II. THE DISCRETIONARY DECISIONS OF FEDERAL PROSECUTORS WHETHER TO EXERT FEDERAL CRIMINAL JURISDICTION OVER NARCOTICS OFFENSES MUST BE SUBJECT TO EFFECTIVE MONITORING TO ENSURE THAT RACIAL BIAS DOES NOT INFLUENCE THEM
Prosecutorial discretion contributes to the widening gulf between juvenile and adult African-Americans' and other offenders' incarceration rates. While “the total number of white juveniles brought to court on drug charges in 1990 exceeded the total number of blacks by 6,300 ..., a far greater number of white youths were sent home without being tried, were released to drug counseling programs, or were placed on probation. Consequently, 2,200 more blacks than whites ended up on correctional facilities.” Figures for adult crack and cocaine prosecutions are similar.
A recent survey of prosecutions for crack cocaine offenses conducted by the Los Angeles Times revealed that not a single white offender had been convicted of a crack cocaine offense in the federal courts serving the Los Angeles metropolitan area since 1986, despite the fact that whites comprise a majority of crack users. Dan Weikel, War on Crack Targets Minorities Over Whites, L.A. Times, May 21, 1995, quoted in The Sentencing Project, at 10 (1995). Moreover, according to a study by Richard Berk, between 1990 and 1992, over 200 white crack dealers were prosecuted by the state authorities in Los Angeles, a period during which the U.S. Attorney's office prosecuted not one white defendant for crack. Richard Berk, Preliminary Data on Race and Crack Charging Practices in Los Angeles, 6 Fed. Sentencing Rep. 36 (1993).
Just as the existence of a pattern of employing peremptory challenges with the result of removing Black or other minority jurors from panels suggests the possibility that this aspect of prosecutorial discretion may be influenced by racial bias, and requires the carefully delineated judicial remedy created by this Court in Batson, so too do the data summarized above support -- indeed compel -- the conclusion that a similar judicial remedy must be available to preserve the integrity of the federal criminal justice system. Unless the potential for discriminatory decision-making is addressed, public support for and confidence in federal criminal procedures will be eroded by the suspicion that drug laws generally, and the “cocaine base” laws specifically, are being administered in a racially discriminatory manner. That is surely the view of a growing number of law enforcement officials and judges who have been on the front lines throughout the “War on Drugs.”
