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2nd Year Law Student
The University of Dayton School of Law
Fall 1998
| Introduction
Coming from an urban inner-city environment where most displays of the judicial system (mainly the criminal justice system) at work appeared to be conducted unfairly upon the suspect, once given the opportunity to do so (and receive course credit), I could not help but to research whether my conclusions drawn from my visual childhood experiences about "the system" had any merit, or were, in any way, accurate. I initially thought that African-Americans got the short end of the stick no matter how they came in contact with "the system." Whether it [their interaction with "the system"] ended up in serving one year of probation, one year in prison, one year on parole, or continuing through life with a record, nothing appeared, to me, to be fair because I only saw African-Americans negatively being affected. Little did I know that I would not only find that my suspicions were accurate, but due to reasons that were beyond the scope of any I had previously articulated. This annotation primarily focuses on the treatment of punitive statutes that, once implemented, have a disparate impact on minorities - African-Americans, specifically. The annotations attempt to display a sense of the attitudes of legislators who create such legislation; the attitudes of courts who interpret such legislation; and the outcome of cases of parties who try to challenge such legislation. The majority of the annotations focus on the death penalty and drug sentencing; some are sources of information to aid in clarifying how I attained my preliminary conclusion (these sources are without a critical comment). I was disheartened to see the insignificant, if any, role that statistics play, across the board, in the judicial system. This was so, due to the many other aspects, and institutions, of society that statistics serve as proof of success or failure in the implementation of various ideas/projects. I found no reasonable explanation as to why statistics become so unimportant and unreliable in revealing racial inequities in judicial administration. Although there is seemingly infinite information available on this topic, my preliminary conclusion is that the judicial system, like several other aspects and institutions of society, is reluctant to address its own racial problems. Unfortunately, this system has a history of precedential case law that allows such an attitude to remain manifested in the system itself. I do not have a perfect alternative to the statutes that have a disparate impact on minorities. However, I do advocate that the racial disparities that result from the implementation of these statutes should be enough to subject such legislation to scrutiny; these disparities should no longer be brushed off as insignificant outcomes. |
| The following articles are
included in this bibliography:
Constitution |
| Fifth Amendment to the
United States Constitution - Due Process Clause
Eighth Amendment to the United States Constitution Fourteenth Amendment to the United States Constitution - Equal Protection Clause Statutes Federal Regulations 28 C.F.R. § 91.1 - 91.4 (1998) Legislative History Senate Proceedings and Debates of the 104th Congress, First Session: Thurs., November 2, 1995 Federal Supreme Court Cases Federal District Court Cases Publications and Law Review Articles "Developments in the Law: Race and the Criminal Process." "Individual and Contextual Influences on Sentence Lengths: Examining Political Conservatism." "McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court." Websites Federal Bureau of Justice Statistics: www.ojp.osdoj.gov/bjs/welcome.html |
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Annotations Fifth Amendment to the United
States Constitution - Due Process Clause (regarding equal
protection): Provides that, "No person shall be...deprived
of life, liberty, or property, without due process of
law..." Eighth Amendment to the United States Constitution: Provides that, "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." Fourteenth Amendment to the United States Constitution - Equal Protection Clause: Provides that, "[No State shall] deny to any person within its jurisdiction the equal protection of the laws." 18 U.S.C. § 3553(b): Provides that a sentencing court may depart from the Sentencing Commission's guidelines under certain circumstances.1 Further provides that in determining whether a particular circumstance was adequately taken into consideration, "the [sentencing] court shall consider only the sentencing guidelines, policy statements, and official commentary of the Sentencing Commission." (1 page, no bibliography) Given the factors this statute provides should be taken into
consideration when determining if it is proper to depart from the
Commission's sentencing guidelines, the holding of the court in United
States v. Maxwell,2
appears inconsistent with this provision. The Maxwell
court stated that the district court's ruling was improper
because the racially disparate impact of a particular law
"is not a matter for the courts."3
However, the provision does not require that the circumstance
relied upon by the sentencing court for departure be one that is
also a matter for the courts to handle. The provision simply
requires that the sentencing court find that the Commission did
not adequately consider the circumstance; the district court made
such a finding. 18 U.S.C. § 3559(c)(1): Provides that any person convicted of 3 or more specified "serious violent felon[ies]"4 be sentenced to mandatory life imprisonment. (3 pages, no bibliography) Although this statute may appear to be neutral on its face, I cannot help but to think that it is not what it appears to be. Statistics show that a disproportionate number of convicts are African-Americans. Therefore, it can be inferred, simply by the words on the face of the statute, that this provision will also disproportionately affect African-Americans. With this simple implication, does the statute really appear neutral? I answered, "No."
21 U.S.C. § 841: Provides the penalties for individuals who knowingly or intentionally deal in controlled substances. This act is the codification of the 100:1 ratio between the punishments provided for crack versus powder cocaine. (4 pages, no bibliography)
Federal Regulations: 28 C.F.R. § 91.1 - 91.4 (1998): Provides for federal incentive grants to states to develop, expand, and/or operate correctional facilities to: (1) ensure that prison space is available to confine violent offenders and (2) to implement "truth in sentencing" laws for sentencing violent offenders. (3 pages, no bibliography.) Statistics indicate that the majority of persons in, and
going, to prisons are black. The question that I asked myself is,
"Are these incentive grants actually a way to ensure keeping
blacks in prison once they arrive?" Several studies, and
living life everyday, indicate that many blacks resort to crime
in order to get things in life that they want - and sometimes
need. They, in many cases, cannot get these things otherwise
because they are from an environment (that entails public schools
that do cannot adequately teach necessary skills due to lack of
funding and/or low-income households) that does not allow them to
go to college in order to gain the skills that are necessary in
order to make an adequate amount of money. Instead of providing
incentive grants to build and maintain prisons, this money could,
and should, be used to provide the essential education that is
necessary in order to prevent individuals from resorting to
crime; thereby making life beyond inner-city ghettoes and
criminal activity accessible to blacks. U.S.S.G. § 5K2.0 (1997): Provides that under 18 U.S.C. § 3553(b), the sentencing court may impose a sentence outside the range established by the applicable guideline, if the court finds "that there exists an aggravating or mitigating circumstance of a kind, or to a degree, not adequately taken into account by the Sentencing Commission in formulating the guidelines that should result in a sentence different from that described." States that, "Circumstances that may warrant departure from the guidelines pursuant to this provision [5K2.0] cannot, by their very nature, be comprehensively listed and analyzed in advance." (2 pages, no bibliography.) The fact that blacks are disproportionately being affected by
the 100:1 ratio of crack to powder cocaine in the sentencing
guidelines is a circumstance that more courts should find
"should result in a sentence different than that
described" by the guidelines. The fact that courts do not
impose less harsh sentences reveals that they do not see a
problem with what is happening as a result of the guidelines. The
rationale that the Commission and Congress had a rational basis
for distinguishing between the two types of cocaine is just an
excuse to justify the government's actions and to ensure that
more blacks end up behind bars. Anyone who does not see a problem
with the fact that one can have 1500kg of one form of cocaine and
receive the same punishment as one who has 15kg of another form
of the same drug is consciously overlooking the reality of the
situation. The fact that most judges are not departing from the
guidelines for this reason reveals they are not concerned with
the circumstances that result through implementing the
sentences. Fed. Sent. Guide. 2D1.1 (1992): Provides a "Drug Quantity Table" to establish the "base offense level" of persons caught possessing certain types/forms of illegal drugs. The amount of "cocaine" (powder) and "cocaine base" (crack cocaine) required to establish the same base offense level has a 100:1 ratio (i.e. "Level 42": "1500kg or more of Cocaine; ... 15kg or more of Cocaine Base".) (17 pages, no bibliography) The only rationale that I see for distinguishing between the
two forms of cocaine is the fact that common knowledge reveals
that more blacks deal in crack cocaine versus powder cocaine due
to the price difference between the drugs. I believe that the
distinction in the amount of cocaine is primarily due to the fact
that common knowledge also reveals that wealthy whites deal in,
and use, powder cocaine versus crack cocaine. Therefore, one must
be found with more of that drug (versus crack cocaine) before
he/she will be prosecuted. Illegal drugs are just that - illegal,
especially when they are of the same type. Legislative History: Congressional Record - House of Representatives Proceedings and Debates of the 104th Congress, First Session: Wed., October 18, 1995. 141 Cong. Rec. H10211-04. Mr. Flake5 states, "Statistics are nonpartisan. Percentages are unbiased...One hundred to one is an immense disparity. Worse 100 to 1 is an unjustified disparity...Is powder cocaine one-hundredth less deadly than crack? Does powder cocaine cause one-hundredth the violence that crack does? Or perhaps, have the misperceptions surrounding the communities in which one finds theses drugs, affected the fairness of our laws?" (1 page, no bibliography) Mr. Flake sums up the reality of the situation surrounding the
Congressional provisions and the sentencing guidelines in his
last question quoted in the preceding paragraph. Upon reading the
entire record of the debate over the sentencing guidelines, the
reasons articulated by Congressmen/women in support of keeping
the current guidelines seem to be based as much on misperceptions
and frustration as they are facts - if not moreso. Congressional Record - House of Representatives Proceedings and Debates of the 104th Congress, First Session: Wed., October 18, 1995. 141 Cong. Rec. H10255-02. Disapproves and rejects the amendments offered to Congress by the Sentencing Commission on May 1, 1995 regarding the sentencing disparities in punishments for powder and crack cocaine. (92 pages, no bibliography) I found it interesting that, through the entire debate, it was
only mentioned by one person that the sentence for powder cocaine
be increased versus the sentenced for crack cocaine be decreased.
With this option, all of the reasons for keeping the current
crack cocaine sentence would be satisfied, and the 100:1 ration
would be eliminated. However, once this idea was mentioned, it
was given no further consideration. This draws on the suspicion
that there are some other reasons for the differences in the
sentence lengths that are not being articulated. Congressional Record - Senate Proceedings and Debates of the 104th Congress, First Session: Thurs., November 2, 1995. 141 Cong. Rec. S16560-01. Mr. Hatch articulates his reasons why the Senate voted to block reductions in crack sentences: [1] "Crack use is associated with the explosion in the most horrifying cases of child abuse in recent years"6, and [2] "Crack dealers are notorious for their remorseless killings."7 Mr. Hatch went on to state, "We have a situation where, unfortunately, opponents of the sentencing regime are dismissing the facts. That is regrettable, especially since the victims of the crack trade are so overwhelmingly concentrated among the minority residents of our inner cities."8 (6 pages, no bibliography) Mr. Hatch's reasons, articulated on behalf of the Senate, do
not justify the 100:1 ratio in the guidelines. Alcohol is another
drug that is associated with the most horrifying cases of child
abuse - however, alcohol is not even illegal. Alcoholics are
notorious for their numerous negligent killings - however, those
who sell liquor are not in any way punished and the sentence for
DUI (driving under the influence of alcohol/drugs) is not as
harsh as for crack dealers. The point is that the reasons
articulated by Mr. Hatch appear to be superficial excuses for
maintaining the 100:1 ratio. The failure of these types of drugs
(drugs that have the same/similar drastic effects as crack
cocaine), including powder cocaine, to lead to the same /similar
sentence that one gets for crack, too, makes the ratio appear
suspicious. Federal Supreme Court Cases: Batson v. Kentucky, 476 U.S. 79 (1986). Batson, a black man, challenged his conviction on the basis that the prosecutor used his peremptory challenges in a manner that violated the U.S. Constitution. The Court found in favor of Batson. In Its opinion, the Court explains what is necessary to establish a prima facie case of purposeful discrimination in "selection of the petit jury."9 In this explanation, the Court articulates that "the defendant is entitled to rely on the fact...that peremptory challenges constitute a...practice that permits those to discriminate who are of a mind to discriminate."10 (34 pages, no bibliography) When one looks at the way this case was handled versus the way
subsequent cases involving discrimination in the administration
of justice were handled, especially the more recent cases, in Batson
the Court appears to have a more liberal approach than It does in
more recent cases. In more recent cases (involving discrimination
in the administration of justice, in general), the Court seems to
lose sight of the fact that, like peremptory challenges, any
practice that allows one to use his/her own discretion permits
those to discriminate who are of mind to do so. Therefore, racial
disparities that result through the implementation of laws and
practices that require the use of discretion should not, as they
currently are, be dismissed as superficial. Gregg v. Georgia, 428 U.S. 153 (1976). Gregg, Defendant, convicted of armed robbery and murder was sentenced, under Georgia's "reformed" post-Furman11 capital sentencing statutory system, to death; he appealed. Contending that the post-Furman changes in the Georgia sentencing procedures were pretentious, Gregg asserted that the arbitrariness condemned in Furman continue to exist in Georgia in both traditional practices and in the new post-Furman sentencing procedures. The Court first held that "the punishment of death does not invariably violate the Constitution.12 The Court went on to find that while some discretion still exists in the Georgia sentencing procedures, "the discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application."13 Accordingly, It held Georgia's new statutory sentencing system did not violate the Constitution. (42 pages, no bibliography) The Court explicitly states that Its decision is not intended
to suggest that "any system constructed along these lines
[those similar to Georgia's post-Furman capital sentencing
procedures] would inevitably satisfy the concerns of Furman."14
The question then becomes, "How can this statement
practically be held by the Court without It appearing
hypocritical?" Furman v. Georgia, 408 U.S. 238 (1972). Defendants, sentenced to death for two different crimes, challenged their sentences on the grounds that the carrying out of the death penalty, in their cases, constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the U.S. Constitution. The Court found in favor of the defendants; however, the majority filed separate opinions in support of the judgement. In his concurring opinion, Justice Douglas stated that, "Any law which is nondiscriminatory on its face may be applied in such a way as to violate the Equal Protection Clause of the Fourteenth Amendment. Such conceivably might be the fate of a mandatory death penalty, where equal or lesser sentences [are] imposed on the elite [and] a harsher one on the minorities or members of the lower castes. Whether a mandatory death penalty would otherwise be constitutional is a question I do not reach."15 (117 pages, no bibliography) While the judgement in this case technically rendered all
death sentences, prior to it, unconstitutional, it did not
establish that any and every form of a mandatory death sentence
would be unconstitutional. Consequently, the Court gave many
states and incentive to simply "reform" their death
penalty statutes; and many almost immediately did so.
Unfortunately, the implementation of these new statutes created
the same problems as pre-Furman statutes. However, in
cases subsequent to Furman, the Court has been reluctant
to recognize this fact. McCleskey v. Kemp, 481 U.S. 279 (1987). McCleskey was sentenced to death for convictions of murder and 2 counts of armed robbery; he challenged his sentence on the basis that the state of Georgia's death sentencing process was unconstitutional. To support his claim McCleskey proffered the results of a statistical study, the "Baldus study" (which displayed disparity in the imposition of the death sentence in Georgia based on the race of the murder victim and, to a lesser extent, the race of the defendant), as proof of intent to discriminate.16 The Court held that: (1) the Baldus study failed to establish that any of the decision makers in McCleskey's case acted with a discriminatory purpose in violation of the equal protection clause; and (2) the Baldus study, at most, indicated a discrepancy that appeared to correlate with race - not a constitutionally significant risk of racial bias affecting the Georgia capital-sentencing process in violation of the Eighth Amendment. (52 pages, no bibliography) The Court states, "...a capital punishment system that
[does] not allow for discretionary acts of leniency is totally
alien to our notions of criminal justice". However, the
Court fails to recognize that a capital punishment system that
abuses such "leniency" has the same effect. The fact
that where, exactly, the discrimination takes place cannot be
identified, should not be enough to excuse the occurrence(s).
Instead of simply dismissing McCleskey's claim, and others like
it, an explanation of these disparities should have been
required; and if inadequate or unavailable, then the statistics
should represent evidence of abuse. United States v. Armstrong, 517 U.S. 456 (1996). Armstrong and co-defendants were convicted for selling crack and using a firearm in connection with drug trafficking and moved for discovery on a claim of selective prosecution. The U.S. district court granted the motion. The government appealed. The appeals court reversed. Rehearing en banc was granted and the appeals court affirmed the district court's decision. The case then went to the Supreme Court where it was reversed and remanded. The Court held that the district court judge abused her discretion in ordering the discovery because the "study" the defendants submitted listing 24 defendants by their race, whether they were prosecuted for dealing cocaine and/or crack, and the status of each case "did not constitute some evidence tending to show the existence of the essential elements of a selective-prosecution claim" because "the study failed to identify individuals who were not black, could have been prosecuted for the same offenses as [defendants] were charged, but were not." (17 pages, no bibliography.) It is no secret that courts can find almost any inconsistency
in the facts of two, or more, cases and allow that distinction to
serve as a rationale for treating the cases differently. How
likely is it that defendants will be able to meet all of the
necessary elements stated by the court? There will always be such
distinctions as differences in the criminal records of the
defendants; distinctions that probably have nothing to do with
the issue at hand, but are enough to rationalize the alleged
discriminatory behavior. Washington v. Davis, 426 U.S. 229 (1976). Case where the Court clearly establishes that "...a law or other official act, without regard to whether it reflects a discriminatory purpose, is [not] unconstitutional solely because it has a racially disproportionate impact."17 The Court also explains what to consider when seeking to discover whether an act was motivated by a discriminatory purpose: "the totality of the relevant facts, including the fact...that the law bears more heavily on one race than another."18 (22 pages, no bibliography) Some of the subsequent cases, where courts have relied on Washington
to aid it in dismissing the constitutional claims of persons
against laws of this country, fail to even consider whether there
was a discriminatory purpose behind the laws. Even the cases
involving the 100:1 ratio sentencing guidelines cited in these
annotations fail to consider the totality of the relevant facts
(i.e. the common knowledge that blacks deal in crack cocaine in
larger numbers than whites, and whites deal in powder cocaine in
larger numbers than blacks). When these types of facts are also
considered,19
the racially disproportionate impact is no longer standing alone.
The racial disparities should then be subjected to strict
scrutiny. Federal Circuit Court Cases: United States v. Farmer, 73 F.3d 836 (8th Cir. 1996). Known to be the first case prosecuted under 18 U.S.C. § 3559(c)(1), Farmer challenged his life sentence on several grounds - including that § 3559(c)(1) violated the Fifth and Eighth Amendments of the Constitution. Farmer argued that the law has a disparate impact on African-Americans because a greater portion of them, versus other Americans, are sentenced under its provisions. The court held that "Farmer's attack on equal protection grounds...must fail for want of proof."20 The court determined that it would have to be shown that "Congress selected or reaffirmed a particular course of action at least in part because of not merely in spite of its adverse effects upon an identifiable group,"21 for the law to be rendered unconstitutional. (11 pages, no bibliography) The question is how are defendants, or whomever, expected to
attain this type of proof. Will the Congressmen/women ensure that
their discriminatory intent is noted in the Acts' legislative
history is case anyone may need it for proof? Of course not! This
extremely high standard of proof will be, and is, the reason why
subtle acts of racism will continue to manifest themselves in
many, if not all, aspects of the judicial system. United States v. Hanna, 153 F.3d 1286 (11th Cir. 1998). Black male convicted of one count of conspiring to possess with intent to distribute crack cocaine and sentenced to 330 months in prison under U.S. Sentencing Guideline § 2D1.1(c)(1) filed an appeal challenging the constitutionality of his sentence. Court held that sentencing guidelines imposing harsher sentences for crack cocaine offenses than for powder cocaine offenses were not unconstitutional even though the consequences of the guidelines fall disproportionately upon black offenders. (4 pages, no bibliography.)
United States v. Herron, 97 F.3d 234 (8th Cir. 1996). Six defendants challenged their sentences under 21 U.S.C. § 841(b)(1)(A)(ii)(II), (iii) (statute imposing a 100:1 ratio in severity of sentences for offenses involving crack cocaine versus powder cocaine), arguing that the court should have applied the rule of lenity to impose the lesser penalty for cocaine offenses because powder and crack cocaine are the same drug. Court found the argument to be without merit because of the "practical, real-world differences between crack and powder cocaine." (7 pages, no bibliography.) Statements such as the one made by the Herron court,
quoted in the preceding paragraph, suggests the presence of the
misperceptions surrounding crack and communities where the drug
is primarily found. Does the fact that there are "practical,
real-world differences" between the two forms of cocaine
eliminate the fact that cocaine is cocaine? I answered,
"No." United States v. Maxwell, 25 F.3d 1389 (8th Cir. 1994). The court vacated the district court's downward departure from the Sentencing Commission's guidelines in United States v. Majied.22 The court of appeals stated that "while a racially disparate impact may be a serious matter, it is not a matter for the courts."23 Accordingly, the court found the district court's departure to be improper. (14 pages, no bibliography) 18 U.S.C. § 3553(b), and U.S.S.G. § 5K2.0, clearly leave
departure from the Guidelines up to the sentencing court in
certain circumstances - circumstances that, too, are determined
based on the sentencing court's discretion. The court of appeals
statement (quoted in the preceding paragraph) is simply a
superficial reason that, sadly, is enough to align this case with
others and allow the judicial system to continue to ignore the
racial problems of judicial administration. The district court's
departure was clearly justified by even the Guidelines
themselves; its only problem was that it addressed issues that
the judicial system is not ready to confront head-on. United States v. Olvis, 97 F.3d 739 (4th Cir. 1996). Olvis and co-defendant were two of twenty-five blacks indicted after the United States uncovered a crack cocaine conspiracy involving over eighty persons - five of whom were white. None of the whites were prosecuted. The district court found that the five whites, co-defendant, and Olvis were "similarly situated" for a selective prosecution claim and that Olvis's statistical data that more than 90% of those tried for crack cocaine offenses in the division since 1992 were black, made a "non-frivolous showing of discriminatory intent" and ordered the government to produce its criteria for selecting whom to prosecute. When the government refused, the district court dismissed the indictments against Olvis and co-defendant. The government appealed. The court of appeals held that by considering only the conspirator's criminal activity and not other legitimate factors that might justify prosecuting the conspirators differently, the lower court erred in ordering the United States to provide its criteria for prosecution. The court also found the lower court's decision to be inconsistent with "the general rule that in cases involving discretionary judgements essential to the criminal justice process, statistical evidence of racial disparity is insufficient to infer that prosecutors... acted with discriminatory purpose." (9 pages, no bibliography.) United States v. Washington, 109 F.3d 335 (7th Cir. 1997). Washington challenged his sentence of life imprisonment, made pursuant to 18 U.S.C. § 3559(c)(1), partially on the grounds that the law has a disparate impact on minorities. The court held that the law satisfied all constitutional requirements and that Washington's proposition (regarding the law's impact on minorities) was: (1) unsupported by facts, and (2) irrelevant as a matter of law. (4 pages, no bibliography) Unsupported by facts! Would statistics revealing a disproportionate impact serve as factual support? The court fails to specifically address the issue by stating that Washington's entire proposition is irrelevant, as a matter of law, because equal protection principles do not require proportional outcomes.
Federal District Court Cases: United States v. Majied, No. 8:CR91-00038(02), (D. Neb. July 29, 1993). The district court departed downward from the Sentencing Commission's sentencing guidelines regarding powder cocaine and crack cocaine punishments recognizing that the guidelines cause African-American males to receive substantially longer sentences than caucasian males who traditionally deal in powder cocaine. The court saw this disproportionate impact as an "aggravating or mitigating circumstance of a kind, or to a degree, not taken into account by the Sentencing Commission in formulating the guidelines"24 that called for a departure from the guidelines. (6 pages, no bibliography) Although the sentences were vacated by the Eighth Circuit Court of Appeals, I have to admire the ability of this court to acknowledge the reality of this situation (as the Commission itself did) and deal with it accordingly. The way the district court handled this case is truly an example of justice being served.
Publications and Law Review Articles: Death & Discrimination. Gross, Samuel R. and Robert Mauro. U.S.A.: Northeastern University Press (1989). (255 pages, no bibliography; however, references through footnotes): The entire book is a report on a project, by the authors, to determine whether new capital sentencing statutes (enacted subsequent to the judgement rendered in Furman v. Georgia25) did in fact eliminate the problem that led to Furman. The book is broken down into three parts: Part I explores the background issues the authors critique; Part II is an empirical study of death sentencing patterns in eight states from 1976 - 1980; and Part III explains the causes and consequences of racial discrimination in capital sentencing. The authors admit that, "while the existence of racial discrimination in capital sentencing is clear, the same cannot be said of its causes."26 Part III of the book does an excellent job of explaining
several things related to discrimination in the administration of
the death sentence, including an in-depth two-part discussion of
the federal courts handling of the McCleskey27case,
and the Supreme Courts handling of discriminatory death sentence
cases subsequent to McCleskey v. Kemp. "Developments in the Law: Race and the Criminal Process." Harvard Law Review Students. 101 Harv. L. Rev. (May 1988): 1472-1641. (no bibliography; however, numerous references through footnotes): Although extremely lengthy, addressing issues ranging from laws enacted during slavery to racist jury misconduct during deliberations to race and capital sentencing, this article does an exceptional job of recounting the history race has played in numerous aspects of the judicial system. The article also provides potential ways to remedy some of the racial unconstitutionality of judicial administration.
"Individual and Contextual Influences on Sentence Lengths: Examining Political Conservatism." Huang, Wilson W.S., Mary A. Finn, R. Barry Ruback, and Robert R. Friedman. Prison Journal 76 No.4 (Dec. 1996): A current statistical study, studying court actions within a single state (Georgia), of the main effects of political conservatism (a measure of the political culture of the environment) and other contextual features of court jurisdiction (i.e. caseload size and court location) on prison sentence lengths and how these contextual features interact with legal and extralegal variables to influence sentence lengths. (18 pages, with bibliography) I was surprised to read that this study suggests that in less serious cases where judges could be more flexible in setting sentence length, race and social class of the defendant did not play a large role in the sentencing of felons.
"McCleskey v. Kemp: Race, Capital Punishment, and the Supreme Court." Kennedy, Randall L. 101 Harvard Law Review (May 1988): 1388-1443.(no bibliography) Kennedy's article is somewhat of an explanation of the consistency of some of the determinations and findings of the Supreme Court in McCleskey v. Kemp in relation to the way the Court has historically handled cases involving alleged discrimination in the administration of justice. Kennedy writes with the understanding and acceptance of the findings of the "Baldus study" and the fact that "as far as reported cases disclose, no defendant in state or federal court has ever successfully challenged his punishment on grounds of racial discrimination in sentencing."28 Kennedy identifies key factors leading to this result: (1) "the reluctance of judges to interfere with punishment for criminal acts because of flaws having no bearing on the individual's personal culpability29; and (2) "the Supreme Court's doctrine of purposeful discrimination"30 (emphasizing that the doctrine fails to recognize and address the type of racial oppression the "Baldus study" describes: "decisions that are susceptible to a non-racial explanation when considered individually, but reveal a pattern clearly shaped by racial sentiment when considered en masse"31). The article also identifies alternatives to dealing with the race-of-the-victim equal protection problem, versus the alternative the Supreme Court chose: "the pretense that no problem of constitutional magnitude exists".32 I agree with several of Kennedy's arguments asserted as
explanations of the Supreme Court's determinations. The Court has
displayed a tendency to refuse to address issues it chooses not
to be delegating the responsibility of handling such issues to
others - such as legislators. However, Kennedy points out a flaw
in this strategy that demonstrates the superficiality of such
delegations: How do you get legislators to change a popular but
unfairly administered institution, on the basis of racial
disparities the Supreme Court appears to have found
"completely untroubling"?33
Racial discrimination, especially towards blacks, is a reality
that reveals itself in all aspects of American society -
including the judicial system; the sooner the Supreme Court
acknowledges and addresses the existence of all types of judicial
administrative discrimination, the sooner we can begin to work on
eliminating it. "United States Sentencing Commission, Amendments to the Sentencing Guidelines for United States Courts", 60FR 25,074 (Wed., May 10, 1995). Commission proposes its reasons Congress should eliminate the differential treatment of powder and crack cocaine in the mandatory minimum penalties, and offers its alternatives for achieving Congress' purpose for the penalty provision. The Commission also points out that those it considers the most culpable and responsible for the nation's cocaine problem are the dealers of powder cocaine - not retail crack dealers. (37 pages, no bibliography) The point the Commission makes (regarding the dealers of
powder cocaine), reveals an inconsistency with Congress' purpose
for the provisions and the Commission's. If the dealers of powder
are seen as more responsible, why do they receive lesser
penalties under the provisions/guidelines? The fact that Congress
rejected these amendments and left the ratio in the provisions -
unchanged - demonstrates that there is a secondary purpose for
the differential treatment of powder and crack cocaine in the
congressional provisions. Websites: Federal Bureau of Justice Statistics: www.ojp.osdoj.gov/bjs/welcome.html: Provides statistics about several different aspects of the justice system. Includes a synopsis and abstract of Bureau of Justice Statistics (BJS) publications including: (1) "Sentencing in the Federal Courts: Does Race Matter? The Transition to Sentencing Guidelines, 1986-90"34 and (2) "Federal Habeas Corpus Review: Challenging State Court Criminal Convictions"35. The site also includes a comprehensive list of other world-wide-web ("www") sites that provide a variety of crime and justice information.36 |
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