Prosecutors as the Most Powerful Actor in the Criminal Justice System φ Race, Racism and the Law

 

The racial disparities in our criminal justice system are extraordinary and well-documented. In 1995, nearly one in three African American men between the ages of twenty and twenty-nine were under the supervision of the criminal justice system–either in jail, prison, on probation, or on parole. Today, one in every ten black Angela J Davismales in his thirties is in prison or jail on any given day. Over 60% of all prisoners in 2010 were Black or Latino. The disparities exist at every step of the criminal process, from arrest through sentencing.

Much has been written about why the American criminal justice system is so fraught with racial disparity. Some point to discriminatory *823 decision-making by criminal justice officials at each step of the process while others suggest that disproportionate offending is the cause. In fact, there are many complex reasons for this unfortunate phenomenon. Criminal justice officials–including police officers, prosecutors, judges, and corrections officials–make discretionary decisions that often have a racial impact. In addition, the socioeconomic causes of crime disproportionately affect people of color. The impact of the War on Drugs cannot be overstated, and there are undoubtedly many other factors that have contributed to the startling statistics and overwhelming evidence of racial disparity. Not surprisingly, as the causes of the racial disparities in our criminal justice system stem from many sources, so must the solutions.
* * *

Prosecutors are the most powerful officials in the criminal justice system. They make the decisions that control the system, and they exercise almost boundless discretion in making those decisions.  Many argue that police officers are the most important officials in their role as the gatekeepers who bring individuals into the system. There is no doubt that police officers exercise broad discretion in deciding whether to stop and/or arrest individuals for criminal behavior. However, police officers only have the power to bring individuals to the courthouse door. It is the prosecutors whose decisions keep them there and firmly entrench them in the system–decisions that have life-changing consequences.

The most important prosecutorial decisions are the charging and plea bargaining decisions. Prosecutors control and almost predetermine the outcome of criminal cases through these two critical decisions. They decide whether to charge an individual with a crime and what the charge or charges should be, and they enjoy vast discretion in making this decision. Even if a prosecutor believes she can prove a defendant’s guilt beyond a reasonable doubt, she is not required to charge that individual. If she does decide to charge, she often has discretion to charge either a misdemeanor or felony. For example, if an individual is arrested with a large quantity of cocaine, the police officer might recommend that the person be charged with Possession with Intent to Distribute Cocaine–a felony that carries a mandatory minimum sentence. The prosecutor has a number of choices. She may decide to charge the person with the felony, but she also has the discretion to charge him with simple possession–a misdemeanor that may result in a probationary sentence with fewer collateral consequences. The prosecutor may also choose not to charge the person at *833 all. The charging decision is totally within the discretion of the prosecutor.

Prosecutors enjoy the same discretion in the plea-bargaining process. They are not required to offer the defendant a plea to a lesser offense, but if they do, they decide what that offer will be. Certainly a defendant may agree to plead guilty to a lesser offense if the prosecutor dismisses all other offenses, but the decision is up to the prosecutor. And with the existence of so many offenses that carry mandatory minimum sentences, the plea bargaining power has become even more important. Since going to trial always carries the risk of conviction, the only way a defendant can be assured that he will not be convicted of an offense carrying a mandatory minimum sentence is to plead guilty to a lesser offense. Ninety-five percent of all criminal cases are resolved by way of a plea. Prosecutors’ control of the charging and plea-bargaining decisions almost permits them to predetermine the outcome of most criminal cases.

Charging and plea-bargaining decisions have a tremendous impact on racial disparities in the criminal justice system. If a prosecutor charges an African American with a crime but chooses not to charge his similarly situated white counterpart, or chooses to charge the white counterpart with a less serious offense, she will create an unwarranted disparity. But the problem is a complex one. A prosecutor is rarely presented with two cases–one white defendant, one black–with exactly the same circumstances (same prior record, same facts, etc.) where she consciously chooses to treat the black defendant more harshly. She may unconsciously empathize with a white defendant and give him preferable treatment, or she may offer a white defendant better treatment for legitimate reasons that produce a racial impact.

Consider the case of a white defendant who is arrested for selling cocaine in his dorm room. The arresting officer recommends that he *834 be charged with distribution of cocaine–a felony offense with a five year mandatory minimum sentence. The defendant’s parents hire an attorney who tells the prosecutor that the defendant is suffering from a debilitating drug addiction and was selling drugs only to support his own addiction. The attorney indicates that the defendant has been accepted to a six-month program at a residential drug treatment facility. He also informs the prosecutor that the defendant is an honor student who planned to apply to law school, that he has never been arrested in his life, and that a felony conviction would ruin his career and his life. A prosecutor might legitimately offer such a defendant a plea to a misdemeanor offense, or even dismiss the case all together. One could see how a prosecutor might empathize with such a defendant, subconsciously seeing himself and perhaps remembering his own “youthful indiscretions.”

That same prosecutor might handle the case of a similarly situated black defendant quite differently. Consider the black defendant arrested for selling cocaine on the street corner in his neighborhood. The arresting office recommends the same charge–distribution of cocaine. This defendant is poor and represented by an overworked public defender. The public defender discovers that his client is addicted to cocaine and was selling the drug only to support his habit. The family cannot afford to pay for residential treatment and there are no free programs available. The defendant does not have a prior criminal record but is a high school dropout with no employment prospects. The public defender asks the prosecutor to consider dismissing the case, and the prosecutor declines.

The prosecutor’s decisions in these cases would produce a racial disparity, but were her decisions unfair or unjustified? Shouldn’t a prosecutor pursue an outcome that results in an alternative to incarceration, thereby saving scarce government resources, especially if she does not believe that the defendant poses a danger to the community? Is it the prosecutor’s fault that the black defendant could not afford to pay for a drug program and was neither employed nor in school? Yet the black defendant did not appear to be any more deserving of a prison term than the white defendant. The prosecutor may have had an unconscious bias towards the white defendant and against the black defendant, but how could that be proven? And even if it were true, would it matter, considering all the other factors?

If prosecutors charge African American and Latino defendants with crimes while neglecting to charge their similarly situated white counterparts, they may be engaging in race-based selective prosecution. *835 Race-based selective prosecution violates the Constitution, but proving it is difficult. As with racial profiling, the victim of selective prosecution must prove that the prosecutor intended to discriminate against him because of his race. The Court practically closed the door on all claims of race-based selective prosecution when it decided United States v. Armstrong. In Armstrong, the Court held that in order to get discovery to prove selective prosecution, the defendant must show that similarly situated whites could have been charged, but were not –an impossible showing for almost anyone.

The Supreme Court has consistently required proof of intentional discrimination in criminal cases, and the amount and type of proof necessary have made successful challenges extremely difficult, if not impossible. In McCleskey v. Kemp, Mr. McCleskey presented a sophisticated study of how the death penalty was implemented in the state of Georgia. The study, conducted by Professors David Baldus, Charles Pulaski, and George Woodworth (known as “the Baldus Study”) produced startling racial disparities in the implementation of the death penalty and concluded that black defendants who kill whites were more likely to receive a death sentence. The Court accepted the validity of the study and its findings, but nonetheless declined to reverse Mr. McCleskey’s death sentence. Because the study did not prove that the prosecutors in Mr. McCleskey’s case intended to discriminate against him because of his race, the Court rejected his claim.

The difficulty of proving intentional discrimination does not pose the most difficult challenge, since intentional discrimination is rarely the cause of racial disparity in today’s criminal justice system. Most racial disparities are caused and/or exacerbated by prosecutors’ race-neutral decisions which may be influenced by unconscious racism. *836 These race neutral decisions, even though unintentional, may have a racial impact.

Whether or not prosecutors intentionally or unconsciously discriminate against defendants of color in the charging and plea-bargaining processes, their decisions–even the race-neutral ones–may cause or exacerbate racial disparities. Their tremendous power and discretion is often exercised in ways that produce unintended and undesirable consequences. However, that same power and discretion can be used to remedy the problem. The next section will examine one possible solution.

* * *

Racial disparity in the criminal justice system is a complex problem with many disparate causes. Its elimination will require change within and outside of the criminal justice system. The socio-economic causes of crime may never be totally eliminated. However, individuals in the criminal justice system can have an impact on the problem. Prosecutors are particularly suited to help eliminate racial disparities because of their power and discretion.

Prosecutors must not only be willing to replicate the Prosecution and Racial Justice Program, they must be willing to change their practices and policies in ways that will have a real impact. Sometimes these changes will involve abandoning traditional methods of decision-making to achieve fairness. For example, even though considering *851 a defendant’s prior record as a factor in the decision to charge is appropriate, if the existence of prior records is the main reason why otherwise similarly situated black defendants are being charged while whites are not, prosecutors should consider abandoning that factor. Public safety must remain the priority, but there are many defendants arrested for nonviolent offenses with criminal records of nonviolent offenses. Even if prosecutors focused on nonviolent offenses alone and abandoned or reduced reliance on traditional charging considerations in those cases, they could make a difference.

The Prosecution and Racial Justice Program is not a panacea, but it is one remedy that can make a difference. However, it can only work with the participation of chief prosecutors who are willing to make racial justice a priority. The prosecutors who have worked with PRJ have demonstrated that commitment. They took a chance that produced positive results in their offices and serve as examples for other prosecutors who seek to fulfill their duty to assure a fair and effective criminal justice system.


Angela J. Davis is a Professor of Law at American University Washington College of Law and the former director of the Public Defender Service for the District of Columbia.

Support Race, Racism And The Law

The Fear of Black Men: A Pathology, A Culture

Black Millennials

By Brother Victorious

America has always controlled and led its people by perpetuating ignorance and fear. Whether the WWII propaganda of the Japanese, the hyper-sensualized Arab terror threat, or stripping enslaved African people of their culture upon their arrival, ignorance and fear has always been the most efficient tool. In the present day, popular media limits the true history of entire ethnic and cultural groups to ensure that citizens remain docile and lack self-empowerment, while feeding them ten second sound bites of celebrity opinions, who are highly unqualified to speak on the complex racial issues. This idea of American ignorance is becoming harder to prove because many believe they are experts, simply based on their own human experience. Though living does give one some sense of practical understanding, I disagree that it gives one the ability to assert facts.

Due to fear and ignorance that America has birthed, an age-old…

View original post 818 more words

Black Lives Matter Profiles: Remembering the Joyful Spirit of Malcolm Ferguson φ The Atlanta Star

atlanta star banner

Black Lives Matter Profiles: Remembering the Joyful Spirit of Malcolm Ferguson, Killed After Filing a Lawsuit Against the NYPD

 
This profile is part of an ongoing series of narratives focused on men and women who have been killed by the police. It is an attempt to counteract media bias, which often vilifies these men, women, boys and girls. These stories have been captured through the voices of the victims’ family members. I have been fortunate to meet the families through my activism in the Black Lives Matter movement and through work in various organizations.

Even before Michael Brown was gunned down in Ferguson, Missouri, the name Ferguson was analogous to police violence and murder. On March 1, 2000, the unarmed Malcolm Ferguson was gunned down blocks from his home in the Bronx.

“Malcolm was my biggest baby,” laughs Malcolm’s mother, Juanita Young, who is a parent to four other children.

Malcolm was born on Oct. 31, 1976, in the Bronx. “He was a loving, happy-go-lucky little boy,” Young explains. He trusted his loved ones, and Young giggles as she tells of a time Malcolm was convinced by his brother that he was Superman. He then attempted to fly out the window. Young recalls when Malcolm discovered Santa Claus was his mother, and instead of crying, he laughed and was happy all the same. He loved his mother.

“He was always worried about me because I’m legally blind. He was very close to his sisters and brothers because his father died when they were young,” Young says.

Malcolm was Young’s second to oldest son—her oldest, James, was 11 months older than Malcolm. Malcolm and his brother developed a strong relationship, but it was Malcolm who took on the leading role of big brother and acted like a father to his three younger siblings when their own father was not around. He went to great lengths to take care of his mother as well.

Like many boys, Malcolm loved to play basketball and liked to ride his bike, exploring different areas of the Bronx, all while protecting his family.

“We would tease him because he didn’t go with lots of girls. He would say that if anyone would do anything to his sister, he would be so defensive. So, he didn’t want to just go with any girl,” says Young.

Artist Kate Deciccio Painting of Malcolm's mother Juanita Young.

With a kind-hearted and devoted character, Malcolm grew up with lots of friends and felt pressure from his peers to have more name-brand things. Like many of his peers, he decided to sell drugs for some extra money. He ended up being arrested and serving eight months in prison for drug-related offenses when he was 17 years old. It was in prison where Malcolm finished his high school degree.

Malcolm was so negatively affected by his time incarcerated that he vowed never to return to prison. “He would lay at the corner of my bed and tell me the different horror stories and said, ‘I don’t [ever], ever want to go through that again,’” Young recalls.

Malcolm, then only a teenager, and Young spoke every day while he was incarcerated. Young had a miscarriage while Malcolm was locked up, and she remembers how guilty Malcolm felt. He felt, as the protector, that had he been home, perhaps the baby would have been born. Malcolm did everything in his power to ensure the safety, security and well-being of his beloved family—of his cherished mother.

“There is so much now that I do that I wouldn’t have to do if he were alive. If I would go to the laundry, he would go. He would ask me, ‘Ma, wait until I come back.’ Because of my blindness, he really protected me. There were so many times I had been beat up or whatever, and Malcolm felt the need to protect me,” Young explains.

One time, Young was standing outside of her building when someone asked her for directions, and as Young began to search through her purse, Malcolm was at the window, banging, urging the passerby to ask someone else, out of a fear that she could be robbed. He would leave no opportunity for anyone to take advantage of his mother.

It was not just Young and her other children Malcolm sought to protect. “Malcolm wanted to be a paralegal to help people after what he witnessed in prison. He felt he wanted to help people who were incarcerated,” Young says.

Upon leaving prison, Malcolm took an honest job at a car wash, so that he could make money as he pursued a career as a paralegal. His mother was content and knew that his brief stint in illegal pursuits was done.

“It was better than him asking me for quarters,” Young jokes, “I used to go to Atlantic City with my friends. He always would say, ‘Mom, do you have quarters around here?’ ”

Like many formerly convicted people, Malcolm was constantly harassed and profiled by the police after his time in prison. The young, 6-foot-1 Black man was continually harassed by the NYPD in the Bronx despite no involvement with crime or any illegal activity.

“Every time the cops arrested him, the judge would let him go because he wasn’t doing anything. The judge wouldn’t even buy it,” Young says.

One time, the police arrested Malcolm and instead of properly placing the handcuffs around his wrists, the police aggressively placed them over his thumb. His thumb was so injured that Malcolm had to be taken to emergency services. In response to the violent act, Malcolm decided to take legal action against the NYPD for his injuries in police care. He was still involved in the lawsuit when he was killed. After the lawsuit began, the police harassment increased.

“He still kept coming home and telling me the cops were bothering him. He couldn’t go nowhere without the cops stopping him,” Young explains.

When 23-year-old Amadou Diallo was shot and killed by the NYPD in the Bronx in February 1999 (also unarmed), Malcolm was angered and disturbed, like many in New York. He joined in the massive rallies in 2000 when Diallo’s killers were acquitted.

“He saw how the cops treated him and his friends. He knew what happened to Amadou was not right,” explains Young.

That day, Young was alerted by a friend to turn on the TV and was subsequently told that Malcolm would not be coming home.

“I saw [the police] dragging [Malcolm] on the ground arresting him [for peacefully protesting],” Young says.

Then the police started to come after Young. They began pressing seemingly ridiculous charges against her (one such charge was walking a dog without a leash). Young insists that the police would do anything to get her away from her apartment.

On March 1, 2000, about a year after Diallo’s death, just several days after the acquittal, Young was approached in her home by a police officer who told her that Malcolm, her loving son, her protector, was found dead in the hallway of her building. (Young would later find out that Malcolm had been killed, shot in the head, in the streets.) The shock sent Young into respiratory arrest, and she ended up having to go to the emergency room that same night.
Young claims that the police had been threatening Malcolm because of the legal action he was taking against the NYPD for their brutal arrests. Malcolm was unarmed and was not involved in any illegal activity. He did not attack a police officer, nor did he try and resist arrest, as he was doing nothing wrong to warrant arrest. Malcolm, presumably on his way home from work, was approached by Officer Louis Rivera, a plainclothes officer, and then shot in the street. Witnesses attest to this story, although the police claim Malcolm was shot in an apartment building while selling drugs, and then was shot in a struggle between himself and Officer Rivera. There were no drugs found on Malcolm.

Malcolm is remembered as a brother to James, Saran, Buddy and D’Nai. He was an adoring son to his mother, who has worked nonstop since 2000 on his behalf to fight for greater police accountability and to end violence rooted in racism at the hands of the police. Malcolm himself had hoped to work with the legal system to advocate for those most brutalized by the system. Instead, his life was cut tragically short.

The police officer who murdered Malcolm still is a police officer. Young continues to fight on Malcolm’s behalf.

“I think about what he would be like today. What joy he would have brought me,” Young says.

Tess Raser, originally from Chicago, is a teacher in Brooklyn and an active member of the growing Black Lives Matter movement. She works with various groups, including We the People and the Stop Mass Incarceration Network.

The Threat to the Fair Housing Act l James Perry, National Housing Advocacy Leader

“The Gutting of the Fair Housing Act”
Discussion with James Perry,National Fair and Affordable Housing National Leader and Advocate 
Saturday, January 24, 2015 LIVE 10 pm ET

Listen and Call in Line: 347-838-9852
Join us Here for our LIVE Chat : http://bit.ly/1COpRMQ

The Supreme Court has heard the arguments in the case which threatens the ability of housing discrimination complainants to get a share of fairness in law. Will the Court discount the strength of the Fair Housing Act to protect those for which it is intended ? Will predatory lending have free reign ? Will Black people just simply have to take the rejections and subjective measure of landlords and banks, and will their teen sons be the arbiter by some racist landlord to "just say no’? James Perry was there to hear the arguments and we will talk with him as his weighs in on whether the this Act will go the way of other civil rights protections under this Court. Join us.

"The Gutting of the Fair Housing Act"
Discussion with James Perry,National Fair and Affordable Housing National Leader and Advocate 
Saturday, January 24, 2015 LIVE 10 pm ET

Listen and Call in Line: 347-838-9852
Join us Here for our LIVE Chat : http://bit.ly/1COpRMQ

See on Scoop.itOUR COMMON GROUND with Janice Graham ☥ Coming Up

The ALFO Show l Refried Mojo and the #SOTU

The ALFO Show

 Friday, January 23, 2015

  LIVE           10 pm ET

The President Finds HIS MoJO – AGAIN and FINALLY !!!

Top of the show tonight The State of the Union

We hope that you will join us LIVE .
It’s "JUST DAMN’" Talk Radio 

January 17, 2014 LIVE 10 pm ET
 LISTEN LIVE  <—-         
"Serving HOT Grits with his Politics"

” The Nexus of Politics, Truth and Common Sense”

 The ALFO Show broadcasta on Fridays, 10 pm ET from the TruthWorks Network Studios. All programs are archived for post-broadcast listening.

Like and Subscribe to The ALFO Show on Facebook

Follow ALFO on Twitter: @alfo8 #JustDamn
Email: alfo@truthworksnetwork.com

See on Scoop.itTruthWorks Network News – The Black Voice Collaborative

The Supreme Court Is Poised To Cripple The Federal Ban On Housing Discrimination

Racial discrimination has become more and more subtle. And this Supreme Court case will test a crucial housing discrimination standard that seeks to root out this discrimination.

Source: thinkprogress.org

A five-justice majority on the Roberts Court is not expected to look as kindly on “disparate impact,” given its eagerness to review an issue on which all lower courts have agreed, and its hostility to the Voting Rights Act, affirmative action, and other means for rooting out racial discrimination.

See on Scoop.itOCG Info & News Board •● ☥●• The Third Eye Parenthesis

UPENDING WHITE SUPREMACY in the Spirit of Sankofa l Our Common Ground Opens 2015 Broadcast Seaso

In the Spirit of Sankofa: Upending White Supremacy” 
Saturday, January 17, 2014 10 pm ET LIVE

Guest:  Ruby N. Sales, Liberation Leader and Activist

Live Streaming Here: http://bit.ly/1sGKkmQ
Listen or Call IN Line : (347) 838-9852

UPENDING WHITE SUPREMACY in the Spirit of Sankofa. We open our 2015 Broadcast Season reviewing the notion of how we make real#BlackLivesMatters. Our Guest, Liberation Expositor and Leader Rev. Dr. Ruby N. Sales to discuss upending white supremacy as a movement. " 
Saturday, January 17, 2014 10 pm ET LIVE

Live Streaming Here: http://bit.ly/1sGKkmQ
Listen or Call IN Line : (347) 838-9852

#TalkthatMatters

#Blacklivesmatter

We hope you join us on Saturday night. Please share our program notice. OUR COMMON GROUND where activists come to meet with comrades. You are invited to join us in our 2015 Broadcast Opening, "In the Spirit of Sankofa: Upending White Supremacy"https://www.facebook.com/events/1376359312672038/?ref=22

See on Scoop.itOUR COMMON GROUND with Janice Graham ☥ Coming Up