Amicus Curiae Brief — United States v. Armstrong

Supreme ‘Court, U.S.

Ek bD

* JAN 16 1996

CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

: >

UNITED STATES OF AMERICA,

Petitioner,

—vs—

EO l—e ee

CHRISTOPHER LEE ARMSTRONG, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

—

BRIEF OF NAACP

LEGAL DEFENSE & EDUCATIONAL FUND, INC.,

AND AMERICAN CIVIL LIBERTIES UNION AS

AMICUS CURIAE IN SUPPORT OF RESPONDENTS

=—=—[—[—=—=—=—=—<—=—=—=_=_=_=—=_=_—=—=_—=_—_—__—

STEVEN R. SHAPIRO ELAINE R. JONES

American Civil Liberties THEODORE M. SHAW

Union Foundation GEORGE H. KENDALL*

132 West 43 Street L. SONG RICHARDSON

New York, New York 10036 NAACP LEGAL DEFENSE &

(212) 944-9800 EDUCATIONAL FUND, INC.

99 Hudson Street, 16th Floor

New York, New York 10013

(212) 219-1900

Attorneys for Amicus Curiae

* Counsel of Record

TABLE OF CONTENTS

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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 ...............

1. Race continues to influence

discretionary decisionmaking

within the criminal justice system ....

2. Racism, both overt and

unconscious, affects discretionary

charging and sentencing ..........

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

BO GUE occ ccvevecececiceceuss

1. Despite the courts’ current efforts

to eradicate racial bias, overt and

unconscious racism on the part of

law enforcement actors persists .....

2. Adequate information must be

collected, maintained and

disclosed when necessary in order

to determine the existence or non-

occurrence of bias-influenced

GOERS, oo ccc ccescenesss

3. Based upon the availability of

such reliable information, the

exercise of discretion can be

monitored so as to identify and

THE DISCRETIONARY DECISIONS OF

FEDERAL PROSECUTORS WHETHER TO

EXERT FEDERAL CRIMINAL

JURISDICTION OVER NARCOTICS

OFFENSES MUST BE SUBJECT TO

EFFECTIVE MONITORING TO ENSURE

THAT RACIAL BIAS DOES NOT INFLUENCE

EPP TTITTLLEL LEO 16

THE GOVERNMENT'S VIEW THAT

DISCOVERY IS NOT PERMISSIBLE UNTIL

THE DEFENDANT MAKES A SUBSTANTIAL

THRESHOLD SHOWING OF SELECTIVE

PROSECUTION, IF ACCEPTED, WOULD

IMPOSE AN UNNECESSARY AND

CRIPPLING BURDEN UPON VINDICATION

OF EQUAL PROTECTION CLAIMS ........... 19

A. The "substantial threshold” rule

overprotects the government's interest in

preserving broad discretionary prosecution

|) ee i eee 19

B. Such a rule is based upon a false premise:

that the evidence supporting such a claim

is generally and reasonably available ....... 21

c. The "substantial threshold” standard would

impose a crippling burden of production .... 23

IV. THE DISTRICT COURT'S DISCOVERY

ORDER APPROPRIATELY BALANCED

EACH PARTY'S LEGITIMATE INTERESTS ....

CONCLUSION ...

APPENDIX A

nao -

)

.

TABLE OF AUTHORITIES

Cases:

Alexander v. Louisiana,

405 U.S. 625 (1972) ...............05.

Batson v.

ee

Carter v. Jury Commission,

ES ne ee a ae

Coker v. Georgia,

433 U.S. $84 (1977)... 2... ee eee eee

Edmonson v. Leesville Concrete Co.,

$00 U.S. 614 (1991) ..............00-0.

Furman v. Georgia,

SII con cunocncoascs

Horton v. Zant,

941 F.2d 1449 (11th Cir. 1991)............

Jones v. Davis,

835 F.2d 835 (11th Cir. 1988) ............

Love v. Jones,

923 F.2d 816 (11th Cir. 1991) ............

McCleskey v. Kemp,

CO ee

Miller v. Lockhart, 65 F.3d 676 (8th Cir.

RACER Y ened gaa A eee

Powell v. Alabama,

“ese ee eee

Pages

Strauder v. West Virginia,

200 U.S. 303 (18BD) 2. ccc cece rec cccvccces 12

Swain v. Alabama,

SED UG. BIR CIGEB) 2c ccccccccccccccess 2, 23, 24

Turner v. Fouche,

SOB UD. BOB CIGTD 2 nc cccccccccccccsccccccces 2

United States v. Armstrong, 48 F.3d 1508 (9th

ee) | ae er 28

United States v. Clary,

846 F. Supp. 768 (E.D. Mo. 1994) ..... 6... 65555. 18

United States v. Hazel,

696 F.2d 473 (6th Cir. 1983) .... 2... eee eee eee 22

United States v. Hoover,

727 F.2d 387 (Sth Cir. 1984) .. 2.0... . cece ee eens 22

Miscellaneous: Pages:

Bennett L. Gershman, Prosecutorial Misconduct (1993) .. 20, 21

California Judicial Council Advisory Committee on

Racial and Ethnic Bias in the Courts, 1991-1992

Public Hearings (1993) ...... 6-6-6 cece eee e ec eees 9

D.C. Circuit Task Force on Gender, Race and Ethnic Bias, Draft

Final Report, Jan. 1995) 2... ee ees passim

Florida Supreme Court Racial and Ethnic Bias Study

Commission, Where the Injured Fly for Justice,

SS Pree passun

Florida Supreme Court Racial and Ethnic Bias Study

Commission, Where the Injured Fly for Justice,

= & BePrirrrr rere tr 5, 13, 15

ili

Pages

Georgia Supreme Court Commission on Racial and

Ethnic Bias in the Court System, Let Justice Be

Done: Equally, Fairly, and Impartially, Aug.

SUP 60065006466 06dNsebi westesecsis 5, 12, 14, 15

James Vorenberg, Decent Restraint of Prosecutorial

Discretion, 94 Harv. L. Rev. 1521 (1981) .......... 20

Massachusetts Supreme Judicial Court Commission to

Study Racial and Ethnic Bias in the Courts,

ee passim

Michael Tonry, Malign Neglect: Race, Crime, and

Punishment in America, 1995 .................. 16

Michigan Supreme Court Task Force on Racial/Ethnic

Issues in the Courts, Final Report, Dec. 1989 .... passim

New Jersey Supreme Court Task Force on Minority

Concerns, Final Report, June 1992 ......... 5, 12, 14

New York State Judicial Commission on Minorities,

Executive Summary, April 1991 .............. passim

Oregon Supreme Court Task Force, Report on

Racial/Ethnic Issues in the Judicial System,

ae Ts re passim

Richard Berk, Preliminary Data on Race and Crack

Charging Practices in Los Angeles, 6 Fed.

PEPE cictesacccecececss 17

Robert Jackson, The Federal Prosecutor, 31 J.Crim.L.

I i ale al ata a Tid ak 20

Sam Meddis, Whites, Not Blacks, At The Core of Drug Crisis,

UsA Totem, Des. TD I9GD .. cc ccccccccces 17, 18

iv

Pages

State of lowa Equality in the Courts Task Force,

Final Report, Feb. 1993 ........--55555 7, 13, 14, 15

The Washington State Minority and Justice

Commission, Racial and Ethnic Disparities in

the Prosecution of Felony Cases in King

County-Final Report, Nov. 1995 .......+5555: 5, 7,8

No. 95-157

IN THE

Supreme Court of the United States

OCTOBER TERM, 1995

UNITED STATES OF AMERICA, PETITIONER,

V.

CHRISTOPHER LEE ARMSTRONG, ET AL., RESPONDENTS.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF OF NAACP LEGAL DEFENSE

& EDUCATIONAL FUND, INC., AND

AMERICAN CIVIL LIBERTIES UNION AS

AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICI’

The NAACP Legal Defense and Educational Fund,

Inc., is a non-profit corporation formed to assist African

Americans to secure their rights by the prosecution of

lawsuits. Its purpose includes rendering legal aid without

cost to African Americans suffering injustice by reason of

race who are unable, on account of poverty, to employ legal

counsel on their own. For many years, its attorneys have

‘Letters from the parties consenting to the filing of this brief have

been lodged with the Clerk of the Court.

APPENDIX

APPENDIX A

The state and federal court task forces were charged

with determining whether racial and ethnic bias still affects

the adminisration of justice. It is impossible to capture the

thoroughness of the research conducted by each task force

and the breadth of their findings and recommendations.

However, to lend some context in which to understand the

task force reports, below is a brief description of the

methodology employed by each state and federal court task

force on race and ethnic bias in the courts and excerpts from

each study’s findings and recommendations. In addition,

where the information was available, a brief history of the

task force’s creation is included.

COMMITTEE ON RACE AND ETHNICITY TO THE D.C.

CIRCUIT TASK FORCE ON GENDER, RACE AND

ETHNIC BIAS, DRAFT FINAL REPORT, JAN. 1995

The Task Force was created in 1990 by the D.C.

Circuit Judicial Council. The Task Force was created

because, while efforts to explore race and ethnicity were

underway at the state and local levels, there was growing

recognition that these issues merited attention within the

federal judicial system as well.

The Task Force interviewed judges on the Circuit to

obtain their experiences and observations relating to gender,

race, and ethnicity. It interviewed 80% of the trial judges,

and 3 appellate judges of the Circuit. Judicial interviews

were both anonymous and voluntary. Two appellate judges

submitted written comments. The task force also conducted

focus groups with practicing attorneys, community

representatives, and courthouse personnel.

RECOMMENDATIONS

The Federal Judicial Center, or another appropriate body,

should study the results of litigation (such as employment

2a

discrimination cases) that involve issues of race, ethnicity, or

gender and that affect a significant number of racial and

ethnic minorities, through research controlling for the

gender, race or ethnicity of the parties and attorneys in such

cases.

FLORIDA SUPREME COURT RACIAL AND ETHNIC

BIAS STUDY COMMISSION, WHERE THE INJURED

FLY FOR JUSTICE: REFORMING PRACTICES WHICH

IMPEDE THE DISPENSATION _OF JUSTICE TO

MINORITIES IN FLORIDA, DEC. 11, 1990

The Commission was created on December 11, 1989

by the Chief Justice. It was charged with assessing whether

race affected the dispensation of justice and with developing

longterm strategies to eradicate any vestiges of

discrimination.

The Commission developed the findings and

recommendations contained in its report after analyzing

information from several different sources. First, the

Commission held public hearings in every region of the

state. Second, the Commission retained leading researchers

from Florida’s universities and nationally recognized experts

to conduct studies and to assist it in formulating the findings

and recommendations contained in the report.

FINDINGS:

Extensive evidence suggests that minorities are too often

subjected to the threat of abuse and brutality by law

enforcement organizations. Survey responses suggest that

African-Americans and Hispanic individuals are stopped and

detained more frequently than a non-minority would be

under similar circumstances and are treated with less respect

and more unnecessary force than are their white

counterparts.

3a

Minority juveniles are being treated more harshly than non-

minority juveniles at almost all stages of the juvenile justice

system, including: arrest; referral for formal processing;

transfer to the adult criminal justice system; secure detention

prior to adjudication; and commitment to traditional state-

run facilities.

Opportunities for informal processing and diversion are not

equally accessible to minority juveniles. The deeper the

penetration of the juvenile justice system towards "deep-end"

commitment, the greater the overrepresentation of minority

juveniles.

The differential treatment of minority juveniles results, at

least in part, from racial and ethnic bias on the part of

enough individual police officers, intake workers,

prosecutors, and judges, to make the system operate as if it

intended to discriminate against minorities. It results as well

from bias in institutional policies, structures, and practices.

RECOMMENDATIONS:

Police practices, including field adjustments, relating to law

enforcement interaction with juveniles should be recorded

for supervisory review and monitoring to determine whether

and how race or ethnicity has entered into arrest and

disposition decisions by Florida’s law enforcement personnel.

The State should mandate the establishment of procedures,

in each of the agencies comprising the juvenile justice

system, to encourage and provide means for reporting,

investigating, and responding to professionals whose

decisions appear to have been influenced by racial or ethnic

bias.

4a

FLORIDA SUPREME COURT RACIAL AND ETHNIC

BIAS STUDY COMMISSION, WHERE THE INJURED

FLY FOR JUSTICE: REFORMING PRACTICES WHICH

IMPEDE _THE _DISPENSATION _OF _JUSTICE TO

MINORITIES IN FLORIDA, DEC. 11, 1991

The Legislature, through the joint efforts of the criminal

justice and corrections committees of the House and

Senate,...should immediately undertake a review of those

cases prosecuted under both mandatory minimum statutes

and the "habitual offender" statute to determine the effect of

race or ethnicity in their selection, processing, or ultimate

disposition. To the extent that improper considerations are

playing a role, the Legislature should repeal these statutes

altogether.

The Florida Legislature should require, as a condition of

funding, that each State Attorney: a) promulgate effective

criteria which ensure the fair and equal exposure of

individuals to processing under mandatory minimum

Statutes; and b) annually submit a report to the legislative

appropriations committees detailing the racial/ethnic

composition of all individuals prosecuted under these

statutes. To the extent that such reports reveal racial/ethnic

disparities in the population of individuals who are

prosecuted under these statutes, the Legislature should

require a detailed justification for the impact of

prosecutorial decision-making in this area.

GEORGIA SUPREME COURT COMMISSION ON

RACIAL AND ETHNIC BIAS IN THE COURT SYSTEM,

LET JUSTICE BE DONE: EQUALLY, FAIRLY, AND

IMPARTIALLY, AUG. 1995

The Commission was created by the Georgia

- Supreme Court on February 1, 1993. The Commission held

six public hearings throughout the state. In addition, the

Commission conducted an attitude survey in order to assess

Sa

the perceptions of judges, clerks and attorneys practicing in

Georgia courts. All judges of the superior, state, juvenile,

and probate courts, chief magistrates, and clerks of the

superior court were sent surveys in the Fall of 1994. Fifty to

sixty percent of each group returned completed

questionnaires. The attorney attitude survey was sent to a

sample of 2,000 attorneys. Thirty-one percent of the

attorneys surveyed responded.

RECOMMENDATIONS

Each circuit should be directed to develop and implement

(pending the approval of the Supreme Court) a formal pre-

trial release policy, specifying factors used in determining

eligibility for bail.

The State has the ability to undertake additional objective

testing of the perception of bias in mandatory sentencing.

First, a complete and thorough study of the application of

[the mandatory sentencing statute] should be conducted,

breaking down data for each circuit. In order to achieve this,

information of the criminal record of the defendant, the type

of representation (private, public defender, or appointed

indigent defense), the type of disposition (plea or trial), and

the quantity of drugs should be developed, obtained and

incorporated into the relevant databases.

The Implementation Committee with the assistance of such

agencies as the Georgia Statistical Analysis Bureau (under

the auspices of the Criminal Justice Coordinating Council)

and the Prosecuting Attorneys’ Council, should see that

these studies are conducted. Periodic analyses and

assessments of other mandatory sentences should be

conducted so as to detect potential racial disparity. If such

studies do indicate racial bias in the court system, the

Implementation Committee should pursue steps to rectify

any problems.

6a

[T}he Prosecuting Attorney’s Council [should] develop

explicit, race-neutral guidelines for use in [mandatory

minimum] cases by district attorneys to safeguard against

bias.

The Commission feels that the legislature and the courts

should consider four alternative recommendations as

possible means of addressing this issue [of peremptory

challenges}:

Peremptory strikes could be eliminated in civil and

criminal cases.

De novo appellate review of trial court

decisions on Batson motions could be

provided.

Trial judges could conduct voir dire using

questions submitted in advance in writing by

counsel.

Trial judges could be encouraged to sustain

Batson’s objections when the questioned

strike was made for frivolous, “hunch-type"

reasons unrelated to the case at bar.

STATE OF IOWA EQUALITY IN THE COURTS TASK

FORCE, FINAL REPORT, FEB. 1993

The Supreme Court of Iowa established the Equality

in the Courts Task Force on December 4, 1990. The task

force held five public hearings throughout the state and

received written comments from over 300 people.

Additionally, the Task Force contracted the services of the

research firm of Selzer Boddy, Inc. to conduct four major

studies directed at judges, attorneys, court personnel, and

the general public. The Task Force also designated a team

of researchers to undertake a special retrospective study of

criminal cases to determine the effect of race in the criminal

justice process. The perceptions of the general public were

elicited via a telephone survey of a cross section of 400

7a

lowans. Surveys were mailed to 2,114 attorneys across the

state, 1600 court employees, and 351 judges. The response

rate for the written surveys was high: 84% for judges, 54%

for attorneys, and 43% for court employees.

FINDINGS

In each case, there are unexplained differences which are

not associated with any known factor but race.

The Task Force believes the uniform use of pretrial release

guidelines would decrease the arbitrary or subjective nature

of pretrial release decisions.

The Task Force has discovered that information is not easily

retrievable throughout the state to permit study of possible

race bias in the court system .. . . The benefit derived from

the uniform collection of such information from all stages of

the criminal process is significant.

The State should maintain a centralized data base that

includes information on defendant race, victim race,...along

with the range of legal and social variables included in the

present study. This would allow periodic monitoring of

charging and sentencing discrepancies along racial lines.

The Task Force believes that a collections system data base

needs to be established on an ongoing basis to gather the

facts necessary to initiate, at any time, an examination and

analysis of disparate incarceration rates among adults and

juveniles. Otherwise, it will be mecessary to conduct

expensive and time-consuming criminal case studies; such

case studies cannot be done throughout the state efficiently

or on an ongoing basis.

RECOMMENDATIONS

The results of the Criminal Case Study should be discussed

8a

at the annual judges conference. The present and future

court system database should be monitored periodically, and

patterns of racially associated disparities noted, publicly

disseminated, and specifically brought to the attention of

Districts where disparities occur.

County attorney offices should be required to keep records

of the charges on initial arrest, the charges ultimately filed,

the arrests they chose not to prosecute, the reasons they

chose not to prosecute, and the race and gender of the

alleged perpetrators.

MASSACHUSETTS SUPREME JUDICIAL COURT

COMMISSION TO STUDY RACIAL AND ETHNIC BIAS

IN THE COURTS, FINAL REPORT, SEPT. 1994

The Commission was created on August 2, 1990 by

the Justices of the Massachusetts Supreme Judicial Court.

The impetus for the Commission’s creation was an incident

that occurred in Suffolk Superior Court in August 1988.

During a criminal session of Suffolk Superior Court, two

court officers mistook Assistant Attorney General Thomas

H. Brewer, an African American, for a defendant and

attempted to bar him, in an inappropriate manner, from

gaining access to a part of the courtroom that he was

entitled to enter. The resulting publicity highlighted the

issue of racial bias in Massachusetts courts. In the Spring of

1990, the Chief Justice, responding to growing public

concern, met with bar association leaders to discuss the need

for a study. The Commission was formed following the

meeting.

The Commission held seven public hearings and

focus group meetings across the state to solicit a wide range

of public input. The Commission also surveyed the bench

and bar members, conducted an extensive research project

on the racial composition of jury pools and juries, and

examined the effect of bias on sentencing. An attorneys’

9a

survey was sent to 4,542 attorneys. A judges’ survey was sent

to 328 judges. The response rates were 56% and 80%

respectively.

RECOMMENDATIONS

The Supreme Judicial Court should undertake, on its own or

through the Massachusetts Sentencing Commission, a

comprehensive study of sentencing patterns to determine

whether there is any disparity related to racial/ethnic bias.

A sentencing study should include a detailed analysis of the

sentencing patterns of young male offenders. This analysis

should be conducted on serious crimes committed by white,

black/African American, Hispanic and Asian American

males by comparing the rates of incarceration and sentence

length across these groups.

The Trial Court should produce and distribute regular

reports of sentencing patterns by race and ethnicity.

The Office of the Commissioner of Probation, the

Committee for Public Counsel Services, the District

Attorneys’ offices, the Trial Court and local police

departments should develop coordinated information systems

which will allow comparison of the data each has collected.

The District Attorney’s office for each county should be the

primary agency responsible for collecting the data on case

processing.

MICHIGAN SUPREME COURT TASK FORCE ON

RACIAL/ETHNIC ISSUES IN THE COURTS, FINAL

REPORT, DEC. 1989

The Task Force was created on September 15, 1987

by the Michigan Supreme Court. The Task Force focused

its investigations on seven major areas: judicial behavior,

court treatment, court employment practices, ethics, attorney

10a

behavior, criminal justice and jury processes. The Michigan

Supreme Court Task Force was the first of its kind in the

nation.

The Commission was created after the Michigan

Supreme Court Citizens’ Commission to Improve Michigan

Courts called for the creation of task forces on gender and

racial/ethnic issues in the courts in 1986. The Citizens’

Commission had found that a significant and disturbing

perception existed among Michigan citizens: Over one-third

believed that individuals were discriminated against in the

Michigan court system on the basis of their gender, race or

ethnic origin.

The task force held public hearings in eight cities

throughout the state. In addition, it surveyed a random

sample of 900 attorneys who practiced in the courts. The

response rate was 45.6%. It also conducted a survey of 574

judges with an overall response rate of 45%.

FINDINGS

That trial judges should 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.

RECOMMENDATIONS

The Michigan Supreme Court should conduct a study similar

to that done in the felony sentencing project of actual bail

practices to investigate the question of disparity in bail

practices by race, ethnicity, gender, economic class and

region and to _ establish a process to develop

recommendations in the event that disparity is statistically

shown.

Current analysis of sentencing should include factors relating

lla

to the impact of and interrelationship of:

misdemeanor convictions and sentences

race, ethnic background and gender of the judge

race, ethnic background and gender of the victim

race, ethnic background and gender of the defendant

guideline departures

eac erp

All judges should receive an analysis of their own sentencing

practices on an annual basis.

NEW JERSEY SUPREME COURT TASK FORCE ON

MINORITY CONCERNS, FINAL REPORT, JUNE 1992

The Task Force was created in September 1985. The

purpose of the task force was to critically examine the

concerns of minorities with their treatment in the courts and

to propose solutions to identified problems. The Task Force

was created after Chief Justice Robert Weilentz met with

representatives of the Coalition of Minorities in the

Judiciary in the summer of 1983. The Coalition was an

organization founded in 1980 to address issues of concern to

racial minorities in the judiciary and to make

recommendations to the Chief Justice, the Supreme Court,

and the Administrative Director of the Courts on ways to

address problems relating to minority concerns. As a result

of the meeting, the Chief Justice convened a Committee on

Minority Concerns for the purpose of addressing the

concerns of the Coalition. After reviewing the Committee’s

report, in September 1985, the Task force was created.

The Task Force retained several independent

research consultants to execute a wide-ranging research

program. The Task Force also met with representatives of

bar associations, administrators of key public and private

agencies involved with the administration of justice, and

conducted telephone surveys. Thirteen public hearings were

held at different locations around the state. Written

testimony was also taken.

12a

A judicial survey aimed at capturing perceptions of

bias in the justice system was undertaken. Of the 340

Superior Court judges attending the Judicial College, nearly

50% returned the questionnaire. The response rate for

court administrators attending the Judicial Staff College was

61%.

RECOMMENDATIONS

The Supreme Court should require that all rules and

directives regarding bail be reviewed and revised in order to

promulgate procedures to be applied uniformly statewide.

The Chief Justice should consider approaching the Attorney

General to explore the possibility of jointly sponsoring an

empirical analysis of recent New Jersey samples of bail and

sentencing outcomes, controlling for key factors that

influence the outcomes of these decisions, examining the

possibility of cumulative discrimination effects over the

sequence of decisions from arrest through sentencing, and

determining the degree to which discrimination occurs at

each of those decision points.

REPORT OF THE NEW YORK STATE JUDICIAL

COMMISSION ON MINORITIES, EXECUTIVE

SUMMARY, APR. 1991

The Commission was formed on January 21, 1988 by

Chief Judge Sol Wachtler. The mandate of the Commission

was tO examine the courtroom treatment of minorities,

review the representation of minorities in nonjudicial

positions within the courts, and review the selection

processes for judges.

The Commission was created after members of the

Coalition of Blacks in the Courts met with the Chief Justice

in 1987 to discuss both the despair felt by judges, nonjudicial

officers and litigants regarding the treatment of Blacks in the

13a

courts and the underrepresentation of Blacks within the

judiciary and the legal profession.

The Commission held four public hearings

throughout New York state. Additionally, the Commission

held a series of public meetings in each county with a

minority population of at least 10%, met with most judges in

the state, met with court administrators, and met with

leaders of various bar and community associations.

The Commission conducted an attorney survey. Of

the 840 attorneys surveyed, 81% responded. The

Commission also conducted a survey of the 1,129 judges in

the State. The response rate was 57%.

RECOMMENDATIONS

Judges should review their bail and sentencing decisions to

ensure that they are fair and not influenced by racial or

ethnic stereotypes.

Sentencing statistics concerning the race of victim, defendant

and complainant should be maintained along with case

outcome and should be published by the Unified Court

System in cooperation with the New York State Division of

Criminal Justice Services.

Judges should exercise heightened scrutiny to ensure that

peremptory challenges are not used improperly in the voir

dire process.

‘The Commission on Judicial Conduct should give complaints

of racial bias high priority and keep records of its

investigations and disposition of charges in a manner

permitting analysis of whether there were any patterns of

racial or ethnic discrimination.

l4a

OREGON SUPREME COURT TASK FORCE, REPORT

ON RACIAL/ETHNIC ISSUES IN THE JUDICIAL

SYSTEM, MAY 1994

The Oregon Supreme Court Task Force was

established by the Oregon Supreme Court on February 21,

1992. The task force was created to identify problems faced

by racial and ethnic minorities in the judicial system and to

propose a course of action to address the problems and

concerns.

The Task Force gathered information from testimony

at nine public hearings throughout the state. Additionally,

7,525 persons who use the court system were surveyed

regarding issues of race and ethnicity in the Oregon court

system. Surveys were sent to 5,438 judges, court personnel,

and attorneys. The response rate was 40%. In addition to

the extensive survey research, prior research, and written

comments submitted to the task force were analyzed.

FINDINGS

Peremptory challenges, eliminating individuals from serving

on juries, are used solely because of the race or ethnic

background of prospective jurors.

In the criminal justice area, the evidence suggests that, as

compared to similarly situated nonminorities:

minorities are more likely to be arrested,

minorities are more likely to be charged,

minorities are less likely to be released on bail,

minorities are more likely to be convicted,

minorities are less likely to be put on probation,

minorities are more likely to be incarcerated.

In the juvenile justice system:

minorities are more likely to be arrested,

minorities are more likely to be charged with

delinquent acts,

minorities are more likely to be removed from their

1Sa

family’s care and custody,

minorities are more likely to be remanded for trial as

adults,

minorities are more likely to be found guilty of

delinquent acts,

minorities are more likely to be incarcerated,

minorities lack experts sensitive to the cultural

differences of minorities.

RECOMMENDATIONS

District attorneys should be required to collect and report to

the Criminal Justice Council data on the variable of race in

all charging decisions.

The legislature should direct the Criminal Justice Council to

develop uniform charging standards to be used by all

prosecutors in Oregon. The uniform standards should be

sufficiently detailed to provide meaningful limits on

prosecutorial discretion and to enable judicial review. The

Criminal Justice Council should be directed to report

biannually to the legislature on the implementation of the

standards.

The Chief Justice should require trial judges, in rendering

pretrial release decisions, to use uniform forms that include

the race of defendants.

The legislature should direct the Criminal Justice Council to

study and report the extent to which the race of a defendant

affects the outcome of a pretrial release decision, either in

the decision whether to release on personal recognizance or

in the conditions of release.

Because of the immense help that its statistics have been to

this task force, and because it is imperative that such

statistics be available in the future, the Criminal Justice

16a

Council should continue to study and report on racial

disparities in sentencing.

WASHINGTON STATE MINORITY AND JUSTICE TASK

FORCE, SUMMARY OF CONCLUSIONS AND

RECOMMENDATIONS, DEC. 19, 1990

The Task Force was established in 1987 pursuant to

legislation which sought to improve the treatment of racial

and ethnic minorities in Washington courts. The Task Force

held public forums around the state in 1988 and undertook

research studies.

The Washington Supreme Court created the Minority

and Justice Commission in October 1990 in acknowledgment

of the importance of the continuing need to determine

whether racial, ethnic and cultural bias exists in the state

court system and, when it exists, to recommend appropriate

action to overcome it. The Commission’s purpose was to

continue the work of its predecessor, the Task Force, by

implementing the Task Force Recommendations.

The data for the Commission’s study on race and

ethnic disparities in the prosecution of felony cases in King

County came from three sources: (1) an automated database

used by the Office of the King County Prosecuting Attorney;

(2) case files for a sample of approximately 500 felony cases

filed with the King County Superior Court during 1994; and

(3) personal interviews with 15 King County deputy

prosecuting attorneys.

FINDINGS:

The filing of felony charges by the King County Prosecutor’s

Office varies by the type of offense and by the race of the

offender . . . White offenders were the least likely to be

charged (60%), compared to 65% of all minority offenders.

17a

First, the effect of race, particularly African American, on

bail was significant in most analyses...Second, there were

significant differences in the amount of confinement

recommended for Black offenders and White offenders, and

deputy prosecutors were less likely to recommend an

alternative sentence conversion for Black offenders.

{Cjontrolling for legal factors, African Americans tend to

receive higher sentences than Whites and are less likely to

be provided an alternative sentence conversion.

CALIFORNIA JUDICIAL COUNCIL ADVISORY

COMMITTEE ON RACIAL AND ETHNIC BIAS IN THE

COURTS, FAIRNESS IN THE CALIFORNIA STATE

COURTS.

The Advisory Committee on Racial and Ethnic Bias

in the State Courts was appointed in 1991 by Chief Justice

Malcolm Lucas.

The Committee conducted 13 days of public hearings

to ascertain public perceptions of fairness in the judicial

system. After the hearings, a survey was completed in order

to verify the extent to which the concerns expressed in the

public hearings were shared by the general public, attorneys,

and court personnel. The survey of the general public

consisted of a random sample of 1,338 people.

Approximately 2,070 written questionnaires were mailed to

all judicial officers and top administrators of the courts.

Another 2,000 questionnaires were mailed to minority and

non-minority attorneys.

2

represented parties and have participated as amicus curiae

in this Court and in the lower state and federal courts.

The Fund has a long-standing concern with the

influence of racial discrimination on the criminal justice

system. It has raised jury discrimination claims in appeals

from criminal convictions,’ pioneered in the affirmative use

of civil actions to end jury discrimination,’ represented the

defendant in Swain v. Alabama, 380 U.S. 1965), and

filed an amicus brief in Batson v. Kentucky, 476 U.S. 79

(1986). The Fund has also participated in a number of cases

involving the influence of race upon the administration of

capital punishment.‘

The American Civil Liberties Union (ACLU) is a

nationwide, non-profit, ——- organization with nearly

300,000 members dedicated to the principles of liberty and

equality embodied in the Constitution. The ACLU of

Northern California, the ACLU of Southern California, and

the ACLU of San Diego and Imperial Counties, are its

affiliates in the state of California where this action arose.

Since its founding in 1920, the ACLU has been

particularly concerned with combatting the problems of

racial discrimination in the criminal open a. For

example, the ACLU an important role in overturning

the acne mesdaet cama ions in Powell v. Alabama,

287 U.S. 45 (1932). More importantly, the ACLU has been

deeply involved in the effort to eliminate the discriminatory

use of peremptory challenges. See e.g. Batson v. Kentucky,

supra.

? E.g. Alexander v. Louisiana, 405 U.S. 625 (1972).

> Carter v. Jury Commission, 396 U.S. 320 (1970); Turner v.

Fouche, 396 U.S. 346 (1970).

* Furman v. Georgia, 408 U.S. 238 (1972); Coker v. Georgia, 433

U.S. 584 (1977); McCleskey v. Kemp, 481 U.S. 279 (1987).

3

This case once again brings the issue of racial

discrimination in the criminal justice system to the forefront.

As this Court has previously recognized, even t

appearance of discrimination has a corrosive effect on public

confidence in the administration of justice. The actual

existence of discrimination is obviously i tible with

our most basic notions of due process and protection.

The proper resolution of this case is, therefore, of critical

importance to the Fund, and to the ACLU and its members.

SUMMARY OF ARGUMENT

The case calls upon the Court to fashion a discovery

rule for selective prosecution claims.

Despite the Court’s unceasing efforts to purge the

administration of justice of facial discrimination,

comprehensive contemporaneous studies by the state and

federal courts show that racial bias continues to influence

decision-making in the criminal justice process. Elimination

of bias from judicial proceedings requires that courts take

affirmative steps to identify instances in which bias may

influence discretionary decision-making and to prevent it

from doing so. Information relevant to bias decision-

making must be collected, maintained, and disclosed when

necessary to determine whether a decision is bias-influenced.

Today, evidence relevant to determining whether decisions

of prosecutors are influenced by race is often maintained

only by the prosecutor.

These studies as well as other sources show that

discretionary decisions by prosecutors in drug prosecutions

may sometimes be influenced by racial bias. Courts must

be prepared to explore such matters thorou whenever a

colorable basis for such a claim is presented.

The government’s view that discovery is not

permissible until the defendant makes a substantial threshold

showing of selective prosecution ignores these realities.

Such a rule overprotects the government’s interest in being

free of such discovery, is based upon a false view that

4

evidence tending to show selective prosecution is generally

and reasonably available elsewhere, and would, if adopted,

impose a crippling burden of production upon citizens facing

criminal charges who are often indigent.

The district court utilized the correct approach in this

case. Discovery of non-privileged data and charging criteria

was ordered only after respondents presented credible

evidence yy oe that only African Americans are

prosecuted in federal court for sales of cocaine base whereas

large numbers of non-blacks are prosecuted in state court

where sentences are significantly lighter, and only after the

district court gave careful, deliberate consideration to the

government’s rebuttal evidence. Such issues are best left to

the district courts, and the judge in this case clearly did not

abuse her discretion.

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

5

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 reat Gas 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 exerci

whether it be at the arrest,’ charging, bail,® jury selection,

* New York State Judicial Commission on Minorities, Executive

Summary, p. 1 (April 1991) [hereinafter "New York"}.

*For a description of each study’s methodology, see Appendix A.

"The Florida Supreme Court Racial and Ethnic Bias Study

Commission’s findings are typical. The Commission found that "An

overwhelming majority of those interviewed (i ing, signi

i believed that minorities are treated

differently from and more harshly than non-minorities at the arrest

stage. [Mlinority juveniles are more likely to be formally arrested

than similarly situated white juveniles." Florida Supreme Court

Racial and Ethnic Bias Study Commission, Where the Injured Fly for

Justice, Dec. 11, 1990, at 62 [hereinafter Florida I]. The New Jersey

Supreme Court Task Force on Minority Concerns concluded that

there was significant evidence of discrimination by police who channel

minority criminal defendants to the court system. New Jersey

Supreme Court Task Force on Minority Concerns, Final Report, June

1992, at 132 [hereinafter New Jersey); see also, ¢.g., The Washingto

State Minority and Justice Commission, Racial and Ethnic Disparities

in the Prosecution of Felony Cases in King County-Final Report, Nov.

1995, at 52 [hereinafter Washington] (deputy prosecuting attorneys

6

or sentencing stage. One report summarized:

In short, the reality is that African SN - 7

are being treated differently at several stages of _

the . . . justice system. When the object is

punishment -- detention, formal adjudicat or

commitment -- minorities get more; when what is

being handed out is inf 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.

report that predominantly minority areas are targeted by the police

for proactive drug stings); Oregon Supreme Court Task Force, Report

on Racial/Ethnic Issues in the Judicial System, May 1994, at 3

[hereinafter Oregon}.

"See, e.g., D.C. Circuit Task Force on Gender, Race and Ethnic

Bias, Draft Final Report, Jan. 1995, at 215 [hereinafter D.C. Circuit);

New York, at 38-40; Florida Supreme Court Racial and Ethnic Bias

Study Commission, Where the Injured Fly for Justice, Dec. 11, 1991, at

23 [hereinafter Florida IT] ("non-White offenders were less likely than

Whites, other factors being equal, to have bail set below schedule

boundaries”); New Jersey, at 133; Michigan Supreme Court Task

Force on Racial/Ethnic Issues in the Courts, Final Report, Dec. 1989,

at 51 [hereinafter Michigan] (“a district judge at a judicial forum

indicated that it was sometimes expedient as a matter of political

reality to place a higher bond on a minority defendant"); Georgia

Supreme Court Commission on Racial and Ethnic Bias in the Court

System, Let Justice Be Done: Equally, Fairly, and Impartially, Aug.

1995, at 132-136 [hereinafter Georgia}; Oregon, at 3.

*See Georgia, at 33; Michigan, at 49.

Florida I, at 59-60.

\ 7

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, Jowa,

at 187 ("the combined effect [of racial bias] during

—— in the court system is not slight"); Florida I, at 73;

ashington, 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

"'See, e.g., State of lowa Equality in the Courts Task Force, Final

Report, Feb. 1993, at 174, 179-80, 187 [hereinafter Jowa). Florida I, 66-

67; Washington, at 5, 51.

'*For example, in misdemeanor cases, whites were assessed fines

while Blacks and Hispanics with similar backgrounds were sentenced

to jail for similar misdemeanors. New York, at 41.

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 r periods of confinement

were recommended for Black offenders than for White

offenders, even after we took into account legally relevant

factors").

This yeas treatment has been acknowl

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

'? D.C. Circuit, at 165.

9

had decided that for Blacks, the sentencing option of

jail and longer jail sentences was the more

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

a rit is oso tee bh tna

embarrassed, so just gave a 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 to a black defendant.

A judge will be lenient to a white defendant

when a black man commits the same

offense, will send him away. It is

appalling. may see a white defendant

and they connect.”

4

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.

'* California Judicial Council Advisory Committee on Racial and

Ethnic Bias in the Courts, 199]-1992 Public Hearings, at 87 (1993).

* D.C. Circuit, at 162. Another prosecutor told the D.C. Circuit

task force, "The judges are predominately a white bunch and they

tune into factors that are familiar to them personally.” D.C. Circuit,

at 214.

ilantly, racial bias ya never be eradicated from the

administration of justice and public confidence will wane

further. One task force — confidence in our

system of justice must become > we ~~

member of that system." Michigan, at 23. See also

Massachusetts, at 4.

Only by acknowl that bias persists and by

taking the necessary steps to with it will courts dispel

the notion held by some members of the ic that the

courts are tolerant of race discrimination. Undertaking this

chalienge 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

better serve the community, they would also

e their own j 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.

* D.C. Circuit, at 5-6.

11

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, j continue to exhibit overt racism in the

courtroom. 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 should be revoked for nonpayment of

diversion In open court, the judge admonished the

defendant as follows:

I’m not going to let him just hold out money.

a= Se ee darn good and well where

that money from [his job] went. I'll bet a

and that’s

business, except that he’s got this

obligation here.

‘Doris Wong, Shannon Office to Probe Alleged Court Assault, The

Boston Globe, Dec. 13, 1988, at 29.

‘For example, an African-American attorney related his

experience to the New York task force:

In criminal court in New York County I was grabbed

from behind in a chokehold around the throat by a

court officer who assumed that I was a defendant

approaching too close to [a judge] who had

motioned me to approach the bench.

New York, at 88.

12

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 task force noted that "there are

incidences of bias

conduct or conduct ting from a lack of awareness.”

Georgia, at 9. See also, Oregon, at 2.

ee Se < oe 2 ae

unconscious racism makes it in one respect

problematic than overt racism: without heightened

attentiveness, it is likely to go detected in any individual

case. As one report put it, e the presence of poison in

food or certain pollutants in the air, bias in

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 , 100 US. 303

(1880); Batson v. , 476 U.S. 79 (1986); Edmonson v.

Leesville Concrete Co., US. 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

aes eee intellect, unswerving compassion

and most importantly, a level of candor that will engender

respect dpa 4 the Court might reach." New Jersey,

at ii.

13

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 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.

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 ring 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 uired considerable

financial resources. See, e.g., Jowa, 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

‘*Law enforcement officers consulted cooperatively with the task

forces in a variety of ways, including releasing an array of information

about their internal practices. See Florida II, at 46, Massachusetts, at

93-4 (District Attorneys’ offices provided the most useful data on

sentencing disparities because their files were the most complete).

The cooperation of the prosecutors’ offices was essential because

relevant information was not always available to the public. See D.C.

Circuit, at 200.

14

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 Jowa, at 190 (any patterns of associated

disparities should be icly disseminated, specifically

brought to the attention of the Districts where the disparities

occurred); New York, at 43 (sentencing statistics concerning

the race of the victim, defe t and ainant along with

case Outcome should be maintained and ished by the

Unified Court System in cooperation 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.

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. 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

See, e.g., lowa, at 190 (county attorney offices should keep

records of the charges on initial arrest, the charges ultimately filed,

the arrests they chose not to prosecute, the reasons they chose not to

prosecute, and the race and gender of the alleged perpetrators);

Massachusetts, at 24, 95 (District Attorney's office should be

responsible for collecting data on case processing between the police,

the department of probation, and other law enforcement agencies);

Oregon, at 35 ("District attorneys should be required to collect and

report to the Criminal Justice Council data on the variable of race in

all charging decisions”).

15

by having data available will it be ¢ 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, pate discretion has been

regarded ee ee oe as virtually immune from

external scrutiny 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

oe the discriminatory exercise of peremptory challenges

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,

"These include promulgating regulations to channel discretion,

conditioning funding to prosecutor's offices on the requirement that

their offices eliminate the discriminatory effects of their decisions,

requiring the submission of reports detailing discretionary practices

for review, and creating a state-wide database which includes

information about sentencing and charging decisions for outside

monitoring. See Oregon, at 35, 44; Georgia, at 31; Florida I, at 66-67,

76; Florida II, at 44; Massachusetts, at 97; New York, at 43; lowa, at

188; Michigan, at 55.

* See Florida II, at 43-44; Georgia, at 166-67.

16

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 New York, at

59 (“Judges should exercise heightened scrutiny to ensure

that peremptory challenges are not used improperly”).

II. THE DISCRETIONARY DECISIONS OF FEDERAL

PROSECUTORS WHETHER TO EXERT FEDERAL

CRIMINAL JURISDICTION OVER NARCOTICS

OFFENSES MUST BE SUBJECT TO EFFECTIVE

MONITORING TO ENSURE THAT RACIAL BIAS

DOES NOT INFLUENCE THEM

Prosecutorial discretion contributes to the widening

gulf between juvenile and adult African-Americans’ and

other offenders’ incarceration rates. While "the total

number of white juveniles brought to court on drug charges

in 1990 exceeded the total number of blacks by 6400 ine

a far greater number of white youths were sent home

without being tried, were released to drug counselin

programs, or were placed on probation. Consequently,

more blacks than whites ended up on correctional

facilities." Figures for adult crack and cocaine

Ron Harris, Hand of Punishment Falls Heavily on Black Youth,

L.A. Times, August 24, 1993 at 7 [hereinafter Punishment]. Other

data shows that drug abuse is centered largely in the white

community. African-Americans make up 12% of the U.S. population,

13% of all monthly drug users, but represent 35% of those arrested

for drug possession, 55% of those convicted of drug possession, and

74% of those sentenced to prison for drug possession. The

Sentencing Project, Young Black Americans and the Criminal Justice

System: Five Years Later, Oct. 1995. See also Michael Tonry, Malign

Neglect: Race, Crime, and Punishment in America, 1995, at 49.

("Blacks are arrested and confined in numbers grossly out of line with

their use or sale of drugs”).

17

prosecutions are similar.”

A recent survey of prosecutions for crack cocaine

offenses conducted by the Los Angeles Times revealed that

not a single white offender had been convicted of a crack

cocaine offense in the federal courts serving the Los les

metropolitan area since 1986, despite the fact that whites

comprise a majority of crack users. Dan Weikel, War on

Crack Targets Minorities Over Whites, L.A. Times, May 21,

1995, quoted in The Sentencing Project, at 10 (1995).

Moreover, according to a study by Richard Berk, between

1990 and 1992, over 200 white crack dealers were prosecuted

by the state authorities in Los Angeles, a period during

which the U.S. Attorney’s office prosecuted not one white

defendant for crack. Richard Berk, Preliminary Data on

Race and Crack Charging Practices in Los Angeles, 6 Fed.

Sentencing Rep. 36 (1993).

Just as the existence of a pattern of employing

peremptory challenges with the result of removing Black or

other minority jurors from panels suggests the possibility

that this aspect of prosecutorial discretion may be influenced

by racial bias, and requires the carefully delineated judicial

remedy created by this Court in Batson, so too do the data

summarized above support -- indeed compel - the

conclusion that a similar judicial remedy must be available

to preserve the integrity of the federal criminal justice

system. Unless the potential for discriminatory decision-

making is addressed, public support for and confidence in

federal criminal procedures will be eroded by the suspicion

*In 1989, former Drug Czar William Bennett described the

typical cocaine user as a “white, male, high school graduate, employed

full time and living in a small metropolitan area or suburb.” Sam

Meddis, Whites, Not Blacks, At The Core of Drug Crisis, USA Today,

Dec. 20, 1989, at 11A. The Justice Department offered the following

profile of crack users in the United States during 1991: 49.9% of

crack users are White, 35.9% are Black, and 14.2% are Hispanic.

U.S. Department of Justice, Bureau of Justice Statistics, Drugs, Crime,

and the Justice System, Dec. 1992, at 28.

18

that drug laws generally, and the “cocaine base" laws

specifically, are bei administered in a_ racially

discriminatory manner. t is surely the view of a i

number of law enforcement officials” and j who

have been on the front lines throughout the "War on Drugs.”

* Former Atlanta Police Chief Eldrin Bell remarked recently:

I wonder if because it is blacks . . . who are going to

jail in massive numbers, whether we . . . care as

much? If we started to put white America in jail at

the same rate that we’re putting black America in

jail, I wonder whether our collective feelings would

be the same, or would we be putting pressure on the

president and our elected officials not to lock up

America, but to save America?

Nkechi Taifa, Laying Down the Law, Race by Race, Legal Times, Oct.

10, 1994, at S36.

Steven Madison, an Assistant U.S. Attorney in Los Angeles,

admits that minorities are targeted in crack cocaine arrests and

prosecutions. He stated that while crack is sold and used in middle

and upper class communities, law enforcement focuses on crack

cocaine dealers in minority neighborhoods because, as a result of

limited resources, “we went where the brush fires were." Sam

Meddis, supra 0.24, at 11A.

© A federal judge remarked recently:

As sad as it may sound, and as much as the Court

feels discomfort in pointing it out, if young white

males were being incarcerated at the same rate as

young black males, the statute would have been

amended long ago.

United States v. Clary, 846 F. Supp. 768, 792 (E.D. Mo. 1994).

19

Ill. THE GOVERNMENT’S VIEW THAT DISCOVERY

IS NOT PERMISSIBLE UNTIL THE DEFENDANT

MAKES A SUBSTANTIAL THRESHOLD

SHOWING OF SELECTIVE PROSECUTION, IF

ACCEPTED, WOULD IMPOSE AN

UNNECESSARY AND CRIPPLING BURDEN

—— OF EQUAL PROTECTION

Despite the swirling controversy surrounding federal

drug prosecutions as well as the contemporary evidence that

racial bias continues to influence charging decisions yet is

difficult to ferret out, the government seeks a rule which, if

adopted, would render it immune from any discovery in

nearly all selective prosecution cases, regardless of their

merit. The Court should reject this approach because it is

based upon a false premise that overprotects the prosecution

function and would impose an unrealistic and crippling

burden of production upon defendants.

A. The "substantial threshold” rule overprotects

the government’s interest in preserving broad

discretionary prosecution powers.

The government asks the Court to hold that "judicial

inquiry into a prosecutor’s reasons for bringing a prosecution

should not even begin unless there is a substantial and

concrete basis for suspecting unconstitutional conduct." U.S.

Brief at 19. Two justifications are advanced in support: "[b]y

requiring a signi t threshold showing, courts may avoid

unwarranted and highly intrusive inquiries into a

prosecutor’s judgment . . . [as well as] prevent the needless

diversion of government and judicial resources from the

adjudication of the criminal case to the disposition of the

selective prosecution motion." Jd. at 20. Neither justifies

such a demanding standard.

To acknowledge that the prosecutor enjoys spacious

discretion in deciding whom to prosecute is also to recognize

that such power "is the power to control and destroy

20

people’s lives.” Justice Jackson observed that this broad

power of choice held within it the r to abuse "some

p of unpopular persons... ."" Thus, it is the very

breadth of such power that creates the potential for unequal

treatment.

The risk of unequal treatment created by

standardless discretion is troubling not only as a

threat to due process but also in its own right as well.

Giving prosecutors the power to invoke or deny

punishment at their discretion raises the p

that society’s most fundamental sanctions be

imposed arbitrarily and capriciously and that the least

favored members of the community -- racial and

ethnic minorities, social outcasts, the poor -- will be

treated most harshly.”

Prosecutors are clothed with such broad powers for

a noble pu -- to enable them to seek the "equitable

objective of individualized justice" within a system of limited

resources.” But any time the defendant’s race enters the

calculus, this high purpose is defeated, and the justification

for deferential judicial oversight vanishes.

When a citizen makes a colorable showing that race

likely influenced the prosecutor’s decision to file the pending

charge, and claims that she needs access to government files

to generate additional proof of invidious discrimination, the

Court should require nothing more. Once an honest

7” Bennett L. Gershman, Prosecutorial Misconduct, at 4-7

(1993)[hereinafter Gershman].

* Robert Jackson, The Federal Prosecutor, 31 J.Crim.L. & Crim.

3, 5 (1940).

*? James Vorenberg, Decent Restraint of Prosecutorial Discretion,

94 Harv. L. Rev. 1521, 1555 (1981)[hereinafter Vorenberg].

*® Gershman, at 4-6.

21

question is raised about the very legitimacy of the

proceeding, it is in the government’s interest as much as the

defendant’s to have the issue resolved conclusively by a

neutral istrate based upon ail relevant information.

Requiring the defendant to show more serves no purpose

other than to suggest that only citizens who are particularly

nimble at detecting bias enjoy a meaningful opportunity to

be heard.

B. Such a rule is based upon a false premise:

that the evidence supporting such a claim is

generally and reasonably available

Even though "the fate of those accused of crime is

determined by prosecutors . . . out of public view -- in the

hallways of the courthouse, in the prosecutors’ offices, or on

the telephone," the government argues that the evidence

necessary to demonstrate selective prosecution is generally

available from sources other than the government's files.

U.S. Br. at 26-27. Thus, it is suggested, the defense is not

unfairly burdened by a substantial threshold rule.

This has surely not been our experience, nor that of

other respected students of the issue. Former federal

prosecutor Gershman has written that "proving improper

motivation . . . is extremely difficult, and tends to explain the

infrequency with which" selective prosecution claims are

advanced.~ He believes that discovery should follow once

"a colorable entitlement or plausible justification" is

demonstrated.” Former Department of Justice Official

Vorenberg agrees:

. the problems involved in proving that a

prosecutor had an impermissible motive or personal

** Vorenberg, at 1522.

* Gershman, at 4-8.

*° Id. at 4-26.4.

22

animus are enormous. Rarely will a prosecutor

explicitly signal improper motives. Unless he does,

the defendant must try to draw a clear inference of

discrimination by comparing his case with those of

persons who were not charged, .. . .*

The cases upon which the government relies prove

only that in certain unusual circumstances, the defendant

may have the ability to present considerable evidence of

similarly situated persons who were not prosecuted, as well

as some evidence of illicit motive. They hardly make the

case for a hard and fast heightened showing in every case.

For example, in United States v. Hoover, 727 F.2d (Sth

Cir. 1984), Hoover was one of three of nearly 300 air traffic

controllers criminally prosecuted after going out on strike.

He was able to show the pool of similarly situated persons

easily because they all belonged to the same union and he

was their leader. Similarly, in United States v. Hazel, 696

F.2d 473 (6th Cir. 1983), the defendant was able to show

other similarly situated persons who were not prosecuted

because they were members of a tax revolt group to which

he belonged.

More often, however, and as in this case, citizens

claiming selective prosecution have no —_ or ready

access to the identity of similarly situated persons whom

prosecuting authorities chose not to prosecute for similar

offenses. And where the basis of the motion is racial

discrimination, it is extremely rare for public court files to

contain information on the defendant’s race. As the task

forces found, generation of a data base with the identity of

such persons that includes their race and ethnic identity is

an enormously time-consuming and expensive proposition

when undertaken without the cooperation of the prosecuting

attorneys’ office. Thus, there is little substance to the

™ Vorenberg, at 1542.

23

ae my ty assurance that a heightened burden would not

oreclose the assertions of such claims.”

od The "substantial threshold” standard would

impose a crippling burden of production

Indeed, the government’s argument bears an

uncomfortable resemblance to re wor of the

(1965) The sorernnen v. U.S. 202

: mment insists that tors are

presamed to act fa good faith end thus should not be subject

even to judicial inquiry into illicit motive in the absence of

concrete evidence showing otherwise.” Just as unfettered

exercise of the peremptory challenge was good for the cause

of justice because it gave the government and defense

appropriately broad leeway to remove biased jurors who

might escape for-cause removal, the government claims

similarly broad prosecutorial discretion best assures that

limited resources will be used in the most appropriate

cases.” Courts are ill-equi in any event, the argument

continues, to review decisions, and requiring a

prosecutor to explain why she is prosecuting a particular

case, like having her explain why a peremptory strike was

used to eliminate a particular juror, will bring about delay

* In Batson v. Kentucky, 476 U.S. 79 (1986), the United States

advanced a similar argument in support of retention of the rule of

Swain v. Alabama. See Batson v. Kentucky, No. 84-6263, Brief of

United States As Amicus Curiae Supporting Affirmance at 26-

27)("We also find unpersuasive the argument that Swain makes it

unduly difficult to demonstrate impermissible use of peremptory

challenges even when such abusive practices are actually going on. .

. . Moreover, public defender’s offices and defense counsel's

organizations are well situated to collect the requisite statistics.”) As

it did in Batson, the Court should reject such assurances as

unrealistic.

* Swain, at 222; U.S. Br. at 16, 19.

” Swain, at 221; U.S. Br. at 17.

24

and deflect limited resources from the prosecution of law

breakers.*

If the Court accepts the government's position, and

predicates access to even non-privileged i ion on

defendants’ making a robust showing, defendants will be

oak) ene hen Ce es ee

Protection claims rr A hy first pull

os aS cctemeatet Gale Ghee

sources, a that in many cases will require painstaking

review of hundreds of court files, consultation with scores of

other attorneys, and other sources sufficient to

generate a body of similarly steted persons not prosecuted.

Such a burden significantly exceeds that which the

Court determined, in Batson v. Kentucky, 476 U.S. 79, 92

n.17 (1986), to be crippling. Justice Powell described such

a burden t examples from lower court cases:

peremptory challenges to exclude blacks from the

jury on account of race. As the Court of Appeals for

the Fifth Circuit observed, the defendant would have

to investigate, over a number of cases, the race of

peremptory challenges.

believed this burden to be “most to meet.

In jurisdictions where court records do not reflect the

jurors’ race and where voir dire proceedings are not

transcribed, the burden would be insurmountable. [citation

omitted]

We now know that the Swain rule was able to shelter

for years the intentional discriminatory conduct of certain

* Swain, at 221-22; U.S. Br. at 17.

2s

prosecutors.” ion of a similar standard here would

surely generate si sorry results.

IV. THE DISTRICT COURT’S DISCOVERY ORDER

APPROPRIATELY BALANCED EACH PARTY’S

LEGITIMATE INTERESTS

The district court ordered discovery in this case only

after deliberate and 1 consideration both of the

respondent's that a Statistical disparity

existed in the race of defendants prosecuted in federal court

for crack distribution violations and of the government's

explanations for that disparity.

With their motion for discovery, respondents

introduced evidence showing a pattern of prosecutions which

suggested that race was a significant charging factor.

Respondents demonstrated that all 24 crack cocaine cases

ed by the government and closed by the Federal

ic Defender’s Office in 1991 involved black defendants.

At the hearing on the discovery motion, the district

judge concern that the "government hasn’t offered

any anation at all as to why . . . persons . . .being

brought . . . to Federal court for these drug offenses . . . all

are black. The judge offered the government an

* See e.g., Jones v. Davis, 835 F.2d 835 (11th Cir. 1988)(blacks

systematically excluded from petit jury service in Mobile County,

Alabama over significant period of time by state peremptory strikes);

Love v. Jones, 923 F.2d 816 (11th Cir. 1991)(blacks systematically

excluded from petit jury service in Madison County, Alabama via

State peremptory challenges); Horton v. Zant, 941 F.2d 1449 (11th

Cir. 1991)(blacks systematically excluded from petit jury service in 8

Georgia counties from 1974-81 via peremptory challenge); Miller v.

Lockhart, 65 F.3d 676 (8th Cir. 1995)(blacks systematically excluded

from two Arkansas county petit juries from 1970-75 by state’s use of

peremptory strikes).

“Hearing of Sept. 8, 1992, at 8.

26

opportunity to provide an ion. However, at the

nersine, the esetant Ushed Attorney was unable to

offer any explanation for the di , Stating, "I can’t

explain why the public de rs Office has only

encountered black defendants [in] crack cocaine cases—I

would have no explanation for that.""

In the face of the government’s e inability to

ain the statistical disparity, the district ordered

limited discovery, explaining that "what the wants to

which of these cases will be filed in state court versus

Federal court and if so, what is that criteria.“

To determine the appropriate scope of the discovery

order, the Court took into account nl oe ewe

assertion that one criteria it used for deciding r to file

in federal rather than state court was the existence of a joint

federal/state investigation. Government counsel explained

that a joint federal/state investigation is initiated when there

is use of a firearm in connection with a narcotics trafficking

violation.“ In to this explanation, the

directed discovery of four specific non-privileged items: a list

of all cases from 1989-1992 in which the government charged

both cocaine base offenses and firearms offenses, the race of

defendants in each of these cases, whether each case was

investigated by federal, state or joint law enforcement

authorities, and an ion of the criteria used by the

United States in deciding whether to bring cocaine base

cases in federal court.

In its motion for reconsideration of the discovery

order, the government offered some of its criteria for

prosecuting cases in federal as opposed to state court. As

“Id. at 9.

“Id. 26-27

“Id. at 20-21.

27

part of its tion, the mment submitted the

declaration of the Chief of the Criminal Complaints Section

of the U.S. Attorney’s Office which stated that the decision

to bring the instant case in federal court was made because

the case met the general criteria the government applies to

all crack cases. However, the purported general criteria

simply described several of the instant case. Counsel

for the government later suggested that the official general

criteria applied to all crack cases were in fact the same as

the criteria present in the instant case.“

In response to the government’s explanation,

nts argued that a number of the defendants did not

satisfy the suggested criteria“ | Moreover, respondents

introduced evidence demonstrating that white crack cocaine

dealers exist and are prosecuted in state court only.“

After carefully weighing all the evidence, the district

judge found the explanations offered by the government

“Government’s Motion for Reconsideration, at 24-25; Hearing of

Dec. 4, 1992, at 6-8.

“Hearing of Dec. 4 1992, at 26

“First, the respondents introduced an affidavit of defense

attorney Reed, Director of the Criminal Courts Bar Association

Indigent Defense Panel. The Indigent Defense Panel handles more

State court criminal cases than any other association within Los

Angeles County and is composed of over two hundred defense

lawyers. Reed attested that as Director of the Indigent Defense

Panel, he speaks to many state court judges, prosecutors, and defense

attorneys who state that there are many crack cocaine sale cases

prosecuted in state court that involve racial groups other than blacks.

Hearing of Dec. 4, 1992, at 28-29. Second, defense counsel O’Connor

submitted an affidavit stating that she had spoken to Chris

Fernandez, the intake coordinator at Impact House in Pasadena,

California, who stated that in his experience dealing with the

treatment of cocaine base addiction, there are equal numbers of

minority and caucasian users and dealers of crack.

28

inadequate, concluding that the government had failed to

make clear the criteria, "if there is any criteria, for bringing

this case and others like it in Federal court.“” Thus, the

court affirmed her discovery order.

The district judge’s approach to ordering the limited

discovery in this case was cautious, careful reasonable.

First, the a IES See SS oe & 8

pattern ial prosecutions, mment a

and fair opportunity to offer ontatenasiin, Only after the

government was unable to offer a single explanation for the

racial disparity did the judge order limited discovery of

nonpriviledged relevant information. This order is

structured in a way that limits its reach to evidence directly

relevant to issues that the government articulated were its

criteria for bringing crack cocaine cases in federal as

opposed to state court.

The Court should view this order as a sound

resolution of this fact-intensive dispute. Because

respondents have set forth a colorable showing, and "without

discovery, the contention that ‘other similarly situated’ | have

not been prosecuted . . . may be impossible to show,” the

lower court judgment should be affirmed.

“Hearing of Jan. 5, 1993, at 3.

“United States v. Armstrong, 48 F 3d 1508, 1521 (9th Cir. 1995)(en

banc )(Wallace, C.J., concurring).

29

CONCLUSION

Amici curiae respectfully uest that the Court

affirm the judgment of the Court of Is.

Respectfully submitted,

Steven R. Shapiro Elaine R. Jones

American Civil Theodore M. Shaw

Liberties Union *George H. Kendall

Foundation L. Richardson

132 West 43 Street NAACP Legal Defense

New York, NY 10036 & Educational Fund,

(212) 944-9800 Inc.

99 Hudson Street

16th Floor

New York, NY 10013

(212) 219-1900

Counsel for Amici Curiae

*Counsel of Record

Dated: January 16, 1996