Permeation of race, national origin and gender issues from initial law enforcement contact through sentencing: the need for sensitivity, equalitarianism and vigilance in the criminal justice system.

• Author: Burnett, Arthur L.
• Position: Symposium on bias in justice administration

1. INTRODUCTION

   This article takes a close look at the actual operation of the entire criminal justice system with reference to issues of racism, national origin and gender bias, from the initial police or law enforcement contact with the individual through the final process of sentencing the guilty offender.

   What is the remedy when, in the exercise of police discretion, a police officer takes an African-American or Hispanic youth into custody and tells a white youth in an identical situation to "get lost" and to be careful not to get caught again? If a police officer seizes for forfeiture a motor vehicle driven by an African-American, Hispanic or Asian-American youth upon smelling the aroma of marijuana, with some ashes still in the ashtray, but tells the white youngster "to clean himself up" and "go home," is there a problem with the fairness of our criminal justice system? If a prosecution is thus brought against the minority youth and a factual record establishes such invidious discrimination, would a court be justified in dismissing the criminal prosecution or rejecting the forfeiture?

   Is there evidence of racial or national origin discrimination when police officers set up "observation posts" in black neighborhoods or in Hispanic neighborhoods, but not in predominantly white neighborhoods? Similarly, consider this scenario: police officers observe through binoculars a hand-to-hand transaction or exchange on a corner between a black male and a black female, and conclude, based on asserted police experience, that they have just seen a narcotics transaction. But, what they saw may well have been a mere exchange of a dollar bill for four quarters to use in a nearby parking meter. Have the officers committed discrimination on the basis of race or national origin? Would the police officers have made the same assumption in a suburban shopping area regarding an exchange between two white individuals? To what extent should the character of the neighborhood influence the specific and articulable suspicion required by Terry v. Ohio,(1) with reference to meeting the standards for a stop and frisk, or probable cause required by the Fourth Amendment for an arrest?(2) To what extent are police experience and special expertise in observing narcotics transactions or other types of alleged criminal activity relevant factors in determining articulable suspicion or probable cause? Is this simply a pretext to justify police conduct and to sustain a prosecution at a motion to suppress hearing? To what extent should a judge or a magistrate, in issuing a search warrant based on a police affidavit, be influenced by generalizations about the neighborhood as a "high crime area," a "high unemployment area," or a "public housing area," and thus run the risk of applying a lower standard of probable cause than would be applied to an application for a search warrant for a single family residence in an affluent and predominantly white neighborhood?

   Law enforcement officials may use other law enforcement procedures in a manner which reflects either conscious or unconscious racial and national origin bias. To what extent do economic conditions of a neighborhood offset claims of racism or national origin discrimination as an objective, realistic and justifiable law enforcement consideration?(3) To what extent are "drug courier profiles" used to justify the police officers' stop, detention, seizure or arrest decisions on subtle factors, which may camouflage a bias based on racial and national origin factors, a bias which may have been their primary basis for acting?(4)

   Finally, we must stop, pause, and give serious consideration to the reverse of these situations. To what extent do minority defendants attempt to raise bias and discrimination issues as a bar to justifiable criminal prosecution and conviction? Sensitive and responsible criminal prosecutors, defense lawyers and judges must engage in critical analyses of the facts and evaluations of witness credibility when defendants endeavor to raise issues of racism, national origin discrimination, and gender bias, which may be totally unfounded and merely presented in a criminal prosecution as a means of trying to avoid criminal responsibility.

   The purpose of this article is to conduct a journey through the criminal justice system where issues of racism, national origin discrimination, gender bias and prejudice frequently surface and occur. We need to recognize when such bias and prejudice occur and to sensitize all participants responsible for administering the criminal justice system, so that we can effectively eradicate such factors and thus enhance the quality and fairness of our criminal justice system as we apply it to an increasingly diverse and multi-cultural society in the United States of America.

2. THE INITIAL POLICY CONTACT

   Our constitutional jurisprudence recognizes that there can be consensual contacts between law enforcement officers and private citizens without any encroachment upon the Fourth Amendment rights of our citizens.(5) But are these "consensual contacts" really voluntary and consensual, or do they violate the civil liberties of suspected criminal offenders? The question is complicated by the fact that the process may never surface in court--where no arrest is made and thus no criminal prosecution is initiated, a court will not hear of it unless the citizen is courageous enough to bring a civil rights civil law suit for money damages.(6)

   The case of People v. Evans(7) vividly illustrates how application of the legal concept of "consensual contact" can be abused. On December 7, 1989 at about 9:30 p.m., Sergeant Giardina and his partner approached Annette Evans, a nineteen year old African-American woman with no prior criminal record, as she was about to board a bus in New York City's Port Authority terminal. After a brief conversation, Sergeant Giardina told Evans he thought she was carrying drugs. A search of her hand luggage revealed several ounces of cocaine in a brown paper bag. After conducting a suppression hearing, the judge concluded: "[T]he picture that emerges is one of discriminatory law enforcement which does incalculable damage to our civil liberties but produces at best questionable results for the war on drugs."(8)

   Reviewing the Evans case, Justice Carol Berkman in her findings of fact noted that the police interdiction program at the Port Authority began as a result of intelligence that large amounts of drugs were routed through the terminal. Officers monitoring the terminal were ordered to observe unusual behavior. Berkman noted that Sergeant Giardina was adamant that the program did not use drug courier "profiles" and that he denied any knowledge of the federal "drug profiles." She also noted that Giardina testified that if a person were behaving "unusually," two plainclothes officers would approach and engage that person in conversation. She quoted Sergeant Giardina who stated that, "during [a] conversation you further enhance your own suspicions on whether or not they may or may not be carrying... drugs."(9) Sergeant Giardina stated that the next step was to ask whether the person would mind having his or her bag searched. Justice Berkman observed that, contrary to the practice of the Amtrak police, the officers did not explicitly explain to the individual the right to refuse inspection. With reference to the phrase, "behaving unusually," she observed: "The Sergeant appeared to be an experienced witness, but unable to articulate, when pressed, the factual bases for his conclusions. He became nervous, somewhat truculent, and inconsistent, when required to detail his asserted observations of unusual behavior or inconsistent responses from the defendant. For these reasons, he was not credible."(10)

   Justice Berkman, in her conclusions of law, observed:

   The operations of the Port Authority drug interdiction program, as presented at this hearing, bear every hallmark of being the pedestrian/bus traveler equivalent of a roving roadblock, without any proof that the program operates "in a uniform nonarbitrary and nondiscriminatory manner" or that it is "carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers."(11)

   She continued: "Moreover, no records are required to be kept of stops, so that the Port Authority Police Department (and the courts) will never know with any certainty how many people are stopped, or by whom, or under what circumstances."(12) She then echoed the sentiment of many sensitive and thoughtful judges: "While the problem of the trade in illicit drugs is an extraordinarily serious one, no crime is so serious under our nation's constitutional system as to justify giving the police virtually unfettered discretion in executing searches."(13)

   Justice Berkman's incisive observation is of great interest. She writes: "The issue would be easier if the same standard applied to pedestrians as to automobiles. But while stopping a moving vehicle is unquestionably a 'seizure,' stopping a moving pedestrian, even one who is clearly on his way somewhere, does not receive the same constitutional deference."(14) Thus, it appears that people in automobiles under the United States Supreme Court's interpretation of the Fourth Amendment have far greater protection than pedestrians walking on our sidewalks, in our bus and railroad stations, and through our airport concourses. We need merely to look at United States v. Mendenhall.(15) Justice Berkman in Evans cogently observed, "the question of whether police-citizen encounters such as the one in this case are seizures has confounded the Supreme Court,"(16) and thus she suggested a comparison of Reid v. Georgia(17) with Florida v. Royer(18) and United States v. Mendenhall.(19) She then concluded:

   Although the Justices were unable to reach anything but plurality "agreement" in Mendenhall and Royer, and although Reid appears inconsistent with...