Supreme Court justices Justice
Sonia Sotomayor and Stephen Breyer virtually seethed with rage in their
roundhouse denunciation of the High Court's denial of review to Bongani
Charles Calhoun . The
issue again was racial bias in the prosecution of Calhoun on drug charges in
Texas. The U.S. Attorney that prosecuted Calhoun quipped during the trial that
when you put African-Americans and Hispanics in the same room with a bag of
money what else could they be doing but a drug deal or presumably some other
criminal act.
The federal prosecutor couldn't let
it go at that. When mildly challenged on his blatant racial stereotyping and
even more blatant prejudicing of the jury, he piled on with the even dumber
quip "What does your common sense tell you that these people are doing in a
hotel room with a bag full of money, cash? None of these people are Bill Gates
or computer [magnates]? None of them are real estate investors."
Breyer and Sotomayor
correctly called it would it was, outrageous prosecutorial racial bias. Their
colleagues didn't agree, and Calhoun's conviction stood. But Sotomayor and
Breyer's rage at the bias simply pointed up what's long been noted in far too
many federal cases, and in the action and behavior of far too many federal
prosecutors. That's that some will routinely and very calculatingly pander to
the overt or latent racial bigotry of some judges and jurors to get a
conviction. They fully know that making overt pejorative racial statements,
judgments, and opinions about a black or Hispanic defendant are flatly forbidden.
And in theory, anyway, are the basis for an appeal, and the possibility of
having a conviction overturned. But that
threat hasn't deterred some prosecutors from playing the race card to get a
conviction, as Breyer and Sotomayor angrily noted.
Three years before the two judges' dissent in the
Calhoun case, a panel of former federal prosecutors were disturbed enough at
the antics of some of their former U.S. Attorney colleagues that they mapped
out in tandem with the Brennan Justice Center a series of pointed guidelines to
wring out racial bias, overt or sneaky, from the line of attack of prosecutors.
Their recommendations included rigorous training and education in what can and
can't be said in trials, tougher management and accountability, and better
relations with minority communities. The former prosecutors were emphatic that
because federal prosecutors have enormous power over what cases are brought,
and when they are brought, and how they are prosecuted, they have a special
duty and responsibility to be fair and unbiased. The problem with that is that many aren't and
this has had devastating consequences in the criminal justice system. The main
one being to pump wider the gaping racial disparity in convictions and
sentencing, and ultimately who packs America's prisons.
A
March 2009 report Racial and Ethnic Disparities in the U.S. Criminal Justice
System, by the National Council on Crime and Delinquency found that
minorities, with the overwhelming majority of them being African Americans,
represented 13 percent of the general population. But they made up nearly 40
percent of those incarcerated in federal prisons. The report made it clear that
racial bias, either overt or subtle, by some prosecutors was a big reason for a
significant number of those tried and convicted winding up behind bars for long
stretches.
The
Calhoun case also pointed to another glaring flaw in many federal prosecutions
and that's the still prevalent racial disparity in drug prosecutions that have
accounted for the explosion in the number of minorities behind federal bars
during the last decade. This occurred despite the push by President Obama to
purge the racial sentencing disparity from the drug laws.
The
standard reasons given for criminalizing practically an entire generation of
young blacks is that they are poor, crime-prone, which is pretty much what the
prosecutor in the Calhoun case flatly said. Reports and studies by the Justice
Department, the U.S. Sentencing Commission, as well as universities and
foundations confirm that far more whites use and deal drugs including crack
cocaine than blacks. Only a small percent of those sentenced to jail terms are
major dealers.
The
scapegoating of blacks for America's crime and drug problem actually began in
the 1980s when much of the media quickly turned the drug problem into a black
problem and played it up big in news stories and features. Many Americans
scared stiff of the drug crisis readily gave their blessing to drug sweeps,
random vehicle checks, marginally legal searches and seizures, evictions from
housing projects and apartments. When it came to law enforcement practices in
the ghettos and barrios, the denial of civil liberties protections, due process
and privacy made a mockery of the criminal justice system to many blacks and
Latinos.
The federal
prosecutors that pander to race to get convictions don't help matters and reaffirm
suspicions that prosecutorial bias is still alive and well in far too many
prosecutions. Sotomayor and Breyer made that point, and a handful of former
prosecutors have warned against its corrosive effects. But as the Calhoun case showed
fingering prosecutors for racial bias alone won't make it go away.
Earl Ofari Hutchinson is an author and political analyst.
He is a weekly co-host of the Al Sharpton Show on American Urban Radio Network.
He is the author of How Obama Governed:
The Year of Crisis and Challenge. He is an associate editor of New America
Media. He is the host of the weekly Hutchinson Report on KPFK-Radio and the
Pacifica Network, and KTYM Radio Los Angeles.
Follow Earl Ofari Hutchinson on Twitter:
http://twitter.com/earlhutchinson