number of incarcerated African American women has also risen sharply, again primarily as a result of drug enforcement policies. (30) In fact, the number of women in prison is growing at a much faster rate than is true for men, (31) and the largest increase is in the number of African American women. (32)

   The interaction of drug enforcement policies and federal mandatory sentencing laws operate in a particularly pernicious way for African American women charged with drug crimes. This is true because many women convicted for drug offenses played minor roles in drug transactions for which their intimate (or former intimate) partner was a major player. (33) Mandatory sentencing eliminated whatever leniency might have been afforded such women. (34) In an ironic twist, because these women are such low-level players, they are often unable to provide useful information in exchange for the...