‘We Seem Intent . . . on Putting Our Own Apartheid Into Place’ : Justice System Accused of Anti-Black Bias

The Congaree River boils out of South Carolina’s midlands and rolls through the heart of the state, separating affluent, white Lexington County from racially mixed Richland County, seat of the capital, Columbia.

The river might as well be a steel wall. Juries on either side of it tend to render strikingly different verdicts.

On the Lexington side, jurors are much tougher on defendants--often blacks--than jurors in Richland. Lexington jurors lopsidedly favor the prosecution in capital cases. Since 1977, all 10 of those accused of crimes punishable by execution have been sent to Death Row.

“There is a 100% certainty of conviction,” said Ray Paternoster, a Maryland criminologist who has studied the region.

On the Richland side of the river, only about 10% to 20% of defendants in such cases are convicted.

The social map of America is divided too--not by a river, but by ribbons of razor wire and steel bars. The prison system has become a vast holding tank for young blacks. It is isolating them in ever greater numbers from the rest of society. They are the ones who are fueling the boom in imprisonment.

“We’re seeing a division of our society into a white, affluent class and a poor, non-white underclass, many of them convicts and ex-convicts,” said Jim Austin, research chief for the National Council on Crime and Delinquency.

“We seem intent, through massive imprisonment, on putting our own apartheid into place.”

In Illinois and California, young blacks are swept into the penal system at eight times the rate among whites and three times that of Hispanics. According to the American Correctional Assn., adult black males now outnumber adult white males in U.S. prisons (216,000 to 196,000), although they represent only 12.1% of the overall population.

Blacks are dominating the prison population in New York (19,000 blacks, 7,000 whites), in Texas (15,000 and 13,000), in California (21,200 and 19,500), in Florida (15,000 and 14,000) and in Michigan (12,000 and 8,900). In the District of Columbia, the city with the most prisoners per capita, one of every nine blacks between ages 16 and 29 is behind bars.

There are far more black men in prisons and jails than there are on campuses, and, with demographic trends and aggressive drug-law enforcement, even more of black America is expected to wind up in the already crowded penal system.

Sociologists and criminologists disagree on the causes. Mounting poverty (relative to wealth), one-parent families, teen unemployment and slack education play important roles. On the streets of the inner cities, one fact is universally accepted: The potential for crime and for punishment has never been greater.

“There are three keys to understanding the phenomenon,” said James Eaglin, a black attorney who chairs the National Assn. of Blacks in Criminal Justice. “They are environment, environment and environment.

“If you’re uncertain where your next meal is coming from, uncertain if your mom is going to have enough money to pay back rent, there is a real strong incentive to move into the (criminal) process,” said Eaglin, a researcher for the Federal Judicial Center, an arm of the federal courts. “Crime very clearly grows out of opportunity.”

The opportunities are there because drugs are illegal. They are the deadly lure.

“Illicit drug-dealing is a key source of the criminal violence,” said Elliott Currie, a University of California at Berkeley crime specialist. “It is the motivator.”

Drugs have long been a fixture in minority communities, but society’s retribution has moved into a new phase. Since the crime wave of the last decade, lawmakers, courts and prisons have tightened parole and sentencing rules and modified “good time” statutes to make it tougher for both dealers and users.

Enforcement of these laws is scouring the inner cities where the drug trade is the biggest steady employer of young black males.

“Drugs represent the principal economy in most large urban communities,” Eaglin said. “They are part of an underground economy far more pervasive and far more insidious than anything that took place during the bootleg era of alcohol.”

Indeed, blacks are being arrested at the highest rate ever, at twice the rate during Prohibition in the 1920s.

Black Males at Risk

In cities with 250,000 or more people, half of all black men will be jailed by age 55 for murder, rape, robbery, aggravated assault, burglary, larceny, arson or auto theft--offenses the FBI’s Uniform Crime Report classifies as the most serious. Black suspects are arrested in 62% of all robberies and nearly half of all murders and rapes in the country, according to the agency. Population cohort studies in California found that one of every two black men will be arrested before he is 30 years old.

The frenzy of inner-city violence is reflected in black homicide figures. Blacks are the chief victims of black-perpetrated crime. Murder nudges out heart disease, cancer and accidents as the No. 1 cause of death among young blacks. Murder wipes out 7,000 black lives each year, nearly as many as were killed during the Vietnam War.

“Blacks are a disproportionate part of the drug culture and of the underclass,” said Austin. “These are the groups that feed the prisons.”

One of the most powerful predictors of which individuals would become what analysts Jan and Marcia Chaiken call “violent predators”--repeat criminals who specialize in robbery and assault--is heavy, repeated drug use.

Correlation With Habits

“A history of having used hard drugs, including heroin, frequently as a juvenile, is characteristic of serious adult criminals,” said Jan Chaiken in reporting on a Rand Corp. study of about 2,200 inmates in California, Michigan and Texas.

“Recreational use of heroin, or use of alcohol or non-opiate psychotropic drugs, is associated with committing assault or homicide,” Chaiken found.

Drug users are numerous within prison populations: 75% of jail inmates and 78% of prison inmates used an illegal drug at some time in their lives, according to the Bureau of Justice Statistics.

Previous incarceration is another indicator of a violent personality, Chaiken said.

Here the young black male is rapidly gaining experience. Prisoners are a volatile mix of brutal men in a brutal environment, and first offenders are unlikely to benefit from the experience. The more blacks funneled into the system, the more blacks are returned to the streets ready to commit crimes again.

“The rate of imprisonment has become an index of repetitive criminality,” Chaiken said.

Death Row Formula

And, even in the death house, blacks feel the sting of racism.

Of the 1,900 inmates on Death Row, 51% are white, 5% are Hispanic and almost all of the remaining 44% are black. The proportion is high compared to the general population, but it is roughly equal to the percentage of blacks who are arrested each year for murder.

Nevertheless, the figures are skewed by race.

“While blacks who kill whites tend to be singled out for harsher treatment,” said David Bruck, a South Carolina attorney who specializes in capital cases, “the far more numerous black murderers whose victims were black are treated relatively leniently in the courts. They are only rarely sent to Death Row.”

If justice were truly blind, he said, there would be a higher percentage of blacks on Death Row and a lower percentage in prison.

“Because these dual systems of discrimination operate simultaneously, they have the overall effect of keeping the numbers of blacks on Death Row roughly proportionate to the numbers of blacks convicted of murder,” he said, “even while individual defendants are being condemned and others spared, on the basis of race.

“It’s like the man who, with one foot in ice and the other in boiling water, describes his situation as ‘comfortable on average.’ ”

‘Illusion of Fairness’

The death-sentencing system, in other words, creates an “illusion of fairness.”

Paternoster, in his South Carolina studies, found race to be a critical factor when prosecutors decide whether to seek the death penalty, but the judgments were based on the color of the victim, not the color of the accused.

“Prosecutors seek the death penalty in over 70% of multiple felony, interracial homicides and where whites kill whites,” Paternoster found. “However, they request a death sentence in less than 40% of the multiple felony homicides in which blacks kill blacks.”

In a similar study for the American Sociological Review, analyst Gary LaFree found that black men accused of assaulting white women accounted for 23% of all reported rapes, but constituted 45% of all those sent to prison.

When the proportion of blacks who assaulted blacks was factored in (45%), the proportion of blacks sent to prison dropped significantly (26%).

Victim’s Race Is Key

The victim-bias phenomenon is nationwide: A death sentence is roughly five times as likely in Georgia if the victim is white than if the victim is black, according to the Stanford Law Review. In Florida, crimes against whites are about four times as likely to draw the death penalty, and in Illinois, three times as likely.

Geography also has much to do with the severity of punishment. Among the 15 states with the highest rate of imprisonment, 11, including the District of Columbia, are in the South and have large minority populations. Of the 15 states with the lowest rates of imprisonment, a disproportionate number are in the Northwest or Midwest.

“The higher incarceration rates may be seen by some as a way to discipline the lower classes, minority classes,” Paternoster said.

Austin suggested that blacks suffer from the strong law-and-order traditions of the South.

Regions within regions tilt differently on crime and punishment.

Take the area split by South Carolina’s Congaree River.

“Luck becomes a huge factor,” Bruck said. “Sometimes the difference between life and execution, imprisonment and freedom, comes down to on which side of the Gervais Street Bridge the man committed his crime.”