How and Why Race Continues to Influence the Administration of Criminal Justice in Louisiana

Author:Robert J. Smith - Bidish J. Sarma
Pages:361-407
SUMMARY

Introduction - I. The outcomes triggering the deeper inquiry: racial disparities permeate louisiana’s criminal justice system - II. Non-unanimous jury verdicts - III. Peremptory strikes - IV. Death-qualification - V. The inter-relatedness of non-unanimous jury verdicts, peremptory challenges, and death qualification

 
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How and Why Race Continues to Influence the
Administration of Criminal Justice in Louisiana
Robert J. Smith and Bidish J. Sarma
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. That is what I have done. And that is
what I must continue to do.
Reed Walters, district attorney in LaSalle Parish responsible for
prosecuting the Jena Six (Justice in Jena, N.Y. TIMES, Sept. 26,
2007).
[These laws] do not on their face discriminate between the
races, and it has not been shown that their actual administration
was evil; only that evil was possible under them. It follows,
therefore, that the judgment [upholding these laws] must be
affirmed.
Unanimous opinion of the United States Supreme Court in
Williams v. Mississippi, 170 U.S. 213, 225 (1898), which upheld
property qualifications, educational qualifications, and other
means explicitly designed to prevent African Americans from
being qualified to vote.
INTRODUCTION
On May 12, 2010, we went to the Louisiana Supreme Court to
argue on behalf of a death row inmate in State v. Dressner.1 The
case emerged from Jefferson Parish, Louisiana. At trial, the
prosecution used its peremptory challenges to exclude seven of
Copyright 2012, by ROBERT J. SMITH AND BIDISH J. SARMA.
A significant portion of this Article originates from three sources. See
Bidish J. Sarma, An Enduring (and Disturbing) Legacy: Race-Neutrality, Judicial
Apathy, and the Civic Exclusion of African-Americans in Louisiana, 1 HLRe 49
(2011); G. Ben Cohen & Robert J. Smith, The Racial Geography of the Federal
Death Penalty, 85 WASH. L. REV. 425 (2010); G. Ben Cohen & Robert J. Smith,
Choosing Life or Death (Implicitly), in IMP LICIT RACE BIAS ACROSS THE LAW
(forthcoming 2012). We view this Article as a culmination of our recent writing on
race and the criminal justice system, and an opportunity to discuss our personal
experiences as practicing death penalty lawyers in Louisiana.
1. Bidish Sarma and Robert Smith served as co-counsel for Dustin
Dressner on direct appeal of his capital conviction.
362 LOUISIANA LAW REVIEW [Vol. 72
nine qualified prospective black jurors.2 Only one person of color
ultimately sat on the jury, despite the fact that African-American
residents constituted approximately 25% of the population in the
Parish.3 Four years earlier, attorneys from our office urged the
Louisiana Supreme Court to reverse another case out of Jefferson
Parish where the State had struck every one of the five qualified
prospective black jurors. The prosecutor in that case told reporters
that it was his “O.J. [Simpson] case” and later pleaded with jurors
not to let Allen Snyder get away with it like O.J. did.4
While briefing and arguing Dressner, we recognized that the
distance between the post-Reconstruction legacy of racism in
Louisiana and the present day administration of justicemuch like
the distance between the quote from the Supreme Court’s opinion
in Williams v. Mississippi and the statement from Reed Walters
is not as far as one may wish to believe.5 The prosecutor at Mr.
Dressner’s trial had gone so far as to suggest that he struck
African-American prospective jurors because they espoused views
that were friendly to the State. Nevertheless, the Louisiana
Supreme Court denied the claims of prosecutorial race
2. See Unpublished Appendix at *8 n.8, State v. Dressner, 45 So. 3d 127
(La. 2010) (No. 08-KA-1366) (on file with authors).
3. See U.S. CENSUS BUREAU, State & County QuickFacts: Jefferson
Parish, LA, http://quickfacts.census.gov/qfd/states/22/22051.html (last visited
Oct. 13, 2011); see also RICHARD BOURKE, JOE HINGSTON & JOEL DEVINE, LA.
CRISIS ASSISTANCE CTR., BLACK STRIKES: A STUDY OF THE RACIALLY
DISPARATE USE OF PEREMPTORY CHALLENGES BY THE JEFFERSO N PAR ISH
DISTRIC T ATTORNEYS OFFICE (2003), available at http://www.blackstrikes.
com/resources/report/black_strikes_report_september_2003.doc.
4. See State v. Snyder, 942 So. 2d 484, 49899 (La. 2006), rev’d, Snyder
v. Louisiana, 552 U.S. 472 (2008). The Louisiana Supreme Court upheld Mr.
Snyder’s conviction and rejected the claim of racial discrimination, but in
Snyder v. Louisiana, a 72 opinion authored by Justice Alito, the Supreme Court
of the United States reversed. Snyder v. Louisiana, 552 U.S. 472 (2008).
5. Indeed, in the atrium of the Louisiana Supreme Court, a portrait of
Ernest Benjamin Kruttschnitt prominently hangs directly to the left of the main
entrance. E.B. Kruttschnitt was the legal architect of a system that was designed
to ensure the “supremacy” of the Anglo-Saxon race through terms that would
avoid the scrutiny of “Massachusetts” judges. OFFICIAL JOURNAL OF THE
PROCEEDINGS OF THE CONSTITUTIONAL CONVENT ION OF THE STATE OF
LOUISIANA: HELD IN NEW ORLEANS, TUESDAY, FEBRUARY 8, 1898, at 381
(1898) [hereinafter LOUISIANA CONSTITUTIONAL CONVENTION JOURNAL]. In
1898, more than 25 years after the Reconstruction Amendments provided
African-American citizens with the right to participate in their government,
Louisiana held its second Constitutional Convention. Serving as its President,
Kruttschnitt called into order what he deemed to be “little more than a family
meeting of the Democratic party of the State of Louisiana.” Id. at 89. In the
end, he vowed to “protect the purity of the ballot box and to perpetuate the
supremacy of the Anglo -Saxon race in Louisiana.” Id. at 381.
2012] RACE AND CRIMINAL JUSTICE IN LOUISIANA 363
discrimination, rejecting them in an unpublished appendix.6 Yet,
the question of whether the State continues to discriminate because
of skin color ought not be buried or forgotten.7 Indeed, the racial
disparities reflected across a number of criminal justice contexts in
Louisiana warrant fresh inquiry.8
This Article seeks to add texture to the analysis of how and
why race influences the criminal justice system. It considers three
mechanisms that exclude black citizens from jury service at a
disproportionate rate and thus dilute their influence: (1) non-
unanimous jury verdicts; (2) discriminatory peremptory
challenges; and (3) death-qualification. It details how African
Americans are systematically disenfranchised from participating in
the administration of justice and why these processes drive
substantively unequal outcomes. The Article’s aim is primarily
descriptive. Part I provides the contemporary context, setting out
the racial disparities that pervade Louisiana’s criminal justice
system. These outcomes are largely a result of the processes that
are numbered above and explored in the four parts that follow. Part
II explores how the laws enacted by 19th-century white
supremacists continue to operate today, and do so—regardless of
modern intent—in a way that executes their intended
discriminatory purposes. Part III discusses the State’s use of
peremptory challenges. These challenges do not stem from
discriminatory origins but nonetheless perpetuate racial exclusion.
Part IV describes the racial impact that death-qualification has on
juries’ composition in capital cases. Part V concludes, observing
that these factors are both interdependent and mutually reinforcing.
Each factor causes negative feedback loops that inhibit the ability
of minority group members to participate meaningfully in the
justice system and exact political change.
6. See generally Unpublished Appendix, Dressner, 45 So. 3d 127 (La.
2010) (No. 08-KA-1366) (on file with authors).
7. See Smith v. United States, 502 U.S. 1017, 1020 n.* (1991) (Blackmun,
J., dissenting from the denial of certiorari) (“The fact that the Court of Appeals’
opinion is unpublished is irrelevant. Nonpublication must not be a convenient
means to prevent review. An unpublished opinion may ha ve a lingering effect in
the [jurisdiction] and surely is as important to the parties concerned as is a
published opinion.”).
8. See infra Part I.

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