Race and Criminal Justice

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Racial minorities have long sought equal application of the rights the Constitution provides to people accused of crimes. They have needed the protection of these rights because the criminal justice system has at times seemed vehemently biased against them. The result of this quest for justice is that the Supreme Court has often addressed whether particular law enforcement practices are unconstitutional because of racial concerns. The Court has interpreted the Constitution as prohibiting the most obvious and blatant forms of racial discrimination, such as excluding racial minorities from juries. There are, however, some practices such as racially skewed application of the capital punishment and race-based assessments of suspicion, where thus far the Court has declined to order constitutional relief.

Historically, the Constitution has had a limited role in regulating the criminal justice system. Most criminal law originates with, and is enforced by, the states. The principle of federalism has limited the ability of the federal government to intervene, even in cases in which states have applied, or not applied, the criminal law in egregiously unfair ways. The fourteenth amendment promises the " equal protection of the laws " to all persons, but infamous cases like hodges v. united states (1906) and screws v. united states (1945) demonstrated the tenuous nature of this protection. In Hodges, whites were prosecuted by the federal government for vicious physical attacks against African Americans. The Court overturned the convictions, on the ground that the federal government exceeded its authority by making a federal case out of what should have been, in the Court's view, state charges. Thus, in the same manner that federalism provided constitutional justification for Southern states to establish de jure segregation, the Court allowed the principle to foster separate and unequal application of the criminal law to minority and white accused persons. Hodges, in which the Court held that the thirteenth amendment gave Congress the power to reach only acts that closely resembled enslavement, was later overruled by jones v. alfred h. mayer co. (1968).

In other cases, however, the Court has been less reticent about insuring a strong role for the federal government in protecting the criminal justice rights of people of color. In fact, many of the best known decisions of constitutional criminal procedure involved African American or Hispanic litigants. These cases include powell v. alabama (1932), which established the right to counsel in capital cases; brown v. mississippi (1936), which held that coerced confessions violate due process; and miranda v. arizona (1966), which established the right of defendants to be informed about their Fifth Amendment right against self-incrimination. In its opinions, the Court referred to race tangentially, if at all, but the facts of the cases often arose in a context in which it was clear that racial bias infected the state's criminal justice process, and would not be remedied by the state itself. In these cases, accused persons of color vindicated rights that are now enjoyed by all Americans.

The Court has also confronted the issue of explicit bias against racial minorities in the criminal justice system. It has been most protective of minority rights in cases in which the law has permitted discrimination on the basis of race. These cases have often arisen in the context of the right to trial by an impartial jury. Even after the Fourteenth Amendment affirmed their citizenship, African Americans were often routinely excluded from juries. In strauder v. west virginia (1879), the Supreme Court reversed the conviction of a black man who had been found guilty of murder by a jury from which blacks were legally excluded. The Court ruled that the Fourteenth Amendment provides "a positive immunity, or right, most valuable to the colored race—the right to exemption from unfriendly legislation [and] exemption from legal discriminations." Strauder represents the first time that the Fourteenth Amendment was interpreted to apply to government racism.

Even though Strauder guaranteed African Americans the legal right to serve on juries, they still often were excluded through the practice of peremptory challenges. In a criminal trial each side may exclude a limited number of jurors even if there is no reason to think that jurors are biased. In swain v. alabama (1965), the prosecution peremptorily challenged all the African Americans in the jury pool. After the defendent was convicted he charged that the government's race-based exclusion of potential jurors violated the equal protection clause. The Court disagreed, upholding the conviction. The Court emphasized the historic importance of peremptory challenges, and ruled that race-based selection of jurors, absent a pattern of discrimination, was permissible in a particular case if it was part of the government's strategy to win the case. Twenty-one years later this aspect of Swain was overruled by the Court in batson v. kentucky (1986), where the Court ruled that the equal protection clause prohibits the government from using race as a consideration in jury composition, even in a single case. In georgia v. mccollum (1992), the Court prohibited defendants from using race-based challenges as well.

The Court has been more reticent in finding equal protection violations when the discrimination is not admitted by the government. In mccleskey v. kemp (1987), the Court considered statistical evidence that the Georgia death penalty was applied in a race-conscious manner (a sophisticated study found that race of the victim was a significant factor in jurors' determination whether convicted killers should be sentenced to death). The Court declined to invalidate the death penalty under the Fourteenth Amendment because it believed that the statistics did not demonstrate purposeful discrimination in the particular case. Under equal protection jurisprudence an intent to discriminate must be proven. In McCleskey, the Court emphasized the importance of discretion in the criminal justice system and stated that "exceptionally clear proof" was required before it would find an abuse of discretion. The Court also noted that "because of the risk that the factor of race may enter the criminal justice process, [it has] engaged in 'unceasing efforts' to eradicate racial prejudice from our criminal justice system." Since it found that because the statistical evidence showed at most "a discrepancy that appears to correlate with race," the requisite showing had not been advanced.

The requirement of purposeful discrimination has also confounded constitutional challenges to racially selective prosecution and punishment for noncapital offenses. In Ah Sin v. Wittman (1905), the defendant complained that the government's prosecution of gambling offenses was limited to Chinese people. The Court refused to reverse the conviction, establishing a standard of "certainty to every intent" before it would invalidate a conviction on grounds of selective prosecution. Likewise, in United States v. Armstrong (1996), the Court declined even to allow discovery in a case in which there was a claim of selective prosecution of African Americans for offenses involving crack cocaine. The Court required the defendant to show that similarly situated individuals of a different race were not prosecuted, but did not explain how this showing could be made in the absence of court-ordered discovery of prosecutors' files.

Despite constitutional challenges, the Court continues to permit law enforcement officers to consider race when determining suspicion of criminal activity. In United States v. Martínez-Fuerte (1976), the Court found no constitutional violation in Border Patrol officers' using Mexican ancestry as part of their determination of whom to stop for investigation of violation of immigration laws. The Court's analysis was that the fourth amendment requires government searches and seizures to be reasonable, and that it was reasonable to think that people of Mexican ancestry were more likely to have violated the immigration laws. Some commentators have argued that race-based assessments of suspicion violate the Fourteenth Amendment's equal protection clause, but the Court has not so ruled. The use of racial profiles remains one of the most controversial practices by police departments, and one of the few instances in which the Court has approved official race-consciousness by government actors.

Paul Butler


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