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The Devastating Impact of the Justice System on the Status of African-American Males: an Overview Perspective</p>
Floyd D. Weatherspoon
Permission pending: Floyd D. Weatherspoon, The Devastating Impact of the Justice System on the Status of African-american Males: an Overview Perspective, 23 Capital University Law Review 23 (1994) (214 Footnotes Omitted)
To assert that African-American males are adversely or disproportionately impacted by the American justice system is to understate the devastating effect that the justice system is having on the status of African-American males. Indeed, at each step of the criminal justice system, from arrest through incarceration and execution, black males are penalized without conscience, remorse, or constitutional protection. Moreover, when African-American males seek legal redress to vindicate their legal rights within the civil justice system, they also face unyielding obstacles of bias in pursuing such claims.
Statistical data unequivocally supports the negative impact of the criminal justice system and other institutional systems on African-American males. The data, however, has been cited so frequently that it is no longer startling to our society. This readily available information has been dehumanized and trivialized to the point that it is considered just a fact of life in urban America. Some researchers have characterized African-American males as “obsolete and dangerous,” “an endangered species,” and “broken lives.” The most frequently cited data on African-American males includes:
One in four black men in the United States in the age group 20-29 is under the control of the criminal justice system--in prison or jail, on probation or parole.
African-American males presently represent 48% of all individuals arrested for drug violations.
African-American males represent almost 40% of individuals on death row.
More African-American males are incarcerated than enrolled in college.
On any given day, African-American males are at least 8 times more likely to be in prison than white males.
The devastating impact of the justice system on the status of African-American males also directly or indirectly affects other institutional systems and processes. African-American males typically rank at the bottom of every study or statistical report regarding education, health, and employment. For example:
The death rate from homicide . . . for black males ages 25-34 is almost 5 times as high as for black females (108 vs. 21.9), 7.4 times as high as for white males (108 vs. 13.6), and 24 times as high as . . . for white females (108 vs. 4.4).
African-American males have a lower life expectancy than all other groups.
African-American males are disproportionately suspended from school.
African-American males have the highest dropout rate in elementary and secondary school, as well as in college, if they go at all.
African-American males have the highest level of unemployment.
Even though it is quite evident that there is a correlation between the plight of African-American males and their treatment by our justice system, until very recently, there has been very little legal discourse, scholarship, or any concerted response from the legal community to address these issues. Various state and local organizations, legislatures, and the federal government, however, have recently made a concerted effort to examine the deplorable status of African-American males.
The Rodney King incident forced most Americans to admit that African-American males are treated differently by the law enforcement community. Nevertheless, this level of awareness has long since evaporated from the minds of most white Americans. Most Americans have never heard of, nor remember the Malice Green incident. But for African-Americans, especially black males, the realities of the Rodney King and Malice Green incidents are a part of their life's fabric to be reckoned with on a daily basis.
The purpose of this article is to provide an overview of the plight of African-American males in this country and to identify how their status is directly or indirectly impacted by our justice system. This article will not attempt to provide a comprehensive analysis of all the issues identified, nor to provide remedies. In this regard, it is hoped that this overview will engender further research and scholarship into possible remedies by others in their respective fields on the various issues raised.
The first part of the article identifies stereotypical biases that exist concerning African-American males and shows how our justice system sanctions, perpetuates, and in some cases creates these stereotypes. The second part of the article focuses on the impact of the criminal justice system on African-American males. Finally, areas where African-American males are treated less favorably by other institutional systems are identified.
I. STEREOTYPICAL BIASES AGAINST AFRICAN-AMERICAN MALES
Generally, stereotypical attitudes and feelings from white Americans and foreigners are that black males are overly aggressive, violent, involved in drugs, dishonest, shiftless and lazy, desirous of white women, lacking in work ethics, and are often rapists and criminals. Many of these stereotypical biases are characterized on prime time television and dramatized on the evening news and press. Black males are projected by the media as being violent, shiftless, or robbers. Unfortunately these stereotypes are hardly recent in origin.
More recently, other stereotypical attitudes about black males have revealed that white Americans believe that black males are less intelligent than other groups, including black females, and that black males are only preoccupied with sex and sports. The bottom line is that white Americans are generally intimidated, fearful, and uncomfortable with black males, but still feel superior to black males. The Supreme Court condoned and perpetuated many of the present day stereotypical biases concerning African-American males in the landmark decision Dred Scott v. Sanford. In Dred Scott, the Court described Scott, a black male slave, and freed slaves as “beings of an inferior order” who were not intended to be protected by the Declaration of Independence and the Constitution. Today, the justice system regrettably reflects these same sentiments.
II. CRIMINAL JUSTICE SYSTEM
A. Selective Enforcement
Most Americans, black and white, would agree there is an urgent need to “get tough on crime” in our country, particularly the elimination of the illegal sale, use, and distribution of illegal drugs. The federal government has in fact declared a “war on drugs” and has appointed a drug czar to implement such policies. The “war on drugs,” however, has resulted in a disproportionate number of African-American males being arrested, sentenced, and incarcerated. The mere fact that African-American males are being incarcerated for violating drug laws is not the issue. The concern is that African-American communities are the primary targets of drug enforcement sweeps, and that African-American males are the primary individuals targeted for arrest--normally receiving harsher sentencing for the same or similar offenses committed by whites. In fact, the “war on drugs” has almost become synonymous with policing the African-American community and black males. White suburbs are less likely to be targeted even though the National Institute for Drug Abuse reported in 1992 that, although minorities represented 38% of all individuals arrested for a drug violation, they represented only 17% of individuals using illicit drugs. African-American males are also targets of invidious and systematic discrimination from local law enforcement authorities when they travel in predominately white communities.
Cities have engaged in a practice of stopping and ticketing blacks who enter the city, particularly black males. In many cases, the immutable characteristic of being a black male is considered a sufficient basis for law enforcement officers to have probable cause to stop African-American male motorists for interrogation. This is not to imply that drug laws should not be enforced in the African-American communities; however, African-American communities should not be disproportionately targeted for enforcement. African-American males should not be more severely punished for violating the law than whites.
For example, in 1989, Todd Grier, an African-American male, alleged that he and his two-year old daughter were in his car attempting to start it with the aid of two white neighbors when they were approached by police. Grier got out of the car and was searched at gun point and arrested. He was subsequently released after having been mistakenly identified as an alleged bank robber. Grier brought a civil rights action against the city, alleging he was detained and threatened because he was a black person. The court, however, at the defendant's request, dismissed most of Grier's allegations. The court permitted Grier to further amend his complaint to clarify the issues.
To illustrate how African-Americans are harassed, ABC's television program 20/20 placed staff employees in two expensive cars and had them park in front of a restaurant in a predominantly white neighborhood at 3:30 a.m. The white male employees were placed in one car and the black male employees were placed in the other car. In moments, police approached the car with the black males and warned them that “people would say they look suspicious.” However, the white males were passed by more than 15 times by police officers without being approached or questioned. This scenario is reminiscent of Justice Marshall's experience as he waited for a train in a small Mississippi town in the 1940s. Fifty years later, little has changed. African-American males were, and remain, singled out for harassment.
In response to a question whether he believed black men are unduly harassed by police officers, Los Angeles Police Department Chief Willie Williams stated: “I think that African-American males and other minority males are more prone to be stopped for small or frivolous reasons than non-African-American males in not just big cities like Los Angeles and Philadelphia, but small, suburban and rural and country towns.” Whether you are Al Joyner, Olympic gold medalist; Blair Underwood, a Hollywood actor; a construction worker; or a law professor at a prestigious law school; if you are an African-American male, this may be “probable cause” for the police to stop and interrogate you.
The Constitution guarantees the right to travel without governmental interference. Although this right is enjoyed without thought by most Americans, African-American males are routinely stopped and singled out for interrogation, detainment, arrest, searches, and prosecution by the Drug Enforcement Agency's (“DEA”) practice of stopping African-American male passengers at airports and bus stations to determine whether they are transporting drugs. The DEA helped develop what are known as “drug courier profiles.” Drug courier profiles vary between state and federal enforcement agencies and by cities. In United States v. Elmore, a DEA agent provided the following characteristics of a drug courier profile:
The seven primary characteristics are: (1) arrival from or departure to an identified source city; (2) carrying little or no luggage, or large quantities of empty suitcases; (3) unusual itinerary, such as rapid turnaround time for a very lengthy airplane trip; (4) use of an alias; (5) carrying unusually large amounts of currency in the many thousands of dollars, usually on their person, in briefcases or bags; (6) purchasing airline tickets with a large amount of small denomination currency; and (7) unusual nervousness beyond that ordinarily exhibited by passengers. The secondary characteristics are: (1) the almost exclusive use of public transportation, particularly taxicabs, in departing from the airport; (2) immediately making a telephone call after deplaning; (3) leaving a false or fictitious call-back telephone number with the airline being utilized; and (4) excessively frequent travel to source or distribution cities.
These characteristics appear to be race neutral. Had race been listed it would have raised constitutional concerns, i.e., a violation of the Equal Protection Clause of the Constitution. Courts have consistently held that “[t]he discriminatory investigation of citizens on the basis of race certainly violates [the Constitution], engenders distrust of law enforcement officials, and perpetuates the perception among minority citizens that they are second-class citizens, and are likely to be suspected of wrongdoing solely because of their race or ancestry.”
Like many other law enforcement policies and practices that appear to be neutral on their face, “drug courier profiles” disproportionately impact the African-American community, particularly African-American males. The enforcement of the “drug courier profile” procedure by the government has resulted in African-American males being disproportionately detained in violation of their constitutional rights.
In Jones, the court expressed concern regarding substantiated evidence that officers had targeted investigations of minority passengers arriving at the Nashville airport, particularly African-American and Hispanic males. The court stated, “[i]t is clear from the testimony that [the] officers approached Mr. and Mrs. Carter because of their race . . . . ” The court also indicated that it was troubled by the fact that the “sole basis for [[[the officer's] investigation of Mr. Villarce and his companions was the knowledge that two Hispanic men were traveling in the company of a white woman . . . . ” Jones also presented evidence of other incidents where other minority males were stopped and interrogated, including a producer with the CBS news show “60 Minutes.” Even with this evidence, the court nevertheless refused to grant Jones's request for injunctive relief against the DEA. The court did require the government, however, to return Mr. Jones's property which had been seized.
The scenario in the Jones case has become a regular mode of operation for local and federal law enforcement officials. This practice of stopping and searching African-American males is also engaged in at bus terminals. A review of these practices by Congress is warranted to ensure that the constitutional rights of African-American males are protected.
B. Incarceration of African-American Males
The numbers of African-Americans under the jurisdiction of the criminal justice system is almost too startling to state. The U.S. Justice Department reported in 1990 that more than 1.5 million African-Americans were then either in jail or prison, on probation, or on parole. Other reports which focus specifically on urban cities find that black males fare even worse. For example, in Baltimore, Maryland, 56% of black males between 18 and 35 are under the supervision of the criminal justice system. Ironically, black males in the United States are incarcerated at a rate four times that of black males in South Africa: 3,109 per 100,000, compared to 729 per 100,000. The high rate of incarceration of African-American males is having a devastating impact on African-American communities and families.
The high incarceration rate of African-American males is a direct result of factors, i.e., sentencing practices, selective enforcement, judicial biases, etc. discussed within this article. Unfortunately, many lawyers who represent African-American males in criminal cases, and judges who hear these cases, perceive African-American males, particularly black youth, as dangerous and not worthy of rehabilitation. Thus, jail is where they should be--away from society. If the trend continues, half of all black men will have criminal records by the year 2000. Race plays a major role in how justice is administered in most state justice systems. A number of states have finally taken initiatives to study where and how racism and ethnic bias impact the justice system. For example, in 1989, the Chief Justice of the Florida Supreme Court issued an order creating the Racial and Ethnic Bias Commission to determine whether race or ethnicity was a consideration in the administration of justice in Florida. The Commission determined, in part, that minorities are underrepresented as judges and attorneys, minorities are subjected to police brutality, and minority juveniles are more harshly treated than non-minorities. The Commission also found that the typical criminal court session, where the defendant is a black male, involves predominantly white juries, judges, prosecutors, and defense counsel.
The Florida Commission also discovered what has appeared evident to activists for decades. Specifically, racial disparities exist in the enforcement of laws and regulations which are disproportionately affecting young African-American males. A number of states are establishing similar commissions to study the impact of racial bias on the justice system. As a result of the 1992 riots in Los Angeles, the American Bar Association organized a task force on minorities in the justice system “to examine the prevalence of racial and ethnic bias in the American justice system, to ascertain whether concerns about the seriousness of racial and ethnic bias in the justice system are justified, and if so, to propose an ABA agenda for future action.”
C. Racial Disparities in Sentencing
African-American males are perpetually being incarcerated at an alarming rate, particularly young African-American males. As stated earlier, one study has determined that 1 in 4 African-American males between the ages of 20-29 is a participant in the criminal justice system, e.g., prison, jail, on probation or parole, whereas for white males in the same age group, the ratio is 1 in 16. Ironically, African-American males make up only 6% of the United States' population, yet make up approximately 44% of jail inmates. Moreover, the Federal Government reports that every young African-American male has a 50% chance of being incarcerated during his lifetime. Are these disparities attributable to African-American males committing more crimes, thus justifying incarceration at a higher rate than white males? Or is there a deeper explanation? There are a number of factors which impact the rate of incarceration of African-American males. Those factors admittedly include the type, kind, and number of criminal activities African-American males commit. However, racial disparities in sentencing practices and policies of the criminal justice system also contribute to the disproportionate number of African-American males in jail.
A number of studies suggest that African-American defendants are more likely to be incarcerated and receive more severe penalties when the victims and the judge are white. Even more shocking is a study conducted by the Federal Judicial Center which reported that, in 1990, blacks received an average of 49% higher sentences than whites in cases involving drug trafficking with possession of a firearm. In 1984, the average sentence for blacks was 28% higher than the average sentence for whites. Similarly, the median sentences for African-American males in state prisons are longer than for white prisoners who also committed violent and drug-related crimes.
In 1984, Congress enacted the Sentencing Reform Act of 1984, which established the United States Sentencing Commission (“Sentencing Commission”). The Sentencing Commission was delegated with authority to promulgate sentencing guidelines for federal courts. In 1987, the Sentencing Commission promulgated the Federal Sentencing Guidelines (“Sentencing Guidelines”), in part, to eliminate racial disparity in sentencing. To accomplish this goal, most of the judges' discretion in sentencing was removed. In its place, the guidelines established minimum sentences for certain offenses.
Approximately five years later, the U.S. General Accounting Office (“GAO”) issued a report indicating that due to “data limitation . . . [it is] impossible to know how effective the Federal Sentencing Guidelines . . . have been in reducing racial and other disparities in the sentences given to similar offenders for similar crimes.” The GAO report, however, indicates that in some areas of the Sentencing Guidelines there are still disparities in sentencing between blacks and whites for the same offense. Further, the GAO report suggests that the way prosecutors plea-bargain with defendants may adversely impact blacks and interfere with the Sentencing Commission's mission of eliminating disparity based on race.
In 1993, the Justice Department released a report which examined whether there were racial and ethnic disparities imposed on federal offenders before and after the guidelines became fully effective. The study found in part that:
During 1986-1988, before full implementation of sentencing guidelines, white, black and Hispanic offenders received similar sentences, on average, in [f]ederal district courts.
Among [f]ederal offenders sentenced under guidelines from January 20, 1989 to June 30, 1990, there were substantial aggregate differences in sentences imposed on white, black, and Hispanic offenders.
During this period, 85% of Hispanic offenders and 78% of black offenders were sentenced to imprisonment, compared with 72% of white offenders.
On average, black offenders sentenced to prison during this period had imposed sentences that were 41% longer than for whites (21 months longer).
A number of states are also researching whether there are racial disparities in state court sentencing. For example, the Minnesota Sentencing Guideline Commission reported that during the 1980's, the number of blacks arrested for narcotics rose by 500%, while the arrest rate for whites for the same offenses rose 30%. This disparity in arrest rates between blacks and whites correlates to a disparity between sentences given to blacks and whites by the courts. The Minnesota Commission also reported the following number of offenders sentenced for felony convictions: “Between 1981 and 1991, the number of cases increased 42% for whites; 53% for American Indians; 204% for African Americans; and 388% for other races. Over half of the increase for African-Americans has occurred since 1987.”
There have been a number of constitutional challenges in court to various provisions of the Sentencing Guidelines, particularly the provision which requires a much stiffer penalty for crack cocaine versus powder cocaine. More blacks are charged with possession of crack cocaine than powder cocaine. This leads to blacks being incarcerated more often and receiving greater penalties. In United States v. Majied, a federal district court deviated from the Sentencing Guidelines because young African-American males were disproportionately impacted by the requirement that they receive a harsher sentence for distribution and possession of crack cocaine. On appeal, the Eighth Circuit vacated the lower court's decision to impose a lesser sentence than was mandated by the Sentencing Guidelines. Even though the courts recognize that blacks are disproportionately impacted by the Sentencing Guidelines, they nevertheless have refused to find any provision of the statute unconstitutional.
D. Racial Disparities in Prosecutorial Decisions
The Sentencing Guidelines were promulgated primarily to eliminate discriminatory practices in sentencing individuals after trial. However, before there is a criminal trial and ultimately sentencing, individuals must first be charged with a crime. This responsibility rests with state and federal prosecutors. The Sentencing Guidelines have in effect moved the capacity for discrimination from judges to prosecutors. There are concerns that prosecutorial discretion and plea bargaining practices might “reintroduce unwarranted sentencing disparities into the criminal justice system.” These concerns, as will be shown, are amply justified.
The prosecutor has broad discretion to determine what crime the defendant will be charged with, if charged at all. Of course, a lesser charge normally results in a lesser penalty--i.e., a lesser jail term. The prosecutor also has unbridled authority to plea bargain a case allowing the defendant(s) to admit to a lesser offense and avoid trial in lieu of a more severe charge with a trial. How this presentencing process impacts African-Americans has been the topic of a number of studies.
One leading statistical study conducted to determine whether the race of the victim was a factor prosecutors considered when determining whether to proceed with the severest charge available under the law revealed that when the victim was white, prosecutors were more likely to seek full prosecution. Indeed, in high profile cases where the defendant is black, the prosecutor is more likely to pursue the greatest penalty; this often involves the death penalty in homicide cases where the victim is white. A study of homicide defendants conducted in Florida further supports the thesis that prosecutorial decisions are often impacted by racial bias. The courts' acceptance of such discriminatory conduct on the part of prosecutors sanctions the use of disparate treatment at other stages of the criminal justice system. It also supports the argument that the justice system values the lives of whites more than the lives of African-American males. Such an unconscionable decision by the prosecutors should violate the Equal Protection Clause if the prosecutors' decisions were racially motivated.
In another study investigating whether felony charges initiated against blacks, whites, and Hispanics are more or less likely to be rejected by prosecutors, the results indicated that disparity existed against blacks and Hispanics. Various other studies support this finding of a disparity between whites and blacks as to when charges are filed and pursued by prosecutors.
Aside from the issue of prosecutorial discretion, the racial makeup of the prosecutor's office may also impact how charges are pursued against African-American defendants. The typical prosecutor's office is predominately staffed by young white male attorneys. The power of prosecutorial discretion is wielded “almost exclusively [by] the hands of white males.” State prosecutors are elected officials. Thus, they have the continuous burden of illustrating to the public that they are “tough on crime” in order to get reelected. Prosecuting drug dealers in the African-American community gives prosecutors immediate news coverage. A similar scenario is found at the federal level. A lack of representation of African-Americans in the prosecutor's office gives the appearance of and likely leads to, a lack of sensitivity to the needs of the African-American community.
E. Law Enforcement and Police Brutality--The Rodney King Case
In the early hours of March 3, 1991, a black man in Los Angeles was severely beaten and brutalized by police officers. Furthermore, their conduct was videotaped and repeatedly viewed by the public on national television. Many Americans were pathetically mystified that such conduct occurred as if the videotape had captured South African policemen beating a black man in South Africa.
Many Americans still have not fully acknowledged that a vicious crime was committed or that Rodney King's civil rights were violated. The sentiment of many is that if King would have “just laid still” through the beating, his injuries would not have been as severe. For African-Americans, however, the Rodney King beating was not out of the ordinary, but reflects the general treatment that African-Americans, particularly males, have received from police departments. The only difference between the Rodney King incident and many other incidents of police brutality involving black males is that the officers' conduct was video taped and continuously aired on national television.
The City of Los Angeles, like other cities, has paid millions of dollars in damages for cases of police brutality against African-Americans. In Prince George's County, Maryland, a jury awarded $1.9 million against four policemen for violating the civil rights of a Ghanaian when he died as a result of “blunt force trauma” by the arresting officers. In 1980, an African-American male insurance executive, Arthur McDuffie, was beaten to death by white Miami police officers; the officers were later acquitted of any charges. In Columbus, Ohio, a white police officer was indicted on felonious assault charges for striking an African-American male in the mouth with a flashlight.
Before the Rodney King incident could be resolved by the court, the nation was again stunned by another violent act directed at an African-American male motorist, Malice Greene, by white police officers in Detroit. Unlike the King situation, the beating of Malice Green was not video taped. A black officer was at the scene but did not intervene, and the death of Malice Green was the end result. According to witnesses, Malice Green, a 35-year old African-American male was stopped, beaten with a heavy flashlight and kicked by two police officers, while at least five other officers watched. Green subsequently died of head injuries in the hospital. Officers stated that Green resisted arrest.
With the exception of Detroit, very little outcry has come from the African-American community, human rights organizations, or the nation as a whole. Generally, the African-American community appears to have retreated back to a passive position on the issue of police brutality. There is presently no national plan of action designed by African-American communities to formulate a cohesive response to police brutality.
F. Racial Bias in The Death Penalty
More than 2500 prisoners are on death row, of which approximately 40% are African-American. Since the death penalty was reinstated in 1976, of the 232 executed, 91 or 39.22% have been African-Americans. African-Americans make up approximately 12% of the general population. Therefore, they are disproportionately overrepresented on death row and subsequently executed.
Study after study has substantiated that race is a significant factor in the decision to sentence a defendant to die, especially if the defendant is black and the victim is white. Althea Simmons, Director of the Washington Bureau, National Association for the Advancement of Colored People, in testifying about the death penalty before members of Congress stated:
A 1981 study by Professor Rudelet of the University of Florida found that a “black on white homicide is 37.7 times more likely to get death.”
A 1983 study by Professor Bernard Bray, Talladega College, of capital murder cases in Alabama found that killers of whites are 10 times more likely to be tried for the death penalty and 8 times more likely to receive the death penalty than killers of blacks.
. . . .
In Illinois, killers of whites are 4 times more likely to be put to death than killers of blacks, according to the study of Gross and Mauro.
Even the Supreme Court, in striking down the death penalty in Georgia more than twenty years ago, stated that “[t]he death penalty is disproportionately imposed and carried out on the poor, the Negro and the members of unpopular groups.” In United States v. Wiley, the Court stated, “[t]here has been an enormous danger of injustice when a black man accused of raping a white woman is tried before a white jury. Of the 455 men executed for rape since 1930, 405 (89 percent) were black. In the vast majority of these cases the complainant was white.” States with death penalty statutes rewrote them after 1977 to eliminate arbitrariness in capital penalty sentencing. These attempted remedies failed to address the issue of racial discrimination. Death row statistics for African-American males are higher in some states than the national average.
The issue of racial disparity in death penalty sentencing was squarely before the Supreme Court in 1987, when Warren McCleskey, an African-American male, challenged his death sentence. In McCleskey v. Kemp, the Supreme Court was presented with a thorough study which reviewed more than 2,500 cases of homicides in Georgia for a six-year period. The report validated what most people already knew--that race was a major factor in deciding who received the death penalty. A summary of the report by the American Civil Liberties Union states:
Death was imposed in 34% of the white-victim cases but in only 14% of similarly aggravated black-victim cases.
The odds of receiving a death sentence in a white-victim case was 4.3 times greater than the odds of receiving a death sentence in a comparable black-victim case.
Nearly six of every 10 defendants who were sentenced to death for killing white victims would not have been sentenced to death had their victims been black.
Nearly 90% of those executed since 1977 were convicted of murdering whites, while in the same period, almost half of the homicide victims were black.
In the same period of time, all seven of the persons executed in Georgia were convicted of killing whites. Six of the seven executed were black.
Even though the Supreme Court did not dispute that the study was correct in finding race to be a factor in death sentences, the Court refused to grant McCleskey relief unless he could prove that he personally was a victim of intentional discrimination. The Supreme Court stated, “McCleskey's arguments are best presented to the legislative bodies.” Unfortunately, Congress has failed to adequately address the issue of racial disparity in death penalty sentencing. While Congress “grid locked,” McCleskey was executed in 1991 with no relief, other than the cold embrace of death. The race of the defendant and victim continue to be factors in death penalty cases.
In 1988, Congress passed the Anti-Drug Abuse Act which directed the GAO to “report to the Congress on whether or not any or all of the various [[[sentencing] procedures create a significant risk that the race of a defendant, or the race of a victim . . . influence the likelihood that defendants . . . will be sentenced to death.”
In response to Congress's directive, the GAO analyzed 28 studies to determine whether race was a factor in death sentencing. In summarizing their conclusions, the GAO made the following findings:
Our synthesis of the 28 studies shows a pattern of evidence indicating racial disparities in the charging, sentencing, and imposition of the death penalty after the Furman decision.
In 82 percent of the studies, race of victim was found to influence the likelihood of being charged with capital murder or receiving the death penalty, i.e., those who murdered whites were found to be more likely to be sentenced to death than those who murdered blacks.
. . . .
The race of victim influence was found at all stages of the criminal justice system process, although there were variations among studies as to whether there was a race of victim influence at specific stages. The evidence for the race of victim influence was stronger for the earlier stages of the justice process (e.g., prosecutorial decision to charge defendant with a capital offense, decision to proceed to trial rather than plea bargain) than in later stages.
. . . .
Finally, more than three-fourths of the studies that identified a race of defendant effect found that black defendants were more likely to receive the death penalty.
. . . .
To summarize, the synthesis supports a strong race of victim influence. The race of offender influence is not as clear cut and varies across a number of dimensions. Although there are limitations to the studies' methodologies, they are of sufficient quality to support the synthesis findings.
Both Houses of Congress have conducted hearings on the issue of racism in the death penalty to support passage of a federal law that would prohibit racially discriminatory capital sentencing. However, after much protracted testimony and statistical data which supported allegations that African-American males are systematically discriminated against in receiving the death penalty, Congress failed to pass legislation to provide relief. Thus, the death penalty remains the “first cousin to lynching” of African-American males.
G. Juvenile Justice System
African-American youth, particularly males, are clearly “at risk” of becoming perpetrators, as well as victims, in the juvenile justice system. For example, the “war on drugs” has caused African-American youth, particularly males, to be arrested, detained, and prosecuted.
The confinement of African-American male youth in state correction facilities parallels the staggering number of adult African-American males in prison. Similarly, African-American male youths in the juvenile justice system are treated less favorably than white male youths. A study on racial bias in the State of Florida juvenile justice system revealed that African-American youths “were more likely to be recommended for formal processing, referred to court, adjudicated delinquent, and given harsher disposition than comparable white offenders.”
When African-American male youths are released from confinement, they are labeled as “bad kids” and isolated when they return to school. Even more disheartening is the disproportionate number of African-American male youths who are transferred to adult courts, where the penalties are much more severe. Juveniles who are remanded to the adult criminal justice system are typically viewed by the juvenile justice system as not viable candidates for treatment or rehabilitation. Too often, African-American male youths are viewed in this manner.
III. CIVIL JUSTICE SYSTEM AND OTHER INSTITUTIONAL SYSTEMS
A. Employment Disparities and Discrimination
The rate of unemployment and underemployment for African-American males has continued to worsen during the past four decades with no indication that the trend will improve in the near future. A generation of African-American males are unemployed and unskilled; they will never have an opportunity to become productive citizens.
Disparities in wages, promotional opportunities, and other terms and conditions of employment between African-American and white males continue to widen. A number of factors directly or indirectly cause the disparities between black and white males. For example, more employment opportunities are given to white males who reside in the suburbs than black males who reside in deteriorating urban areas. Other factors include the lack of education and marketable skills and employment discrimination.
Congress has promulgated a number of federal laws and regulations to prohibit employment discrimination directed at African-American males and other groups who have been historically discriminated against. The effectiveness and impartial enforcement of these laws by the judicial system to ensure equal employment opportunities for African-American males is still at issue.
Discrimination directed at African-American males appears to occur at all stages of the employment process: recruitment and initial interviewing, testing, grooming requirements, and job requirements. Discrimination directed at African-American males appears to be widespread, especially at the initial hiring stage. The use of employment “testers” has been used to show that some employers have a pattern and practice of discriminating against minorities, particularly African-American males. For example, the Fair Employment Council of Greater Washington (“FEC”), and the Urban Institute used employment testing to reveal how employers systematically discriminated against qualified African-American male applicants. In both cases, African-American males were matched with white male applicants who had similar education, demeanor, and experience. Both groups of “testers” were trained to give the same responses to questions during the interview. In almost every contact with an employer by the “testers,” the white male “testers” were either given the job, treated more favorably, encouraged to apply for jobs with the employer, or offered the higher level job. Nevertheless, employers generally asserted that if they could find “one” who was qualified, an African-American male would be hired. These two employment audits illustrate that when employers have an opportunity to hire qualified African-American males, they still rely on stereotypical biases to deny them employment. Many of these biases are related to how our justice system treats African-American males as guilty until proven innocent. This same negative predisposition influences employment decisions. It is almost as though the justice system has sanctioned such conduct.
African-American males who reside in the inner-city are often victims of employment discrimination based upon stereotypical racial biases. There is also evidence that black males are treated adversely because of a combination of their race (black) and sex (male). The courts, however, have not readily embraced this legal theory.
African-American males are also targets for racial harassment on the job and typically receive more severe disciplinary actions than white males for the same or similar infractions. After the passage of Title VII of Civil Rights Act of 1964, the Supreme Court issued a number of favorable employment discrimination decisions where African-American males were either the plaintiff or directly benefited from the decision. The Court interpreted Title VII to prohibit employers from implementing employment policies and practices that, although neutral on their face, had a disparate impact on minorities, particularly African-American males. The Court also upheld affirmative action programs designed to ensure the employment and upward mobility of African-American males. Very early on, the Court developed a flexible model for establishing a prima facie case of employment discrimination.
As the Supreme Court became more conservative during the second half of the 1980s and the 1990s, the Court retreated from its posture of liberally interpreting Title VII in order to eradicate all vestiges of employment discrimination. Instead, the Court has restricted the interpretation of Title VII, and has thus made it more difficult for minorities to proceed with disparate impact cases, and more recently in individual disparate treatment cases. In 1991, it took an act of Congress to overrule a number of Supreme Court decisions which established a more conservative approach to analyzing cases of employment discrimination. The immediate impact of the Court's posture was to send a signal to employers that equal employment opportunity was dead and aggressive affirmative action programs were illegal. Most recently, in St. Mary's Honor Center v. Hicks, an African-American male plaintiff had to prove that the employer's “legitimate non-discrimination” reason for his discharge was a pretext (a lie). The court of appeals reversed the district court, holding that once Hicks proved that the employer's reasons were a pretext, “he was entitled to a judgment as a matter of law.” The Supreme Court rejected this position and held that a plaintiff was not automatically entitled to a favorable decision upon meeting this burden. The fact-finder has the ultimate responsibility in determining whether the plaintiff has actually proven that he was discriminated against. This decision may permit employers to accept stereotypical biases about African-American males as a “legitimate non-discriminatory reason” for the denial of employment. The decision will surely make it more difficult for African-American males to prove employment discrimination.
B. Health Care System
Where most Americans expect to die from natural causes or medical illnesses, African-American males expect to be a victim of a homicide or a violent crime. For example, the probability of an African-American male being murdered during his lifetime is approximately 42 per 1000, whereas the probability for white males is 6 per 1000. One study finds that an African-American male living in Harlem has a less likely chance to reach age 65 than a person who lives in Bangladesh, one of the poorest countries in the world.
One review of national health statistics reports that the mortality rates among African-American males are substantially higher than those for white males. The probability of an African-American male dying between the ages of 15 and 60 is 30.3%, whereas white males have a probability of 16%. There are further reports that African-American males disproportionately die from injuries such as drowning, pedestrian mishaps, and residential fires. These disparities are a direct result of black males having poor health due to a lack of adequate access to health care, health insurance, and social facts.
The American Cancer Society reports that black males have the highest rate of prostate cancer than any other group. Prostate cancer “is the second most fatal cancer among black men, after lung cancer.” AIDS has had a devastating impact on the lives of black males. Some reports find that black males have the highest rate of AIDS exposure than any other group, especially in the urban area.
Many of the health problems afflicting African-American males are the direct result of unhealthy eating habits, smoking, a lack of physical exercise, and heredity. Racism directed at African-American males and unemployment are also a major underlying causes of stress, hypertension, and suicide.
Hypertension has also affected the health of black males. Studies have suggested that this is a result of the rage that black males must suppress in order to gain acceptance from white Americans.
The suicide rate of white males still outnumbers that of African-American males. White males who commit suicide are typically retired and 65 years of age and older, while African-American males who commit suicide are typically between 25 to 34 years old and unable to continually face the everyday stresses of racism when trying to get a job, when buying a home, or even vacationing. The hospitalization of African-American males as patients in mental health facilities has increased substantially.
Poverty is probably the primary reason for the deteriorating health of African-American males. Some studies suggest that individuals living below the proverty level are more likely to develop health problems. African-Americans, particularly African-American males, are at the bottom of the research.
C. Educational System
Far too many African-American male students are not challenged educationally or expected to succeed. African-American males are typically assigned to less challenging curriculum and systemically discouraged from taking college preparatory courses. In many school districts, African-American males are disproportionately represented in special education classes. Teachers also have a low expectation of African-American males and unconsciously project this disposition to African-American male students. With no hope for future success, other then aspiration for playing professional sports, black males slowly but surely become discouraged with the school curriculum and redirect their attention to other activities that appear to give them immediate recognition, such as drug dealing. African-American males also become disruptive in class because of a lack of support; ultimately, they are suspended and drop out of school. Consequently, African-American males have the highest dropout rate and the lowest graduation rate of all other students. Many African-American males who drop out of school are functionally illiterate and will find it difficult to find meaningful employment. It has been suggested that African-American males are systemically targeted for failure as early as the fourth grade.
There is also empirical data which indicates that African-Americans, particularly African-American males, are disproportionately suspended and expelled from public schools. In 1992, the Houston public school system discovered that of the 15,847 students suspended the previous year, 50% were black, even though they constituted only 38% of the student body. Similarly, a school district in San Diego County reports that, during the 1990-91 school year, 91 out of every 100 African-American males were suspended, whereas 37 of 100 students overall were suspended. Even more shocking is that during the 1986-87 school year in New Orleans Public Schools, almost 80% of expulsions were black males.
In an effort to enhance the academic performance of African-American males in the education system and to encourage these students to remain in school, a number of school districts have proposed or implemented either an Afrocentric curriculum or an all African-American male school. Other programs have been developed at colleges and universities to provide African-American males support and mentoring to inspire them to perform well. Other educational institutions have established “think tanks” to explore ways to improve the educational status of African-American males.
When it was determined in 1991 that the education of African-American males in Detroit's public schools had deteriorated to a crisis level, the Detroit Board of Education passed a resolution supporting the creation of all-male academics. The Board's initiative for proposing a segregated, all male school was based on statistics which revealed the following:
[T]he drop-out rate, delinquency rate, referral of males to special education classes for students with learning disabilities and other handicaps, disciplinary infractions within the school system, drug addiction and other indicia of anti-social behavior indicated that male students in the Detroit School System were failing to succeed in greater numbers than female students within the school system.
The academies were designed to provide the boys with enriched educational opportunities which included Saturday classes on an Afrocentric curriculum, counseling, student uniforms, and other specialized curricular and extracurricular activities.
Less than a month before the academies were to open, a complaint was filed by a female student requesting a temporary restraining order and preliminary injunction to enjoin the school board from opening the academies. The civil action alleged that the establishment of the allmale schools would violate both state and federal laws and the state and federal constitutions.
The district court granted injunctive relief and held that the school board's plan to open all-male academies violated the constitutional and statutory rights of all girls in the public school system. Moreover, the impact of the court's decision is not limited to the Detroit School District. Other school districts which may have intended to simulate the Detroit plan are likely to abandon efforts to establish all-male academies in order to avoid costly litigation.
In higher education, the overall achievements of African-American males continue to be a source of discouragement. For example, the high school completion rate for African-American males is lower than all other demographic groups. The overall enrollment of black males in college during the past four years has also continued to decline. Consequently, the percentage of African-American students who received college degrees decreased between 1980-1990, especially among those receiving bachelor, professional, and medical degrees. The number of African-American males receiving doctorate degrees also has continued to decline during the past few years. This has had a negative impact on the number of African-American males available to teach and conduct research at colleges and universities.
CONCLUSION
An overwhelming number of empirical studies and reports conclude that disparity in the treatment of African-American males exists in the justice system. Similarly, other institutional systems mirror the same negative disparities between African-American males and non-minorities. Even institutional policies and practices that appear to be neutral on their face have a disparate impact on minorities, and African-American males in particular. This disparity is the result of stereotypical biases and racism intentionally and unintentionally directed at African-American males. Many African-American males appear to have fallen prey to negative stereotypical biases which permeate throughout the justice and other institutional systems.
As a result of the disparities, stereotypical biases, and racism in the justice and institutional systems, the status of many African-American males has reached a crisis. Ironically, the courts and Congress have repeatedly acknowledged the disparities, even racism, within the various systems, but, nevertheless have failed to issue or promulgate corrective action. Instead, the criminal justice system continues to disproportionately “lock them up.” Congress and state legislatures continue to propose additional legislation to lock up even more, and law enforcement agencies target African-American males for arrest and prosecution. Clearly, racism and disparity also exist in the civil justice system. African-American males have little faith that they will receive equal justice, particularly in a system where judges are biased, where there is a lack of adequate legal representation for minorities, and where minorities are disproportionately underrepresented in the justice system work force.
FNNote 1. Copyright (c) 1994, Floyd D. Weatherspoon.
. Associate Professor of Law, Capital University Law and Graduate Center. B.A. 1974, North Carolina A&T State University; J.D. 1977, Howard University Law School
