No Equal Justice: Race and Class in the American Criminal Justice System.

AuthorRosenbaum, Mark D.


That justice is a blind goddess Is a thing to which we black are wise. Her bandage hides two festering sores That once perhaps were eyes.(1) It ain't no secret, Ain't no secret my friend, You can get killed just for living In your American skin.(2) I. INTRODUCTION

Once again, issues of race, ethnicity, and class within our criminal justice system have been thrust into the public spotlight. On both sides of the country, in our nation's two largest cities, police are being called to account for acts of violence directed toward poor people of color.

In New York City, a West African immigrant named Amadou Diallo was killed by four white police officers, who fired forty-one bullets at the unarmed man as he stood in the vestibule of his apartment building in a poor section of the Bronx.(3) Did race influence the officers' decisions to fire the fatal shots? Did the social class of Mr. Diallo or of the jury in Albany, to which the officers' trials were transferred, influence the decision to acquit the officers?(4)

In Los Angeles, a former officer with the CRASH(5) Unit of the Los Angeles Police Department's Rampart Division has described, in excruciating detail, at least thirty police officers' repeated misuses of their authority in an impoverished area of predominantly Latino immigrants.(6) The scandal, which the Police Department itself conservatively estimates to implicate a staggering 120 cases, involved the shooting of unarmed people, conspiracies to put the innocent in jail, planting guns on suspects, and orchestrating the deportation of witnesses to police abuses.(7) Could such massive and flagrant abuses of police power have festered for so long if they had instead transpired in a white, middle-class neighborhood?

Even aside from their obvious political and social significance, these disturbing events raise questions of enormous constitutional moment. For if race, ethnicity, and class do in fact play a role in the enforcement of our criminal laws -- if, for example, race-based stereotyping influenced the police officers' decision to fire on Mr. Diallo, or if the poverty and ethnicity of those victimized in Los Angeles contributed to the lawlessness of the CRASH Unit and the numerous dubious convictions obtained as a result(8) -- then inquiry must also be directed at the criminal justice system as a whole. From police, to juries, to prosecutors, and perhaps even to legislative bodies, the system begins to appear inimical to our core constitutional values. We would like to believe that our criminal justice system does more than pay lip service to the command of equality. We would like to believe that everyone, whether black, brown, or white, and whether rich or poor, will be treated fairly. We would like to believe that the administration of criminal justice lives up to the pledge carved into the frieze of the United States Supreme Court building for all to see: "EQUAL JUSTICE UNDER LAW." But does it?

The thesis that America's criminal justice system institutionally discriminates along race and class lines is scarcely new.(9) Yet, notwithstanding the weight of this claim as it bears on the proper functioning of a constitutional democracy, it has never been presented to the Supreme Court as such. However odd this may first appear, no decision of the Court has confronted head-on the staggering implications of such an unequal system in a society that aspires to egalitarianism. While the Court has, in the past, voided discriminatory school(10) and electoral systems,(11) the criminal justice system has largely escaped such scrutiny. The Court, of course, has considered challenges to specific procedures that disproportionately affect poor people and minorities, such as the failure to provide counsel to indigent defendants(12) and backroom interrogations without benefit of counsel.(13) It has also considered alleged racial discrimination in the administration of the death penalty.(14) But, as if granted immunity, the criminal justice system as a whole appears to be the component of government that the Fourteenth Amendment's commandment of equality left behind.(15)

Constitutional litigation is often expressive of a sense of moral urgency, alerting both the judiciary and society at large to government's failure to live up to the Constitution's promise.(16) The question, then, is why this sense of moral urgency has generally not attended judicial consideration of the criminal justice system? Does ingrained discrimination within the criminal justice system fall outside the limits of constitutional jurisprudence? If so, are those limits inherent or by craft? And should we not consider whether, instead of being exempt from constitutional scrutiny, racial inequalities within the criminal justice system should actually receive especially careful attention?(17)


    David Cole's No Equal Justice: Race and Class in the American Criminal Justice System(18) argues that the criminal justice "system's legitimacy turns on equality before the law, but the system's reality could not be further from that ideal" (p. 3). As Cole sees it:

    [T]he administration of criminal law -- whether by the officer on the beat, the legislature, or the Supreme Court -- is in fact predicated on the exploitation of inequality.... Absent race and class disparities, the privileged among us could not enjoy as much constitutional protection of our liberties as we do; and without those disparities, we could not afford the policy of mass incarceration that we have pursued over the past two decades. [p. 5] As this theme dictates, No Equal Justice amasses an impressive set of statistics and case studies to expose the fiction that police departments, prosecutors, juries, courts, and legislatures operate in race- and class-neutral fashion.(19) No facet of the criminal justice system goes unexamined or untarnished. The pervasiveness of race and class bias produces, for example, spurious consent searches (pp. 27-34): pretextual motorist stops based upon race-stereotyped profiling (pp. 34-41); woefully incompetent, overburdened, and underpaid defense counsel, even in capital cases (pp. 76-891); drug laws with markedly disparate racial impacts (pp. 141-46); and all-white juries resulting from selection practices that exclude minorities (pp. 115-23). Cole subjects all of these practices to unrelenting scrutiny. According to Cole, when they are challenged separately in litigation, the Supreme Court either looks the other way or acknowledges the mandate of equality with a wink and a nod while ultimately failing to enforce that mandate.(20)

    Cole offers several insights into how the Supreme Court's criminal decisions, especially those of the Rehnquist Court, have solidified the inequalities he identifies. He charges that "[b]y exploiting society's `background' inequality, the Court sidesteps the difficult question of how much constitutional protection we could afford if we were willing to ensure that it was enjoyed equally by all people" (p. 7). As an illustration of this background inequality, Cole cites "a predominantly white Congress [that] has mandated prison sentences for the possession and distribution of crack cocaine one hundred times more severe than the penalties for powder cocaine" (p. 8). This mandate has had a disparate racial impact, since blacks constitute 90% of crack convictions but only 20% of powder convictions (p. 8). Cole demonstrates that the sentencing law's impact on African-American defendants is magnified by prosecutors' decisions of whom to charge. According to U.S. Sentencing Commission data, 65% of crack cocaine users are white;(21) yet in 1992, 92.6% of those convicted for crack-related crimes were African American and only 4.1% were white (p. 142). Cole also discusses the alarmingly high rate of black incarceration, showing that, if the nationwide incarceration rate for whites were the same as the rate for blacks, "more than 3.5 million white people would be incarcerated today, instead of 570,000, and we would need more than three times the prison capacity (and prosecution and court capacity) that we currently have" (pp. 151-52).

    Such disparities in prosecution and incarceration have evaded constitutional challenge under the Equal Protection Clause, because challengers must prove that prosecutors, legislators, or jurors intended to discriminate, an almost insuperable obstacle.(22) Cole argues that these disparities -- regardless of whether invidious intent can be proven -- threaten the very legitimacy of our criminal justice system. He therefore takes issue with those who, in Cole's words, "argue that as long as we can rid the criminal justice system of explicit and intentional considerations of race, we will have solved the problem of inequality in criminal justice."(23)

    The statistics and anecdotes that Cole collects paint a startling portrait of a criminal justice system that -- whether by design or not -- metes out disproportionately harsh treatment to racial minorities, especially those who are also disadvantaged by poverty. This evidence makes it difficult to argue with Cole's thesis that racial justice cannot be obtained simply by "banning intentional racism from the system" (p. 10), at least as the Supreme Court has generally conceived of "intentional racism." But what would be required for our system to achieve this equality ideal, or at least to move closer to it? Although Cole's book, as we shall explain, does not provide as clear an answer to this overarching question as one might like, his portrait of the criminal justice system strongly suggests that wholesale reevaluation of the Supreme Court's jurisprudence with respect to criminal justice is in order.

    The most compelling part of No Equal Justice is Cole's sharp-eyed analysis of how the federal...

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