Who We Are

". . . And Justice for All"(?)

The last four words of the Pledge of Allegiance set forth one of the key values of America.   Above the U.S. Supreme Court is the motto: "Equal Justice Under Law." The Fourteenth Amendment to the U.S. Constitution promises the same. Yet the reality is much different.

Juvenile Justice: According to the recent study, And Justice for Some, prepared by the National Council on Crime and Delinquency (NCCD) and funded by the Justice Department, the Ford, MacArthur, Rockefeller, Walter Johnson, and Annie E. Casey foundations, and the Open Society Institute:

"African American juveniles are overrepresented with respect to their proportion in the population at every decision point in the process (Figure 16). African Americans were:

15% of youth under age 18
26% of juvenile arrests
31% of referrals to juvenile court
34% of youth formally processed by the juvenile court
32% of youth adjudicated delinquent
46% of youth judicially waived to criminal court
40% of youth in residential placement
58% of youth admitted to state adult prison" (p. 4)

"This pattern of disproportion [in detention] was across all offense categories but was most dramatic among drug offense cases . . . . Cases involving White youth were 66% of those referred but only 44% of those detained. In contrast, drug offense cases involving African American youth were 32% of those referred but 55% of those detained. In every offense category, a substantially greater percentage of African American youth were detained than White youth." (p. 2)

"Minority youth were also much more likely to be waived from juvenile court to adult criminal court than white youth when charged with the same offenses. . . . [I]n drug cases, White youth were 59% of cases petitioned but only 35% of cases waived to adult court. African American youth charged with similar offenses were 39% of cases petitioned but rose to 63% of cases waived to adult court. Thus, in drug cases, White youth enjoy a 24% 'waiver advantage' while African American youth carry a 24% 'waiver disadvantage'. " (p. 2)

"Overall, the [incarceration rate in] state public facilities for youth with no prior admissions was six times higher for African American than White youth (373 and 59) and 3 times higher among Latino than White youth (166 and 59) in 1993 . . . . Among youth with one-to-two prior admissions, the overall admissions rate for African American youth exceeded the White rate by a factor of 7 (96 and 14) and the admissions rate for Latino youth was twice the rate of White youth (28 and 14)." (p. 3) [emphasis added]

"In addition, in a meta-analysis of studies on race and the juvenile justice system, researchers have found that about two-thirds of the studies of disproportionate minority confinement showed negative 'race effects' at one stage or another of the juvenile justice process." [citing Leonard, K., Pope, C., & Feyerherm, W. (eds.). (1995). Minorities in Juvenile Justice. Thousand Oaks, CA: SAGE , Inc.

According to a U.S. Justice Department report issued August 12, 2001, "Racial disparities in prisons are . . . holding steady. . . . About 10 percent of all black males between 25 and 29 years old were in federal and state prison, compared to 2.9 percent of all Hispanic males and 1.1 percent of all white males in the same age group." Newton, C./Associated Press, "State Prison Numbers Fall, First Time Since '72," Maui News, August 13, 2001, A1.

The Justice Department's Office of Juvenile Justice and Delinquency Prevention (OJJDP) reviewed available data in 1999 and concluded, "There is substantial evidence that minority youth are treated differently from majority youth within the juvenile justice system." OJJDP, 1999, p. 3, cited in Institute of Medicine, National Academy of Sciences, Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, 2002, p. 80. The IOM Study goes on to report the following conclusions after review of pertinent literature: "According to data collected by the [OJJDP], minority youths face a higher probability than white youth of being arrested, referred to court in-take, held in short term detention, petitioned for formal processing, adjudicated delinquent, and confined in a juvenile secure facility. . . . A growing number of well-controlled studies demonstrate that minority youth are treated differently in the juvenile justice system than white youth, even considering the severity of crime and rates of offenses." Id.

Racial Profiling in Traffic-Related Searches:

In recent years the systematic practice of stopping and searching motorists at least partly because of their race has come to light in a number of jurisdictions. According to a survey by the Washington Post, the Henry J. Kaiser Family Foundation, and Harvard University, 37 percent of black Americans said they had been "unfairly stopped by police because of [their] race." The same question was answered positively by 20 percent of Hispanics and 11 percent of Asians. Morin & Cottman, "Discrimination's Lingering Sting: Minorities Tell of Profiling, Other Bias," Washington Post, June 22, 2001, A1.

In 1999 in New Jersey, a former state Attorney General acknowledged the existence of a pattern of racial profiling in traffic stop searches in that state. Since that time, according to a report issued by the current state Attorney General, these patterns "continue with little improvement". "Minorities accounted for 73 percent of people searched by troopers on the New Jersey Turnpike in 2000, down from 84 percent from 1994 to 1996," according to a draft report of the New Jersey Senate Judiciary Committee cited in "N.J. Panel Advises End to Consent Searches," Washington Post, May 28, 2001, A10.

Missouri's Attorney General has reported that "police stop black motorists at a rate 30 percent higher than they do white drivers and search them 70 percent more often." The report "also found that Hispanic drivers, when stopped, are twice as likely to be searched as white drivers." While indicating that the data are insufficient to "prove for a statistical certainty the existence of racial profiling," Attorney General Nixon also said, "However, in reviewing the data, I have found nothing that would dispel the perception of a racial profiling problem." Washington Post, June 3, 2001, A12.

This year, the Maryland legislature passed legislation prohibiting police traffic stops based on race.   Maryland is one of thirteen states to pass laws requiring data collection and/or prohibiting racial profiling in traffic stops and searches. Enactment of the Maryland law followed a law suit filed after a Harvard-educated, African American attorney was stopped by Maryland police, refused to consent to a search of his car, and was held for an hour while a state trooper sent for a drug sniffing dog. In the course of that litigation, the existence of a confidential police memo was discovered "urging troopers in Western Maryland to be on the lookout for black drug traffickers in rental cars with Virginia tags, similar to the the car Wilkens and his family were traveling in." Montgomery, "Racial Profiling in Maryland Defies Definition -- or Solution," Washington Post, May 16, 2001, A1.

"Under a federal court consent decree, traffic stops by the Maryland State Police on Interstate 95 were monitored. In the two year period from January 1995 to December 1997, 70 percent of the drivers stopped and searched by the police were black, while only 17.5 percent of overall drivers -- as well as overall speeders -- were black." Leadership Conference on Civil Rights, "Justice on Trial: Racial Disparities in the American Criminal Justice System," Exec. Summary.

By year 2000, however, little improvement seems to have occurred. "In all, 63 percent of drivers forced out of their car were minorities." This was the case, even though "Police point out that they stop far more white drivers than black ones. . . " Montgomery, Washington Post, op cit.

Police Use of Force and Race:

In Cincinnati, OH, on April 7, 2001, Timothy Thomas, an apparently unarmed African-American youth wanted for numerous "traffic offenses and two misdemeanors" was shot and killed by a police officer, who claimed that he thought Thomas was reaching for a gun at the time. "Thomas, 19, was the fourth black man slain by police since November [2000] and the 15th since 1995, a period when no whites have died at the hands of police." [emphasis added] "Justice Dept. Begins an Inquiry Into Cincinnati Police, "Washington Post, April 14, 2001, p. A2.

The city of Cincinnati is 43 percent African-American. Police officials noted that "of the 15 men killed since 1995, 12 were armed." (p. A2.)

On September 26, 2001, a Cincinnati municipal judge acquitted the police officer of all charges, despite evidence presented by the prosecution that the officer had given "conflict statements to investigators, initially saying that his gun 'just went off' during the chase and later saying that he fired because he thought Thomas was armed and made a quick movement." The victim's mother reacted by saying that "Justice means 'just us.' If you are a police officer, you have true justice. If you're not, you don't. Pierre, "Officer Is Acquitted in Killing That Led to Riots in Cincinnati," Washington Post, September 27, 2001, A2.

"The Justice Department, acting in the wake of police shootings and rioting in this Ohio city, has told Cincinnati that it should make broad policy changes to prevent the unreasonable use of police force. The recommendations came in a 23-page report issued Wednesday by a Justice Department Task force formed soon after rour days of rioting in April . . . " "Nation in Brief -- Cincinnati," Washington Post, October 26, 2001, A36.

In Prince George's County, Maryland, "An FBI spokesman said yesterday that four [of seven civil rights] investigations will seek to determine whether police violated the civil rights of our men shot in separate incidents dating to 1997. All of the men were unarmed and shot in the back. Two of them died." Whitlock, "FBI to Probe Pr. George's Police Cases," Washington Post, August 3, 2001, A1, A6-A7.

"A study [sponsored by the National Institute of Justice, an arm of the U.S. Department of Justice] has uncovered widespread evidence of racial bias by Prince George's County police, finding that white officers use more physical force than black officers when arresting African American suspects. The pattern was detected during an examination of all use-of-force reports filed by Prince George's officers during the first six months of 1999.   Researchers determined that black suspects generally received rougher treatment at the hands of white officers than black officers, regardless of the degree to which they resisted arrest. . . . The findings bolster accusations of racial brutality that have dogged the Prince George's County Police Department for decades. . . . In comparison with the findings in Prince George's, researchers found that race had no bearing the amount of force used by Miami-Dade County, Fla., police, who also participated in the study. . . .In 1990, after an unarmed African immigrant was fatally injured by four white officers during a traffic stop, a special commission warned that the department would have to change its culture to win the community's confidence. . . . From 1990 to 2000, Prince George's police shot and killed more people, per officer, than of the 50 biggest police departments in the United States." Whitlock & Fallis, "Study Finds Racial Bias in Prince George's: White Officers More Forceful When Arresting Black Suspects," Washington Post, November 4, 2001, C1, C4.

A series of publications have examined the disproportionate number of minorities shot by police in other U.S. cities. See, for example, Amnesty International, Police Brutality and Excessive Force in the New York City Police Department (1996), which concluded: ". . . the evidence suggests that the large majority of the victims of police abuses are racial minorities, particularly African-Americans and people of Latin American or Asian descent. Racial disparities appear to be most marked in cases involving deaths in custody or questionable shootings, an issue Amnesty International believes should be the focus of particular inquiry." See also Leen, et. al., "District Policy Lead Nation in Shootings: Lack of Training, Supervision Implicated as Key Factors," Washington Post, November   , 1998, A1: "None of the police shootings of civilians has occurred in the more affluent areas west of Rock Creek Park, according to police records from 1994 through May 1998. . . . Three times in the last three years, police have shot fellow officers, killing two and wounding the third. In all three instances, white officers shot black officers in civilian clothes, including a pregnant female officer, after mistaking them for criminals."

[more to come]

Racial Bias in Jury Selection:

See Rimer, "In Dallas, Dismissal of Black Jurors Leads to Appeal By Death Row Inmate," New York Times, February 13, 2002: This article recites the facts of a death penalty case involving a black defendant charged with murdering a white store clerk, in which the prosecutors struck 10 of the 11 possible black jurors. In the appeal of the Miller-El conviction, defendant cited "testimony from four former prosecutors whose time in the Dallas County office collectively covered the period from 1977 to 1989. The four said the office had an unofficial policy to exclude blacks from juries." One of the four, who is African-American and now a trial judge said that ""The policy in a nutshell was to try to get an all-white jury of old white men." In addition, the defendant cited a Dallas Morning News article quoting a "1963 internal memo in the district attorney's office advising prosecutors who were picking juries: 'Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated.'"

Sentencing:

Disparity in Sentencing Crack Versus Powder Cocaine Offenders: The 1995 annual report of the U.S. Sentencing Commission included a Majority Opinion, which stated: "Congressional and public concern over current policy stem primarily from the fact that those convicted of crack cocaine distribution, most of whom are minorities, are punished much more severely than those convicted of powder cocaine distribution without sufficient justification. . . . The Commission concluded, however, that the current sentencing scheme which calculates sentences for all crack cocaine offenders using a 100-to-1 quantity ratio and provides for sentences several times longer on average than for similar powder distributors is unfair and mistargeted. Under the 100-to-1 quantity ratio, an offender must distribute 100 times as much powder cocaine as a similar crack offender to receive the same base sentence. Thus all crack cocaine offenders, whether violent or non-violent, receive the especially severe sentences." [emphasis added]

The 1999 annual report of the U.S. Sentencing Commission summarizes the results of a study by Kevin Blackwell, Race and Traffic Stops: The Effect of Criminal History. Blackwell's study provides insight as to the effect of racial profiling on the sentences of those charged with other crimes:

"Black offenders are twice as likely as White offenders, and two and a half times more likely than Hispanic offenders, to have their criminal history [adjustment factor adversely] affected by [convictions] for these two driving offenses [i.e., with a suspended license and driving without insurance]." (p. 49)

"Both of these offenses are revealed to law enforcement officers only after a vehicle is stopped for other reasons."

The study finds, "Black offenders affected would have received sentences, on average, 12.1 months shorter had these [minor traffic] offenses not been included in their criminal scores." (p. 49)

The U.S. Sentencing Commission's 1999 annual report also references a 1995 "multivariate analysis study" showing that "Black offenders on average receive ten percent higher sentences than White offenders." The Commission report indicates that this apparent disparity "disappears" when "statutory factors [such as mandatory minimum sentences" and "prosecutorial factors" are taken into account, citing Blackwell, The Effect of Prosecutorial Discretion on Sentencing Disparity.

"According to a study by the Sentencing Project, approximately one
out of three African-American males between the ages of 20 and 29 is under criminal justice supervision -- either in prison or jail, or on probation or parole," said Jeremy Travis, Director, National Institute of Justice in a 1997 speech, citing The Sentencing Project, "Race, Ethnicity, and the Criminal Justice System," in Young Black Men and the Criminal Justice System: A Growing National Problem, Washington, DC (1995).

The disparity in sentencing is even greater for women than men. According to the 1999 report by Amnesty International, "African American women are eight times more likely to be incarcerated
than white women; and Hispanic women are four times more likely."

Incarceration Rates:

"Eskimoes, Indians and Aleuts, all known [in Alaska] as Natives, make up 37 percent of prisoners in the state, although they are only 16 percent of the population." Rosen, "Right Panel Hears Alaskan Natives' Complaints of Bias," Washington Post, August 25, 2001, p. A20.

The Death Penalty:

"Three-quarters of those convicted of participating in a drug enterprise under the general provisions of [21 USC section] 848 have been white and only about 24% of the defendants have been black. [4] However, of those chosen for death penalty prosecutions under this section, just the opposite is true: 78% of the defendants have been black and only 11% of the defendants have been white," according to the Staff Report by the Subcommittee on Civil and Constitutional Rights Committee on the Judiciary, Racial Disparities in Federal Death Penalty Prosecutions 1988-94, 103rd Cong., 2d Sess. (March 1994).

"Following the [1972 Supreme Court decision in the Furman case], legislatures adopted death sentencing procedures that were supposed to eliminate the influence of race from the death sentencing process," continues the Subcommittee Staff report.  "However, evidence of racial discrimination in the application of capital punishment continues. Nearly 40% of those executed since 1976 have been black, even though blacks constitute only 12% of the population. And in almost every death penalty case, the race of the victim is white. . . . Last year alone, 89% of the death sentences carried out involved white victims, even though 50% of the homicides in this country have black victims. Of the 229 executions that have occurred since the death penalty was reinstated, only one has involved a white defendant for the murder of a black person." Id.

According to a review by the Government Accounting Office, "In 82% of the [28] studies [reviewed], race of the victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found more likely to be sentenced to death than those who murdered blacks. This finding was remarkably consistent across data sets, states, data collection methods, and analytic techniques. The finding held for high, medium, and low quality studies." (GAO), Death Penalty Sentencing: Research Indicates Pattern of Racial Disparities (1990), p. 5.

Researchers at the University of Louisville had found in 1995 that, as in other states, blacks who killed whites were more likely to receive the death penalty than any other offender-victim combination. T. Keil & G. Vito, "Race and the Death Penalty in Kentucky Murder Trials: 1976-1991," 20 American Journal of Criminal Justice 17 (1995).   In fact, looking at the makeup of Kentucky's death row in 1996 revealed that 100% of the inmates were there for murdering a white victim, and none were there for the murder of a black victim, despite the fact that there have been over 1,000 African-Americans murdered in Kentucky since the death penalty was reinstated. Editorial, "Who Gets to Death Row," Louisville Courier-Journal, Mar. 7, 1996 (citing Univ. of Louisville study). Note: In 1998, Kentucky overwhelmingly passed a bill which would allow defendants in capital cases to use statistical evidence of racial discrimination to show that race influenced the decision to seek the death penalty. If the judge finds that race was a factor, the death penalty would be barred. (Herald-Leader, 3/31/98). The governor's signature makes Kentucky the first state to pass such a "Racial Justice Act." (text of bill).

"A Justice [Department] study released in September [2000] showed that 16 of the 20 inmates on death row [for federal crimes] as of last July were black, Hispanic or a member of another racial minority, and that minorities accounted for about 74 percent of the defendants prosecuted for capital crimes over the last five years." Eggen, "New Administration Casts Doubt on Halting Federal Executions," Washington Post, May 10, 2001, p. A11.

But see Department of Justice, "The Federal Death Penalty System:
Supplementary Data, Analysis and Revised Protocols for Capital Case Review," June 6, 2001, reported in Eggen, "U.S. Death Penalty System Not Biased, Ashcroft Declares," Washington Post, June 7, 2001, p. A20, and Stout, "Attorney General Says Report Shows No Racial Bias in Death Sentences," New York Times, June 7, 2001:

- Excerpts from The Washington Post Story : "Attorney General John D. Ashcroft said yesterday that a new study shows 'no evidence of racial bias in the administration of the federal death penalty', arguing that blacks and Hispanics are actually less likely than whites to face the threat of capital punishment after being charged. But the study also showed that minorities are more likely to be charged with capital crimes in the first place and that four of every five convicts who end up on federal death row . . . are non-whites. The study . . . was the final version of a review begun by former attorney general Janet Reno, involving 973 potential capital cases between January 1995 and July 2000. The final study found that Reno sought the death penalty for 27 percent of whites, 17 percent of blacks and 9 percent of Hispanics. The review also showed, however, that . . . whites were twice as likely to escape death sentences through plea agreements with prosecutors."
- Excerpts from the New York Times Story: "Attorney General John Ashcroft said today that a Justice Department study had uncovered no intentional racial or ethnic bias in how capital punishment was administered in federal cases. Mr. Ashcroft told the House Judiciary Committee that a review of 950 cases had shown 'no evidence of racial bias' and that black and Hispanic defendants were, in fact, less likely than white defendants to be subjected to the death penalty. . . . In asserting that minority defendants fared better, Mr. Ashcroft told the lawmakers that, in the cases submitted for Ms. Reno's consideration, she had sought the death penalty for 38 percent of the white defendants, 25 percent of the black defendants and 20 percent of the Hispanic defendants. . . . Death penalty statistics are not always clear-cut. For instance, while Mr. Ashcroft talked about fairness in the department's review process and percentages of people of different races who were recommended for execution, the federal government has not executed anyone since 1963. There are now 21 people on federal death row; only 3 are white. . . . The Justice Department study found that only nine of the 94 United States attorney districts accounted for about 43 percent of all cases in which prosecutors called for the death penalty. Among the leaders were the Eastern and Southern Districts of New York, the Eastern District of Virginia and Northern Texas."

"Although Ashcroft noted that prosecutors sought capital punishment against 38 percent of the white federal defendants eligible for that penalty, he did not say that four-fifths of the 973 capital defendants were minorities, critics complained. . . . The population of the government's small death row in Terre Haute, Ind., is 85 percent minority with three whites, 14 blacks, and three Latinos, including Garza [since executed]. Non-whites also account for 83 percent of all potential capital cases brought by federal prosecutors in the last five years, according to the [June 2001] Justice study. Whites charged with capital offenses were twice as likely as minorities to escape the death penalty by entering into a plea bargain. The study offers little explanation for the racial disparity. In essence, the Justice study, which covered 1995 to July 2000, showed that once people were charged with a federal capital crime, race seemed to have little effect on whether they faced the death penalty. But criminologist said the study revealed little about why such a large proportion of inmates who face federal prosecution are black and Hispanic, which they said, is the real source of inequity in the numbers. . . . [According to] Robert S. Litt, an associate deputy attorney general in the Clinton administration . . . 'the difficult question they haven't answered is: Why are 80 percent of people charged with capital eligible crimes black or Hispanic? Why Juan Garza and not John Gotti?' . . . One of the busiest jurisdictions is the Eastern District of Virginia, which is second only to Puerto Rico in the number of federal capital cases brought from 1995 to July 2000. All but five of the 66 defendants there were minorities, and all but one of those were black. All the white defendants were charged with espionage. . . . [F]ormer assistant U.S. attorney in the district, Andrew J. McBride, told the Senate Judiciary Committee last week that 'the sad fact is that non-whites are statistically much more likely to commit certain crimes of violence that might lead to death penalty prosecutions.' . . . 'Do you mean to say that they really know there are no white-dominated drug rings in all of the Eastern District of Virginia?' [Columbia University Law Professor Samuel] Gross said. 'To assert that fact with no supporting evidence really does begin to sound like the New Jersey State Police.'" Eggen, "Death Penalty Foes Fault Justice Study," Washington Post, May 19, 2001, p. A3.

Senator Russell Feingold (D-Wis.) has called for a moratorium on federal executions because, among other reasons, he indicated that the 2001 Justice Department study failed to determine whether use of the death penalty is the result of racial profiling by prosecutors in certain crimes, such as the trafficking of crack cocaine, according to Locy, "Feingold Calls for Halt to Executions," USA Today, June 14, 2001, p. 3A.
Public Opinion: In a 1999 Gallup Poll, the public supported capital punishment in murder cases by 71-22% (with 7 percent having no opinion), even though a majority believe that the death penalty may tend to fall more heavily on minorities and the poor. "Critics of capital punishment contend it unfairly targets minorities and the poor, and the American public tends to agree. When asked whether a poor person is more likely than a person of average or above average income to receive the death penalty for the same crime, 65% of Americans agreed, compared to 32% who disagreed. The spread narrows when Americans are asked whether blacks are more likely than whites to receive a death sentence for the same crime. Fifty percent believe a black person is more likely than a white to face the death penalty for the same crime, while 46% disagree."

Solutions: For solutions to these problems, see Healing the Racial Divide

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