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Calling out racial bias in the courts

Earl Ofari Hutchinson

Supreme Court Justices Sonia Sotomayor and Stephen Breyer virtually seethed with rage in their 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 what 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 out what’s long been noted in far too many federal cases, and in the action and behavior of far too many federal prosecutors.

Some will 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 is flatly forbidden. And in theory, anyway, such statements are the basis for an appeal and the possibility of overturning a conviction. 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 by 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 for wringing out racial bias, overt or subtle, from prosecutors’ line of attack. 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 strongly emphasized that because federal prosecutors have enormous power over what cases are brought forward, and when, and how they are prosecuted, they have a special duty and responsibility to be fair and unbiased. The problem is that many aren’t and this has had devastating consequences in the criminal justice system, the main one being the widening racial disparity in convictions and sentencing, and ultimately who packs America’s prisons.

A March 2009 report by the National Council on Crime and Delinquency titled “Racial and Ethnic Disparities in the U.S. Criminal Justice System” 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, overt and subtle, by some prosecutors was a big reason that a significant number of those tried and convicted wound up behind bars for long stretches.

The Calhoun case also pointed to another glaring flaw in many federal prosecutions: the still-prevalent racial disparity in drug prosecutions accounting 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 and 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 and universities and foundations confirm that far more whites use and deal drugs, including crack cocaine, than blacks. Only a small percentage 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 and 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 they 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, identifying racial bias among prosecutors won’t make it go away.

Earl Ofari Hutchinson is an author and political analyst.