The Unequal Treatment Of Minorities In The Criminal .

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FE AT U R E S SE N I O RLAW Y E R SSE C T I O NUnequal Justice Under the Law—Racial Inequities in the Justice Systemby Clarence M. Dunnaville, Jr.The unequal treatmentof minorities in the criminal justicesystem is one of the mostserious problems facing America inthe new millennium.The statistical evidence that this is true is overwhelming, andmany Americans, black and white, firmly accept that this is so.In early 1999, nearly 2,000 citizens were asked to express theiropinions about the courts in a survey conducted by the NationalCenter For State Courts.1 The survey revealed that only 23% ofthe people surveyed have a “great deal” of trust in the courts oftheir communities and an additional 52% have only “some” trust.Further, the survey revealed dissatisfaction with our judicialsystem—in access to justice, timeliness, independence, accountability, equality, and fairness. The level of African Americandissatisfaction was higher in every category. Sixty-eight percentof African Americans felt they were treated worse than whitepeople and almost 45% of the white people surveyed agreedwith this perception. In short, the majority of African Americanssurveyed, and nearly half of the white people surveyed by theNational Center for State Courts believed the justice system isracially skewed.A recent report by the Leadership Conference on Civil Rightsentitled, “Justice on Trial: Racial Disparities in the AmericanCriminal Justice System,”2 shows that racial disparities may haveincreased rather than subsided over the past few years. The reportconcludes that, while in the past half century the United States hasmade significant overall progress toward the objective of ensuring equal treatment under the law for all citizens, in the criticalarea of criminal justice, racial inequality appears to be growing,not receding, and our criminal laws, while facially neutral, areenforced in a manner that is massively and pervasively biased.This report reveals serious findings of systematic unequal treatment of African American and Hispanic Americans and other20December 2000minorities, as compared to their similarly situated white counterparts within the criminal justice system. Disparate treatment ofminorities begins at the very first stage of the criminal justicesystem: the investigation of suspected criminal activity by lawenforcement officials. Innocent minority citizens are detained bythe police on the street and in their cars far more than whites.Those stops involve inconvenience, humiliation and a loss ofprivacy that is heightened when the rationale for the policeaction is the color of a motorist’s skin or a pedestrian’s accent.Furthermore, during some investigations and interrogations, thepolice employ tactics that shock the conscience.3 The disparateimplementation of justice continues through the trial, jury deliberation and sentencing. According to the report:“Unequal treatment of minorities characterizesevery stage of the process. Black and HispanicAmericans, and other minority groups as well,are victimized by disproportionate targetingand unfair treatment by police and otherfrontline law enforcement officials; by raciallyskewed charging and plea bargaining decisions of prosecutors; by discriminatory sentencing practices; and by failure of judges,elected officials and other criminal justice policy makers to redress the inequities thatbecome more glaring every day.”4The manifestation of a criminal justice system that de facto distributes separate, unequal standards of justice for whites andAfrican Americans and other minorities has created a mushrooming prison population that is overwhelmingly black and Hispanic.Three out of every ten African American males born in the

SUnited States will serve time in prison. Nationally, 1.4 millionblack men have lost the right to vote as a result of felony convictions; approximately two million Americans—two-thirds ofthem black or Hispanic—are in prison or a jail cell.5The exploding prison population is leading to the decay of communities that will have given up an entire generation of youngmen to prison. Furthermore, it is leading to a widely-held beliefamong black and Hispanic Americans that the criminal justicesystem is deserving neither of trust nor support. Unfortunately,many politicians and policy makers have the perception thatlawlessness is a “colored” problem, and that the disproportionatetreatment of blacks and Hispanics within the criminal justice system is a rational response to a statistical imperative.Disparate treatment within the criminal justice system is notrational. It is well established that the majority of crimes are notcommitted by minorities, and most minorities are not criminals—indeed, less than 10 percent of all black Americans are evenarrested in a given year. Yet the unequal targeting and treatmentof minorities at every stage of the criminal justice process—fromarrest to sentencing—reinforces the perception that drives theinequality in the first place, with the unfairness at every successive stage of the process compounding the effects of earlierinjustices. The result is a vicious cycle that has evolved into aself-fulfilling prophecy. More minority arrests and convictionsperpetuate the belief that minorities commit more crimes, whichin turn leads to racial profiling and more minority arrests.6The Leadership Conference on Civil Rights report is corroboratedby a number of other reliable sources. In a 1999 study by theAmerican Bar Association, 50% of the total persons polled statedthey thought law enforcement treats minorities different fromwhite people, and 47% thought the courts do not treat all racialand ethnic groups the same.7 These recent opinion surveys showbeyond peradventure that public trust in our judicial system isbeing undermined by racial inequities.Justice Sandra Day O’Connor, in a May 1999 statement reported inThe Washington Post, commented on the ABA survey that mostblacks believe they receive worse treatment in the courts than doother people. Justice O’Connor noted that an ABA survey alsofound that a significant percentage of whites also believe thatAfrican Americans are not equally treated in the justice system.“Clearly this is a problem that has to be addressed,” JusticeO’Connor said. “Concrete action must be taken” to eraseracial bias.8E N I O RLAW Y E R SSE C T I O N FE AT U R E Simprovements in family and juvenile courts and better jury conditions and selection.The racial disparities that. . . a recent Justiceexist in the criminal justiceDepartment reportsystem deeply affect juvefound that 80% of theniles and cause AfricanAmerican and other minordefendants sentencedity youth to be over-repreto death in the federalsented at every stage of thecourts were minorities,juvenile justice system. Theand the largest numberLeadership ConferenceReport correctly points outof death cases wasthat racially skewed juvefrom Virginia.nile justice outcomes havedire implications, becausethe whole point of the juvenile justice system is to head off adultcriminality. The report observes that the segregation of childrenfrom adult prisoners is an important aspect of the juvenile justicesystem and that placing more black and Hispanic teenagers inadult prisons where they will come into contact with careercriminals serves to incubate another generation of black andHispanic criminals.9As Justice O’Connor urged, improvements in family and juvenilecourts is essential. Racially disparate treatment of juveniles withinthe justice system necessitates that legislators and members ofthe legal profession make drastic improvements of the juvenilejustice system and eliminate racial inequities on a priority basis.We cannot expect that young people who are treated unfairlyand disparately solely because of their race or ethnicity will havea respect for the judicial system.Statistics on racial disparities in the Virginia Criminal JusticeSystem appear to be even greater than in her sister states. TheRichmond Times-Dispatch reported on June 8, 2000, that blackmales in Virginia were imprisoned for drug offenses in 1996 at arate 21 times higher than that for white males and at a rate 13times higher than white males nationally. The Richmond TimesDispatch reported on September 13, 2000, that a recent JusticeDepartment report found that 80% of the defendants sentencedto death in the federal courts were minorities, and the largestnumber of death cases was from Virginia.Equally distressing is the fact that the Court of Appeals for theFourth Circuit is the only circuit within the nation that does notinclude a single African American judge. Although PresidentA recent report by the Leadership Conference on Civil Rights . . . shows that racialdisparities may have increased rather than subsided over the past few years.Justice O’Connor also appealed for better legal representationfor minorities, poor people and others who flounder in thejustice system. This is critical and must be given the highestpriority in Virginia.Clinton has nominated several African Americans, includingRoger Gregory of Richmond, the Chief Judge has repeatedlystated he does not need any more judges, although there arefive vacancies.In addition to emphasizing a need for racial equality in ourjustice system and better legal representation, she also called forIn April of this year the Virginia Advisory Committee to the UnitedStates Commission on Civil Rights issued its report entitled,Virginia Lawyer21

FE AT U R E S SE N I O RLAW Y E R SSE C T I O NUnequal Justice: African Americans in the Virginia JusticeSystem.10 The report states that during two days of fact findingmeetings and community comment sessions, the committee heardstatements from civil rights activists, concerned citizens, law professors, students, local law enforcement and elected officials andrepresentatives of Virginia criminal justice agencies. Charging thatthe administration of justice in Virginia is affected by racial“Is it really important for the publicto trust the justice system? . . .”— John A. C. Keithdiscrimination, critics of the criminal justice system attending thehearing gave testimony of racial bias in the administration ofjustice in the Commonwealth, and pointed to the reams of statistics reflecting the disproportionate concentration of AfricanAmericans in Virginia prisons alleged to be the result of policeand prosecutors aggressive and unequal pursuance of blacks.The Civil Rights Leadership Conference report discussed statesthat black adult and juvenile males are over-represented in thecriminal justice system, and that black women are imprisoned ata rate seven times greater than white women. The report indicatesthere has been an increase in their incarceration rate in excessof 400% in recent years. Further, three-fourths of the women,according to the report, were mothers, and two-thirds had childrenunder 18. These alarming statistics must be of grave concern tothe bar. The Virginia Advisory Committee to the United StatesCommission on Civil Rights does not focus on the plight ofAfrican American women in the Virginia Criminal Justice System.However, this is also a subject that needs prompt and urgentattention, especially in view of shocking reported abuses ofinmates at some of our correctional facilities.11Among the concerns addressed by the Virginia AdvisoryCommittee were racial profiling, extremely low fees paid tocourt-appointed attorneys, and restoration of civil rights to exfelons. The report cites 1997 statistics of the state police whichshowed that African Americans constituted 51% of arrests for themost serious felonies and 40% of all other arrests althoughAfrican Americans are only approximately 20% of Virginia’s population. Moreover, African Americans were arrested for 70% ofall murder charges and nearly 75% of all robbery charges.12The Virginia Advisory Committee found a serious breach oftrust between African Americans and the justice system. Thereport stated:The promise of equal protection under thelaw dims gradually from sight as the cumulative effect of police strategies in connectionwith the war on drugs, the zeal of electedprosecutors (Commonwealth Attorneys) andlifetime voting rights deprivation weighs heavily on African-American aspirations . . . Thedifficulties involved in resolving this problemrequires the utmost dedication and work.1322December 2000It is clear that there is ample evidence that our Virginia criminaljustice system needs to be seriously and promptly examined,and changes need to be made to alleviate racial inequities. We,the members of the bar, have a responsibility to begin theprocess of dealing with this crisis on a priority basis. Article I,Section 15, of the Virginia Constitution states in relevant part thatno free government, nor the blessings of liberty, can be reservedfor any people, but by a firm adherence to justice, . . . and bythe recognition by all citizens that they have duties as well asrights, and that such rights cannot be enjoyed, save in a societywhere law is respected and due process is observed.14We, as lawyers, may be considered as the fiduciaries of ourjustice system. As fiduciaries, we must fulfill our responsibilitiesto the public, and we must, as good stewards, seek to initiatechanges in the system needed to ensure fairness and the appearance of fairness to all members of our diverse society.Former Virginia State Bar President John A. C. Keith, in theJune/July 1999 edition of the Virginia Lawyer,15 asked andanswered the following critical question: “Is it really importantfor the public to trust the justice system? Of course, it is important and worth the trouble, especially to those who are activelyengaged in the legal system. We have the responsibility to befaithful stewards of this critical element of our democratic structure.”Mr. Keith reported that in May 1999, he attended the NationalConference on Public Trust and Confidence in the Justice Systemsponsored by the Conference of State Court Administrators, theConference of Chief Justices, the ABA, the League of WomenVoters and the National Center for State Courts. One of thecritical areas addressed at the conference was the hypothesisthat “our system still does not treat all people equally, regardlessof race, ethnicity or gender.”Mr. Keith relates that “the organizers of the conference bombarded[the conferees] with examples and statistics that highlightednumerous areas where our system of justice needs fixing.”In his article in the Virginia Lawyer, he said, “I am convincedthere are some real, basic structural problems with our system,and that fixing, or at least addressing, these problems is the onlysure way to boost the public’s confidence. . . . We must first listen carefully to the public and then begin or continue the incremental process of change.”Mr. Keith further stated:“Before solutions can be figured out, theproblems have to be identified. That is prettybasic, but when it comes to identifying thisset of problems, people fall into the camps.Those who think the system is not broken,but just misunderstood, and those who thinkthe system needs fundamental change . . . . Iam persuaded we need to keep a very openmind to the possibility that our justice systemcould be greatly improved by some radicalchanges.16

SI believe the entire membership of the Virginia State Bar shouldbe open to the possibility that our justice system needs fundamental change, and be willing, on a priority basis, to examineand consider what changes are required. I believe this is criticalin light of the alarming statistics.In his recently published book, The Debt: What America Owes toBlacks, Randall Robinson says, in a chapter entitled, “The Costof Ignoring the Race Problem in America:”“Solving these problems, the first thing is tosee them. That is the hard part. Mustering thewill to solve them is difficult but less so. Leastdifficult is the business of designing themechanics of solutions. All of us look. Few ofus see or want to see, trained lovingly as weare in the more genteel, commonplace, everyday bigotries. The blindness is pretty muchuniversal. We’ve all been acclimated to staticexpectation and some level of socially acceptable prejudice.”17It is an uncomfortable task, for as Randall Robinson states inThe Debt, few of us see the problem. Many think the systemworks fine; however, in the words of Mr. Keith, “We must listencarefully to the public and then begin or continue the incremental process of change.”18The organized bar within the Commonwealth must be in theforefront of recommending changes needed to make our criminal justice system fair and impartial, and to make the systemappear to be fair to all of the citizens of Virginia.The cost of ignoring the problem is great. Unequal treatment ofminorities in the criminal justice system undermines the rule oflaw. It is up to all of us as lawyers to be a part of the solutionand not to be a part of the problem.Law schools, as makers of our future generation of lawyers, havea special responsibility for developing “citizen lawyers.” Lawstudents are the future stewards of the principles stated in ourE N I O RLAW Y E R SSE C T I O N FE AT U R E Sour social structure. They should also be taught about the historical and current racial and gender discrimination and inequitiesof the law. This should be required in all law schools. Althoughmany law professors in law schools within the Commonwealthare mindful of these responsibilities and are already addressingthem, much more attention needs to be given to these concernsin law schools.Professor Blake Morant of the Washington and Lee UniversitySchool of Law suggests that law schools develop courses specifically on responsibilities of the legal profession and professionalism.Professor Johnathan Stubbs of the University of Richmond T.C.Williams School of Law, in his course on professionalism, addresses the issues of bias in the profession, race, ethnicity, gender andsexual orientation. Many other law professors—on an individualbasis—are addressing the issue of professionalism. William G.Broaddus, president of the Richmond Bar Association, in anewsletter19 related that The College of William and Mary Schoolof Law has designed a seminar to focus on developing “citizenlawyers.” The seminar prods students to broaden the perspectiveof their opportunities and responsibilities to the profession.I suggest that, in seeking to make our system fair to all, weshould re-examine whether our prosecutors should continue tofunction solely as prosecutors, or be required to become searchersof truth. In Florida, for example, a prosecutor has the responsibility of a minister of justice and not simply that of an advocate.20We should also re-examine whether our trial practices and jurysystem need improvement, and many of our archaic practicesand procedures including Rule 1.1 of the Supreme Court Rulesthat precludes any action in a case more than 21 days after judgment, should be eliminated. We must substantially increase theattorneys’ fees paid for indigent defendants to near market ratesto insure competent counsel for all defendants.Racism cannot be allowed to exist within our system of justice;however, it is extremely difficult to get to the source of thisproblem. The police, prosecutors, courts, juries, penal administrators, legislators, and members of the executive branches ofboth federal and state government are all involved in the criminal justice system and each play a key role.Racism cannot be allowed to exist within our system of justice; however, it isextremely difficult to get to the source of this problem. The police, prosecutors,courts, juries, penal administrators, legislators, and members of the executive branchesof both federal and state government are all involved in the criminal justice systemand each play a key role.constitutions. They must ensure in their generation that law isrespected, that the system is fair, and that due process is receivedby all segments of our diverse socie

opinions about the courts in a survey conducted by the National . criminal justice system, and that black women are imprisoned at a rate seven times greater than white women. The report indicates there has been an increase in their incarceration rate in excess of 400% in recent years. Further, three-fourths of the women, according to the report, were mothers, and two-thirds had children .

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