ARGUMENT
I. CONTEMPORARY EVIDENCE REVEALS THAT RACIAL BIAS CONTINUES TO INFLUENCE THE EXERCISE OF DISCRETIONARY ACTS IN THE ADMINISTRATION OF CRIMINAL JUSTICE
A. Comprehensive studies initiated by state and federal courts show that racial bias continues to influence decision-making in the criminal justice system
During the past decade, numerous state and federal courts established task forces and charged them with appraising the treatment of racial and ethnic minorities in the courts, ascertaining public perceptions of the fairness of the judicial system, and making recommendations on reforms and identifying the response necessary to eliminate the perception and reality of race-based partiality. The unpleasant and consistent conclusion each has reached is that “inequality, disparate treatment, and injustice remain hallmarks” of the criminal justice system. We report important findings that are relevant to the question presented.
1. Race continues to influence discretionary decisionmaking within the criminal justice system
After exhaustive research and analysis of copious data the court appointed task forces throughout the country confirmed the continued influence of racial bias at all stages of the criminal justice process. Distressingly, racial bias, both overt and unconscious, continues to cause an alarming number of law enforcement actors -- police, prosecutors, and judges -- to treat minorities differently and more harshly than similarly situated whites. Race continues to exercise influence wherever discretion is exercised, whether it be at the arrest, charging, bail, jury selection, or sentencing stage. One report summarized:
In short, the reality is that African-American[s] ... are being treated differently at several stages of the ... justice system. When the object is punishment -- detention, formal adjudication, or commitment -- minorities get more; when what is being handed out is informal processing or diversion, minorit[ies] get less. This differential treatment results, at least in part, from racial and ethnic bias on the part of enough individual police officers, ... prosecutors, and judges to make the system operate as if it intended to discriminate against non-whites.
The cumulative effect of this differential treatment of non-whites at each level of discretionary decisionmaking has repeatedly been determined to be substantial. See e.g., Iowa, at 187 (“the combined effect [of racial bias] during processing in the court system is not slight”); Florida I, at 73; Washington, at 4-5.
2. Racism, both overt and unconscious, affects discretionary charging and sentencing decisions
In particular, state and federal task forces consistently identified that differences in prosecutorial charging decisions could only be accounted for by race. For example, Michigan's task force found that racial and ethnic minorities in the Detroit metropolitan area are routinely charged with felonies for certain conduct that, when engaged in by white offenders, results in misdemeanor charges. Michigan, at 51. Similarly, the Massachusetts Commission reported that available data disclosed a “disturbing pattern”: young black males were more likely to receive terms of incarceration than similarly situated white counterparts. Massachusetts Supreme Judicial Court Commission to Study Racial and Ethnic Bias in the Courts, Final Report, Sept. 1994, at 95 [[hereinafter Massachusetts].
In New York, Blacks and Hispanics were found to be treated more harshly than whites especially in majority-white counties. For example, in suburban, majority-white Westchester County, minority felony defendants with prior criminal records had a 52% chance of being incarcerated while similarly situated white felony defendants had only a 39% chance of being incarcerated. New York, at 41, citing New York State Division of Criminal Justice Services study. See also Washington, at 54 (“Longer periods of confinement were recommended for Black offenders than for White offenders, even after we took into account legally relevant factors”).
This disparate treatment has been acknowledged by prosecutors and judges as well. For example, a federal judge testified to the influence of unconscious racism on discretionary charging and sentencing decisions in the following terms:I'm not suggesting deliberate discrimination by the U.S. Attorney, but I have seen throughout my years as a judge a different view brought to cases where a prosecutor may feel there is not something worth saving .... I think there is perhaps a natural tendency to think with the white male, “Here's a young person with no prior problems with the law. We don't want to destroy his future.” There may not be the same feeling for the black male, just a sense that he is not going to go far anyway. I don't think this is deliberate discrimination, but it results in more of a tendency to find a way out for the white male than the black male.
To similar effect were the observations of a state judge:
[A]gain, it's this institutional-it's the subtle, it's the unconscious kind of racism. There was an incident that happened in Palm Springs following a sentencing seminar sponsored [by] either CJA or CJER. And judges were in the pool relaxing afterwards, and there was a conversation going on about sentencing and talking about what we had discussed earlier. And among two of the judges, they said, well, they had decided that for Blacks, the sentencing option of jail and longer jail sentences was the more appropriate sentence than for Whites or for Asians, because everybody knew there wasn't any social stigma attached to Blacks going to jail, because, first of all, they live in communities where everybody was Black, and so they didn't have any reason to be embarrassed, so if you just gave a little jail time, it would be all right.
Moreover, a District of Columbia federal prosecutor opined that disparate treatment occurred less innocently:
I think the judges are less harsh with a white defendant as opposed to a black defendant. A judge will be lenient to a white defendant and when a black man commits the same offense, they will send him away. It is appalling. They may see a white defendant and they connect.
That such bias stems from a government actor's unstated and inarticulable intuition that a defendant deserves different treatment because of his race hardly makes it less of an offense to bedrock equal protection principles.
The task forces' sincere efforts at self-scrutiny have consistently yielded this alarming conclusion: that racial bias in the administration of justice is pervasive and persistent and threatens both the appearance and reality of evenhanded justice.
B. Eliminating racial bias, both overt and unconscious, from judicial proceedings requires that courts take specific steps to identify instances in which bias may influence decision-making and to prevent it from doing so
A second consistent theme of these judicially endorsed reports is also clear: unless courts act more vigilantly, racial bias will never be eradicated from the administration of justice and public confidence will wane further. One task force stated, “[P]ublic confidence in our system of justice must become and remain a priority for each member of that system.” Michigan, at 23. See also Massachusetts, at 4.
Only by acknowledging that bias persists and by taking the necessary steps to deal with it will courts dispel the notion held by some members of the public that the courts are tolerant of race discrimination. Undertaking this challenge is essential because:
Like any relationship, the relationship between the courts and the communities around them needs attention and care to ensure that each party understands and trusts the other. By giving more attention to these relationships, the courts would not only better serve the community, they would also make their own jobs easier by enhancing the community's confidence in the administration of justice.
1. Despite the courts' current efforts to eradicate racial bias, overt and unconscious racism on the part of law enforcement actors persists
The task forces found that for minorities, overt racism on the part of law enforcement actors is a fact of life. An instance of such bias helped to bring about the creation of the Massachusetts Commission: In August 1988, during a criminal session of the Suffolk Superior Court, Assistant Attorney General Thomas H. Brewer, an African American, attempted to gain access to a part of the courtroom that he was entitled to enter. However, because of his race, two court officers mistook the Assistant Attorney General for a defendant and physically attempted to bar him from the courtroom.
Such incidents by law enforcement actors sadly are not uncommon and were reported to other commissions. Additionally, judges continue to exhibit overt racism in the courtroom. The Oregon task force was disturbed by an incident in which a Mexican-American defendant appeared before a judge on the issue of whether the defendant's diversion program should be revoked for nonpayment of diversion fees. In open court, the judge admonished the defendant as follows:
I'm not going to let him just hold out money. And I know just darn good and well where that money from [his job] went. I'll bet a good part of it went down South, and that's his business, except that he's got this obligation here. Oregon, at 1.
That such brazen, on the record comments are exceptional, however, should not blind courts to the extent that unconscious racism based upon racial stereotypes and cultural misunderstandings also permeates the administration of justice. The Georgia task force noted that “there are incidences of bias which appear to result from unintentional conduct or conduct resulting from a lack of awareness.” Georgia, at 9. See also, Oregon, at 2.
Indeed, the elusiveness of this subtle or even unconscious racism makes it in one respect more problematic than overt racism: without heightened attentiveness, it is likely to go detected in any individual case. As one report put it, “Like the presence of poison in food or certain pollutants in the air, bias in decision-making may not always be readily detectible by the unwary.” Florida I, at 5.
Ongoing, unchecked racial bias mocks the idea that justice is dispensed equally to all under the law. Not surprisingly, incidents recounted in the reports explain why too many Americans distrust the fairness of our courts. As this Court has repeatedly acknowledged, racial bias fundamentally undermines the integrity of the criminal justice system in violation of the bedrock guarantee of equal treatment embodied in the Fifth and Fourteenth Amendments. See e.g. Strauder v. West Virginia, 100 U.S. 303 (1880); Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
While existing mechanisms may be relied upon in cases where race discrimination is overt, the compelling evidence cited above require courts to develop appropriate solutions to reach those circumstances in which racism takes more subtle form. The resolution of such problems “will require an extraordinary intellect, unswerving compassion and most importantly, a level of candor that will engender respect for any decision the Court might reach.” New Jersey, at ii.
The task forces identified tools to deal with the more subtle bias that has been found to infect discretionary decisionmaking: adoption of systems for collection of relevant data necessary for monitoring discretionary decisions, the promulgation of guidelines to channel the exercise of discretion to avoid bias, and development of new remedies for addressing bias. As the Florida commission found, there is a “need for fundamental reforms to eradicate the stain of racism from the garments of justice.” Florida II, at viii.
2. Adequate information must be collected, maintained and disclosed when necessary in order to determine the existence or non-occurrence of bias-influenced decisionmaking
During the course of their investigations, the task forces discovered that a major roadblock to determining whether bias existed in the criminal justice system was the difficulty of gathering the necessary data. They were hampered by the lack of systematic institutional mechanisms for compiling bias data and were often forced to conduct their own studies, which usually required considerable financial resources. See, e.g., Iowa, at 188; Florida II, at 60. Much of the information analyzed by the court task forces came from District Attorneys' Offices.
Since prosecutors' offices already possess access to the information needed to make a comprehensive study of bias, the task forces concluded that these offices should assume the responsibility for gathering much of the information crucial to monitoring bias. Data regarding exercise of prosecutorial discretion would then be readily available.
The task forces also recommended that bias data be made routinely available to all concerned, including the public, see Iowa, at 190 (any patterns of racially associated disparities should be publicly disseminated, and specifically brought to the attention of the Districts where the disparities occurred); New York, at 43 (sentencing statistics concerning the race of the victim, defendant and complainant along with case outcome should be maintained and published by the Unified Court System in cooperation with the New York State Department of Criminal Justice Services), and that periodic studies to determine the existence or influence of racial bias be undertaken. See Massachusetts, at 24; Georgia, at 165; New Jersey, at 133.
3. Based upon the availability of such reliable information, the exercise of discretion can be monitored so as to identify and eliminate discriminatory actions in the criminal justice process
Reliable data must be disclosed when necessary to avoid the influence of bias because “[t]he need for discretion, while compelling, must be balanced against the potential for abuse. The need to ensure that the charging decision is free from racial and ethnic bias must be taken into account.” Oregon, at 35. See also Florida I, at 77. Only by having data available will it be possible to monitor effectively the influence of bias in the discharge of the official responsibilities of the police, the prosecution and the judiciary. See Massachusetts, at 24.
Traditionally, prosecutorial discretion has been regarded not only as broad but as virtually immune from external scrutiny based upon the assumption that adequate internal mechanisms are in place to deal with overt discrimination. Time and again, the task forces concluded that the traditional approach, leaving the exercise of discretion to internal monitoring only, was inadequate to prevent subtle forms of discrimination.
The task forces concluded that new monitoring mechanisms are sorely needed, and that the monitoring of discretionary decisionmaking encourages awareness of racial bias, thereby helping to eradicate it.
The task forces also concluded that traditional remedies for race discrimination are often ineffective. For example, many concluded that trial courts too often fail to police the discriminatory exercise of peremptory challenges by prosecutors. Thus, one task force recommends allowing appellate courts to review Batson issues de novo. Georgia, at 33. Similarly, the Michigan task force expressed alarm after it was unable to find even one reported Michigan decision in which a Batson claim was found meritorious. Michigan, at 49. Thus, it recommended that trial judges be encouraged to implement the Batson standard on their own initiative in any jury selection process in which peremptory challenges appear to be racially motivated. Id. See also New York, at 59 (“Judges should exercise heightened scrutiny to ensure that peremptory challenges are not used improperly”).
