82 Joseph Treaster, “Two Federal Judges, in Protest, Refuse to Accept Drug Cases,” New York Times, Apr. 17, 1993.
83 Chris Carmody, “Revolt to Sentencing is Gaining Momentum,” National Law Journal, May 17, 1993, 10.
84 Stuart Taylor Jr., “Ten Years for Two Ounces,” American Lawyer, Mar. 1990, 65-66.
85 Michael Jacobson, Downsizing Prisons: How to Reduce Crime and End Mass Incarceration (New York: New York University Press, 2005), 215.
86 See Mauer, Race to Incarcerate, 33, 36-38, citing Warren Young and Mark Brown.
87 PEW Center for the States, One in 31.
88 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2002), 32, citing Bureau of Justice Statistics.
89 Ibid., 94, citing Bureau of Justice Statistics.
90 Ibid.
91 Ibid., 32.
92 Ibid.
93 Ibid., 49, citing Bureau of Justice Statistics.
94 Loïc Wacquant, “The New ‘Peculiar Institution’: On the Prison as Surrogate Ghetto,” Theoretical Criminology 4, no. 3 (2000): 377-89.
Chapter 3: The Color of Justice
1 Frontline, The Plea, at www.pbs.org/wgbh/pages/frontline/shows/plea/four/stewart.html; and Angela Davis, Arbitrary Justice: The Power of the American Prosecutor (New York: Oxford University Press, 2007), 50-52.
2 American Civil Liberties Union, Stories of ACLU Clients Swept Up in the Hearne Drug Bust of November 2000 (Washington, DC: American Civil Liberties Union, Nov. 1, 2002), www.aclu.org/DrugPolicy/DrugPolicy.cfm?ID=11160&c=80.
3 Human Rights Watch, Punishment and Prejudice: Racial Disparities in the War on Drugs, HRW Reports, vol. 12, no. 2 (May 2000).
4 Ibid.
5 Jeremy Travis, But They All Come Back: Facing the Challenges of Prisoner Reentry (Washington, DC: Urban Institute Press, 2002), 28.
6 Ibid.
7 Ibid.
8 Marc Mauer and Ryan S. King, Schools and Prisons: Fifty Years After Brown v. Board of Education (Washington, DC: Sentencing Project, Apr. 2004), 3.
9 Marc Mauer, The Changing Racial Dynamics of the War on Drugs (Washington, DC: Sentencing Project, Apr. 2009).
10 See, e.g., U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration, Summary of Findings from the 2000 National Household Survey on Drug Abuse, NHSDA series H-13, DHHS pub. no. SMA 01-3549 (Rockville, MD: 2001), reporting that 6.4 percent of whites, 6.4 percent of blacks, and 5.3 percent of Hispanics were current illegal drug users in 2000; Results from the 2002 National Survey on Drug Use and Health: National Findings, NSDUH series H-22, DHHS pub. no. SMA 03-3836 (2003), revealing nearly identical rates of illegal drug use among whites and blacks, only a single percentage point between them; Results from the 2007 National Survey on Drug Use and Health: National Findings, NSDUH series H-34, DHHS pub. no. SMA 08-4343 (2007) showing essentially the same findings; and Marc Mauer and Ryan S. King, A 25-Year Quagmire: The War on Drugs and Its Impact on American Society (Washington, DC: Sentencing Project, Sept. 2007), 19, citing a study suggesting that African Americans have slightly higher rates of illegal drug use than whites.
11 See, e.g., Howard N. Snyder and Melissa Sickman, Juvenile Offenders and Victims: 2006 National Report, U.S. Department of Justice, Office of Justice Programs, Office of Juvenile Justice and Delinquency Prevention (Washington, DC: 2006), reporting that white youth are more likely than black youth to engage in illegal drug sales; Lloyd D. Johnson, Patrick M. O’Malley, Jerald G. Bachman, and John E. Schulenberg, Monitoring the Future, National Survey Results on Drug Use, 1975- 2006, vol. 1, Secondary School Students, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 07-6205 (Bethesda, MD: 2007), 32, stating “African American 12th graders have consistently shown lower usage rates than White 12th graders for most drugs, both licit and illicit”; and Lloyd D. Johnston, Patrick M. O’Malley, and Jerald G. Bachman, Monitoring the Future: National Results on Adolescent Drug Use: Overview of Key Findings 2002, U.S. Department of Health and Human Services, National Institute on Drug Abuse, NIH pub. no. 03-5374 (Bethesda, MD: 2003), presenting data showing that African American adolescents have slightly lower rates of illicit drug use than their white counterparts.
12 National Institute on Drug Abuse, Monitoring the Future, National Survey Results on Drug Use, 1975-1999, vol. 1, Secondary School Students (Washington, DC: National Institute on Drug Abuse, 2000).
13 U.S. Department of Health, National Household Survey on Drug Abuse, 1999 (Washington, DC: Substance Abuse and Mental Health Services Administration, Office of Applied Studies, 2000), table G, p. 71, www.samhsa.gov/statistics/statistics.html.
14 Bruce Western, Punishment and Inequality (New York: Russell Sage Foundation, 2006), 47.
15 Researchers have found that drug users are most likely to report using as a main source for drugs someone who is of their own racial or ethnic background. See, e.g., K. Jack Riley, Crack, Powder Cocaine and Heroin: Drug Purchase and Use Patterns in Six U.S. Cities (Washington, DC: National Institute of Justice, Dec. 1997), 1; see also George Rengert and James LeBeau, “The Impact of Ethnic Boundaries on the Spatial Choice of Illegal Drug Dealers,” paper presented at the annual meeting of the American Society of Criminology, Atlanta, Georgia, Nov. 13, 2007 (unpublished manuscript), finding that most illegal drug dealers sell in their own neighborhood and that a variety of factors influence whether dealers are willing to travel outside their home community.
16 See Rafik Mohamed and Erik Fritsvold, “Damn, It Feels Good to Be a Gangsta: The Social Organization of the Illicit Drug Trade Servicing a Private College Campus,” Deviant Behavior 27 (2006): 97-125.
17 See Ralph Weisheit, Domestic Marijuana: A Neglected Industry (Westport, CT: Greenwood, 1992); and Ralph Weisheit, David Falcone, and L. Edward Wells, Crime and Policing in Rural and Small-Town America (Prospect Heights, IL: Wave-land, 1996).
18 Patricia Davis and Pierre Thomas, “In Affluent Suburbs, Young Users and Sellers Abound,” Washington Post, Dec. 14, 1997.
19 Human Rights Watch, “Punishment and Prejudice: Racial Disparities in the War on Drugs,” HRW 12, no. 2 ( May 2000).
20 PEW Center on the States, One in 100: Behind Bars in America 2008 (Feb. 2008)—data analysis is based on statistics for midyear 2006 published by the U.S. Department of Justice in June 2007.
21 Ibid.; Pew Center on the States, One in 31: The Long Reach of American Corrections (Washington, DC: Pew Charitable Trusts, Mar. 2009).
22 Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan, Racial Attitudes in America: Trends and Interpretations (Cambridge, MA: Harvard University Press, 1985).
23 See, e.g., Marc Mauer, Race to Incarcerate (New York: The New Press, 1999), 28-35, 92-112.
24 Ibid.
25 Katherine Beckett and Theodore Sasson, The Politics of Injustice: Crime and Punishment in America (Thousand Oaks, CA: Sage Publications, 2004), 22.
26 Cities with similar demographic profiles often have vastly different drug arrest and conviction rates—not because of disparities in drug crime but rather because of differences in the amount of resources dedicated to drug law enforcement. Ryan S. King, Disparity by Geography: The War on Drugs in America’s Cities (Washington, DC: Sentencing Project, Mar. 2008).
27 Substance Abuse and Mental Health Services Administration, Results from the 2002 National Survey on Drug Use and Health: Detailed Tables, Prevalence Estimates, Standard Errors and Sample Sizes (Washington, DC: Office of National Drug Control Policy, 2003), table 34.
28 Jimmie Reeves and Richard Campbell, Cracked Coverage: Television News, the Anti-Cocaine Crusade and the Reagan Legacy (Durham, NC: Duke University Press, 1994).
29 David Jernigan and Lori Dorfman, “Visualizing America’s Drug Problems: An Ethnographic Content Analysis of Illegal Drug Stories on the Nightly News,” Contemporary Drug Problems 23 (1996): 169, 188.
30 Rick Szykowny, “No
Justice, No Peace: An Interview with Jerome Miller,” Humanist, Jan.-Feb. 1994, 9-19.
31 Melissa Hickman Barlow, “Race and the Problem of Crime in Time and Newsweek Cover Stories, 1946 to 1995,” Social Justice 25 (1989): 149-83.
32 Betty Watson Burston, Dionne Jones, and Pat Robertson-Saunders, “Drug Use and African Americans: Myth Versus Reality,” Journal of Alcohol and Drug Abuse 40 (Winter 1995): 19.
33 Franklin D. Gilliam and Shanto Iyengar, “Prime Suspects: The Influence of Local Television News on the Viewing Public,” American Journal of Political Science 44 (2000): 560-73.
34 See, e.g., Nilanjana Dasgupta, “Implicit Ingroup Favoritism, Outgroup Favoritism, and Their Behavioral Manifestations,” Social Justice Research 17 (2004): 143. For a review of the social science literature on this point and its relevance to critical race theory and antidiscrimination law, see Jerry Kang, “Trojan Horses of Race,” Harvard Law Review 118 (2005): 1489.
35 There is some dispute whether Nietzsche actually said this. He did use the term “immaculate perception” in Thus Spoke Zarathustra to disparage traditional views of knowledge, but apparently did not say the precise quote attributed to him. See Friedrich Nietzsche, Thus Spoke Zarathustra, reprinted in The Portable Nietzsche, ed. & trans. Walter Kaufmann (New York: Viking Penguin, 1954), 100, 233-36.
36 See, e.g., John F. Dovidio, et al., “On the Nature of Prejudice: Automatic and Controlled Processes,” Journal of Experimental Social Psychology 33 (1997): 510, 516-17, 534.
37 Joshua Correll, et al., “The Police Officer’s Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, Journal of Personality and Social Psychology 83 (2001): 1314; see also Keith Payne, “Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon,” Journal of Personality and Social Psychology 81 (2001): 181.
38 See, e.g., Dovidio, et al., “On the Nature of Prejudice”; and Dasgupta, “Implicit Ingroup Favoritism.”
39 Ibid.; see also Brian Nosek, Mahzarin Banaji, and Anthony Greenwald, “Harvesting Implicit Group Attitudes and Beliefs from a Demonstration Web Site,” Group Dynamics 6 (2002): 101.
40 Correll, “Police Officer’s Dilemma.”
41 Nosek, et al., “Harvesting Implicit Group Attitudes.”
42 Ibid.
43 John A. Bargh, et al., “Automaticity of Social Behavior: Direct Effects of Trait Construct and Stereotype Activation on Action,” Journal of Personality and Social Psychology 71 (1996): 230; Gilliam and Iyengar, “Prime Suspects”; Jennifer L. Eberhardt et al., “Looking Deathworthy,” Psychological Science 17, no. 5 (2006): 383-86 (“[J]urors are influenced not simply by the knowledge that the defendant is Black, but also by the extent to which the defendant appears to be stereotypically Black. In fact for the Blacks with [the most stereotypical faces], the chance of receiving a death sentence more than doubled”); Jennifer L. Eberhardt et al., “Seeing Black: Race, Crime, and Visual Processing,” Journal of Personality and Social Pscychology 87, no. 6 (2004): 876-93 (not only were black faces considered more criminal by law enforcement, but the more stereotypical black faces were considered to be the most criminal of all); and Irene V. Blair, “The Influence of Afrocentric Facial Features in Criminal Sentencing,” Psychological Science 15, no. 10 (2004): 674-79 (finding that inmates with more Afrocentric features received harsher sentences than individuals with less Afrocentric features).
44 See Kathryn Russell, The Color of Crime (New York: New York University Press, 1988), coining the term criminalblackman.
45 The notion that the Supreme Court must apply a higher standard of review and show special concern for the treatment of “discrete and insular minorities”—who may not fare well through the majoritarian political process—was first recognized by the Court in the famous footnote 4 of United States v. Caroline Products Co., 301 U.S. 144, n. 4 (1938).
46 Whren v. United States, 517 U.S. 806 (1996).
47 McCleskey v. Kemp, 481 U.S. 279, 327 (1989), Brennan, J., dissenting.
48 Ibid., 321.
49 Ibid., 296. Ironically, the Court expressed concern that these rules would make it difficult for prosecutors to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules.
50 Ibid., 314-16.
51 Ibid., 339.
52 United States v. Clary, 846 F.Supp. 768, 796-97 (E.D.Mo. 1994).
53 Doris Marie Provine, Unequal Under Law: Race in the War on Drugs (University of Chicago Press, 2007), 26.
54 Davis, Arbitrary Justice, 5.
55 Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).
56 See, e.g., Sandra Graham and Brian Lowery, “Priming Unconscious Racial Stereotypes About Adolescent Offenders,” Law and Human Behavior 28, no. 5 (2004): 483-504.
57 Christopher Schmitt, “Plea Bargaining Favors Whites, as Blacks, Hispanics Pay Price,” San Jose Mercury News, Dec. 8, 1991.
58 See, e.g., Carl E. Pope and William Feyerherm, “Minority Status and Juvenile Justice Processing: An Assessment of the Research Literature,” Criminal Justice Abstracts 22 (1990): 527-42; Carl E. Pope, Rick Lovell, and Heidi M. Hsia, U.S. Department of Justice, Disproportionate Minority Confinement: A Review of the Research Literature from 1989 Through 2001 (Washington DC: U.S. Department of Justice, 2002); Eleanor Hinton Hoytt, Vincent Schiraldi, Brenda V. Smith, and Jason Ziedenberg, Reducing Racial Disparities in Juvenile Detention (Baltimore: Annie E. Casey Foundation, 2002), 20-21.
59 Eileen Poe-Yamagata and Michael A. Jones, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2000).
60 National Council on Crime and Delinquency, And Justice for Some: Differential Treatment of Minority Youth in the Justice System (Washington, DC: Building Blocks for Youth, 2007).
61 See George Bridges and Sara Steen, “Racial Disparities in Official Assessments of Juvenile Offenders: Attributional Stereotypes as Mediating Mechanisms,” American Sociological Review 63, no. 4 (1998): 554-70.
62 Swain v. Alabama, 380 U.S. 202 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986).
63 Strauder v. West Virginia, 100 U.S. 303, 308 (1880).
64 Ibid., 309.
65 Benno C. Schmidt Jr., “Juries, Jurisdiction, and Race Discrimination: The Lost Promise of Strauder v. West Virginia,” Texas Law Review 61 (1983): 1401.
66 See, e.g., Smith v. Mississippi, 162 U.S. 592 (1896); Gibson v. Mississippi, 162 U.S. 565 (1896); and Brownfield v. South Carolina, 189 U.S. 426 (1903).
67 Neal v. Delaware, 103 U.S. 370, 397 (1880).
68 Ibid., 402-3 (quoting Delaware Supreme Court).
69 Miller-El v. Cockrell, 537 U.S. 322, 333-34 (2003).
70 Ibid., 334-35.
71 Brian Kalt, “The Exclusion of Felons from Jury Service,” American University Law Review 53 (2003): 65, 67.
72 Michael J. Raphael and Edward J. Ungvarsky, “Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky,” University of Michigan Journal of Law Reform 27 (1993): 229, 236.
73 Sheri Lynn Johnson, “The Language and Culture (Not to Say Race) of Peremptory Challenges,” William and Mary Law Review 35 (1993): 21, 59.
74 Purkett v. Elm, 514 U.S. 765, 771 n. 4 (1995), Stevens, J., dissenting and quoting prosecutor.
75 Ibid., 767.
76 Ibid., 768.
77 Ibid.
78 See Lynn Lu, “Prosecutorial Discretion and Racial Disparities in Sentencing: Some Views of Former U.S. Attorneys,” Federal Sentencing Reporter 19 (Feb. 2007), 192.
79 Douglas S. Massey and Nancy A. Denton, American Apartheid: Segregation and the Making of the Underclass (Cambridge, MA: Harvard University Press, 1993), 2.
80 For a discussion of possible replacement effects, see Robert MacCoun and Peter Reuter, Drug War Heresies: Learning from Other Vices, Times, and Places (New York: Cambridge University Press, 2001).
81
See Katherine Beckett, Kris Nyrop, Lori Pfingst, and Melissa Bowen, “Drug Use, Drug Possession Arrests, and the Question of Race: Lessons from Seattle,” Social Problems 52, no. 3 (2005): 419-41; and Katherine Beckett, Kris Nyrop, and Lori Pfingst, “Race, Drugs and Policing: Understanding Disparities in Drug Delivery Arrests,” Criminology 44, no. 1 (2006): 105.
82 Beckett, “Drug Use,” 436.
83 Ibid.
84 Ibid.
85 David Cole, No Equal Justice: Race and Class in the American Criminal Justice System (New York: The New Press, 1999), 161.
86 Ibid., 162.
87 City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983).
88 Quern v. Jordan, 440 U.S. 332 (1979); and Will v. Mich. Dept. of State Police, 491 U.S. 58 (1989).
89 Monell v. Dept. of Social Services, 436 U.S. 658 (1978).
90 See United States v. Brignoni-Ponce, 422 U.S. 873 (1975); and United States v. Martinez-Fuerte, 428 U.S. 543 (1976).
91 See Massey, American Apartheid.
92 For a thoughtful overview of these studies, see David Harris, Profiles in Injustice: Why Racial Profiling Cannot Work (New York: The New Press, 2002).
93 State v. Soto, 324 N.J.Super. 66, 69-77, 83-85, 734 A.2d 350, 352-56, 360 (N.J. Super. Ct. Law Div. 1996).
94 Harris, Profiles in Injustice, 80.
95 Ibid.
96 Jeff Brazil and Steve Berry, “Color of Drivers Is Key to Stops on I-95 Videos,” Orlando Sentinel, Aug. 23, 1992; and David Harris, “Driving While Black and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops,” Journal of Criminal Law and Criminology 87 (1997): 544, 561-62.
97 ACLU, Driving While Black: Racial Profiling on our Nation’s Highways (New York: American Civil Liberties Union, 1999) 3, 27-28.
98 See www.aclunc.org, press release, “Oakland Police Department Announces Results of Racial Profiling Data Collection,” May 11, 2001.
99 Al Baker and Emily Vasquez, “Number of People Stopped by Police Soars in New York,” New York Times, Feb. 3, 2007.
100 Office of the Attorney General of New York State, Report on the New York City Police Department’s “Stop & Frisk” Practices (New York: Office of the Attorney General of New York State, 1999), 95, 111, 121, 126.
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