‘Selective Prosecution’ Case to Be Heard by High Court : Judiciary: Black crack cocaine defendants accuse U.S. attorney in L.A. of targeting them because of their race.

The Supreme Court on Monday entered the simmering dispute over alleged racism in the criminal justice system, announcing that it will decide whether federal prosecutors in Los Angeles can be forced to explain in detail why nearly all those charged with crack cocaine violations are black.

The case, to be heard in February, spotlights an explosive social question: Are young black males going to prison in staggering numbers because officials have targeted them and their inner-city neighborhoods for extra patrols and heavy-handed prosecutions? Or do the numbers simply reflect the fact that a staggering number of young black males are involved in crime?

The high court, however, took up the Los Angeles case to try to answer a more narrow legal question. How much evidence does a defendant need to assert that he is a victim of “selective prosecution” and, thereby, to force the government to defend its decision to charge him?

Normally, an indicted criminal cannot fight a charge merely by asserting that it was unfair to indict him.

But in March, the U.S. 9th Circuit Court of Appeals opened the door for black defendants to claim that they were victims of a racially biased system. In a 7-4 decision, it lowered the threshold for such claims and said that “inadequately explained evidence of a significant statistical disparity in the race of those prosecuted suffices” to suggest racism may be involved.

“Few claims [are] as serious as the charge put forth here--that the government has selected them for prosecution because of their race,” wrote Judge Stephen Reinhardt of Los Angeles for the majority.

The decision upheld a judge’s order requiring federal prosecutors to supply information on at least 3,000 drug cases processed over the last three years, including a racial breakdown and the basis for deciding which cases were sent to federal versus state court. Generally, federal officials say, they prosecute major crack dealers and suspects with long previous records.

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The difference between federal and state prosecution can be crucial. Persons convicted in federal court of having more than 50 grams of crack would get at least 10 years and possibly life in prison. But the same charge in a California state court would yield a prison term of five years or less, lawyers say.

A public defender representing five young black men arrested in Inglewood, Calif., had raised the claim by showing that 24 consecutive federal crack cases in 1991 involved blacks.

The U.S. attorney’s office, backed up by the Clinton Administration, said that such numbers are meaningless. Last year, all the antitrust defendants charged in federal court, and nearly all those charged with pornography and LSD violations, were white, they point out.

They urged the high court to reverse the 9th Circuit decision so that prosecutors can spend their time “prosecuting crime . . . instead of chasing statistics.”

Otherwise, defense lawyers will be encouraged to go on “fishing expeditions,” they said. As an example, they cited a recent claim in Los Angeles where lawyers for illegal immigrants slated for deportation claimed selective prosecution because nearly all those targeted were Latinos.

On Monday, the high court agreed to hear the government’s appeal (U.S. vs. Armstrong, 95-157).

The court’s action comes in the wake of a recent report and rally that decried the soaring number of young black men in prison. A study based on Justice Department data recently estimated that about one in three young black men is either behind bars, on parole or on probation.

Speaking at the “Million Man March” here two weeks ago, the Rev. Jesse Jackson blamed these numbers on harsh drug laws and a racially biased justice system.

Unquestionably, the Anti-Drug Abuse Act of 1986 has had an impact. It set a five-year mandatory federal prison term for anyone convicted of having five grams or more of crack, and a 10-year term for anyone with 50 grams or more.

Last year, a Justice Department report noted that while drug cases are swelling the prisons, one in five federal inmates is a low-level drug criminal with no record of violence.

In the Los Angeles case, however, federal attorneys say that the numbers are easy to explain. Blacks account for nearly all the crack prosecutions because they control the crack business, they say.

“Jamaicans, Haitians and black street gangs dominate the large-scale manufacture and distribution of crack nationwide,” U.S. Solicitor General Drew S. Days III told the high court, and “black street gangs dominate the distribution of crack in the Los Angeles area.”

Assistant U.S. Atty. Richard E. Drooyan, chief of the criminal division in Los Angeles, welcomed the high court’s intervention.

Since the 9th Circuit decision in March, “we’ve seen one motion after another” alleging selective prosecution, he said. “I can’t tell you the number of attorney hours and investigator hours that have gone into these inquiries,” he said.

Barbara O’Connor, the deputy federal defender who first raised the issue, said that she was “disappointed but not surprised” that the justices agreed to hear the case.

“I think there is an unconscious racism that is resulting in the steady stream of young black males going into custody for enormous periods of time,” she said. “We don’t know why it’s happening. That’s why we need information on their policies and procedures.”

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An attorney for defendant Aaron Hampton said that the stakes for his client could not be higher. Hampton, 27, has two minor drug offenses on his record and was caught with 50 grams of cocaine and a gun.

“He is looking at mandatory life in prison without the possibility of parole” if his case goes into federal court, said Timothy C. Lannen, his court-appointed lawyer. “If he had been prosecuted in state court, he’d be looking at six years” behind bars, he said. Hampton’s indictments occurred before California’s three-strikes law took effect.

If the black defendants prevail in the high court, they will win only the right to seek detailed evidence on how crack cases are investigated and prosecuted in Los Angeles. If they lose, they will likely get a speedy trial and, if convicted, a long prison sentence.

A ruling is due by July.

Without comment, the high court denied appeals in 197 cases Monday, including that of a Mexican businessman serving life in prison for his role in the 1985 kidnaping and murder of U.S. drug agent Enrique Camarena. Ruben Zuno-Arce is one of six persons convicted in the case (Zuno-Arce vs. U.S., 95-532).