Bias Issue in L.A. Drug Cases Goes to Supreme Court

Are federal law enforcement officials in Los Angeles singling out for prosecution black men who are arrested for selling crack cocaine?

Yes and no, the prosecutors say. Yes, they are targeting crack dealers in violent neighborhoods--and nearly all of them happen to be black.

But no, they quickly add, it is not because these crack dealers are black that they are singled out for prosecution. In fact, 51% of federal drug indictments in the Los Angeles area name Latinos, the U.S. attorney’s office said.

The question, coupled with the dual answer supplied by prosecutors, is at the heart of an explosive allegation of official racism that will be aired before the Supreme Court today.

The court case focuses narrowly on the claim that prosecutors are unfairly enforcing the laws in a way that harms African Americans. It skirts the apparent unfairness of the laws themselves, which impose their harshest penalties on the drug crimes most likely to be committed by blacks.

In recent years, defense lawyers and some African American leaders have cited racial bias as one explanation for the extraordinarily high percentage of young black men who are in legal custody. A recent national study estimated that one out of three black men in their 20s is behind bars, on probation or on parole. In California, according to a study by the liberal, nonprofit Center on Juvenile and Criminal Justice, the ratio may be nearly 4 in 10.

The Los Angeles County public defender’s office went to federal court, pointing out that all 24 defendants in crack cases handled by its lawyers in 1991 were black. Last year, the public defender lawyers won a partial victory when the U.S. 9th Circuit Court of Appeals, which is based in California, ruled that a “significant statistical disparity in the race of those prosecuted” suggested an unconstitutional bias in law enforcement.

By a 7-4 vote, the appeals court upheld a trial judge’s order demanding that prosecutors open their files to probing defense lawyers. Judge Stephen Reinhardt, writing for the majority, said a charge of selective prosecution based on race could not be brushed aside lightly because it “calls into question the very integrity of our system of criminal justice.”

The appeals court did not finally rule on whether prosecutors were unfairly targeting blacks. Instead, it left it to trial judges in Los Angeles to examine the extra evidence turned over by prosecutors.

Lawyers for President Clinton’s administration took the issue to the Supreme Court, arguing that prosecutors should not have to spend their time “chasing statistics” unless it could be shown that big-time white crack dealers were treated lightly.

The high court will hear both sides in the case, known as U.S. vs. Armstrong, 95-157, today and issue a written ruling in several months.

If the prosecutors prevail and the justices close the door to claims of selective prosecution based on race, it will almost surely condemn five young black men from Inglewood to long prison terms.

“My guy is facing 35 years to life,” said Barbara E. O’Connor, a deputy public defender who raised the selective-prosecution claim on behalf of Shelton Martin, Christopher Armstrong and three other men caught in a drug sting. Together, they were videotaped making seven sales that amounted to roughly 4 ounces of crack cocaine, enough to fill a cigarette pack and enough to send all of them to prison for at least 10 years.

Although powder and crack cocaine are the same chemical substance, Congress in 1986 set the punishment threshold 100 times tougher for crack. Possession of 5 grams of crack cocaine brings down a mandatory five-year prison sentence. A seller of powder cocaine must be caught with 500 grams, or nearly a pound, to get the same five-year sentence.

Because of these differing laws, “retail-level crack cocaine dealers are being punished like wholesale and import-level powder cocaine dealers,” the U.S. Sentencing Commission concluded last year.

The nonpartisan body recommended a revision in the laws, but the Clinton administration and the Republican-controlled Congress are trying to block that change and maintain the 100-to-1 disparity. The commission’s recommendations automatically take effect unless legislation is enacted to block them.

O’Connor said the crack cocaine punishments were wildly disproportionate to the crime and reflected an “unconscious racism” at work.

“These guys are street dealers, nothing more. And they’re facing enormous sentences,” she said. “You can’t escape the notion that it would be different if the white population were facing these kinds of sentences.”

Federal prosecutors in Los Angeles call allegations of racial discrimination wide of the mark. “We don’t make the laws,” said U.S. Atty. Nora M. Manella. “As prosecutors, we take an oath to enforce the laws. . . . These harsh crack penalties are really driving this case. If you don’t like the penalties, write to your congressman.”

Prosecutors compiled a detailed response to the allegation of racial bias. For example, they reexamined 6,187 crack cocaine cases filed in Los Angeles County from 1990 through 1992 and found only seven of them--about one-tenth of 1%--were whites who were caught with at least 50 grams of crack.

U.S. prosecutors say they take only the worst cases into federal court, “based on race-neutral guidelines that . . . identify defendants who deal large quantities of drugs or otherwise pose a threat of violence.” In crack cases, this usually means the suspect had at least 50 grams of crack or used a gun.

Between Jan. 1, 1992, and March 31, 1995, the U.S. attorney’s office filed 144 indictments in crack-trafficking cases. Of those indicted, 102 were black, 29 were Latino, eight were Asian and one was white. The other four were fugitives whose race was not recorded.

Latinos and whites are more likely than blacks, however, to be indicted for trafficking in marijuana, methamphetamines and powder cocaine.

U.S. District Judge Consuelo B. Marshall handed down the first order requiring prosecutors to supply more information to explain the apparent bias against black defendants. She said she was satisfied in a subsequent case when the U.S. attorney turned over three years of data on all federal drug indictments.

U.S. District Judge J. Spencer Letts, an appointee of President Ronald Reagan, was not satisfied, however. After examining the extra data, he concluded the “serious racial imbalance” in crack cases was the “inevitable result of the disproportionate concentration of resources in minority, inner-city neighborhoods.”

Prosecutors call this definition of bias absurd. Rich, white areas such as Beverly Hills and Pacific Palisades are not beset by crack houses and drive-by shootings, they say.

For their part, the justices have been closely divided on how to decide issues involving statistics based on race. In two landmark cases from the 1980s, the court came to opposite conclusions.

In 1986, the justices held that a prosecutor’s pattern of excluding blacks from jury pools was unconstitutional. Speaking for the court in Batson vs. Kentucky, Justice Lewis F. Powell said a judge should intervene in such instances and force the prosecutor to offer a nonracial explanation.

A year later, the stakes were raised when civil rights lawyers presented powerful statistics showing an apparent racial bias in death penalty cases.

This time, however, Powell, speaking for the 5-4 majority in McCleskey vs. Georgia, rejected the statistical evidence and said judges should focus on the facts in individual cases rather than rely on statistical patterns.

Both the court’s history and its current conservative tilt suggest that the government has a clear edge. It has been 110 years since the justices squarely ruled against the government on a claim of selective prosecution based on race.

In 1886, lawyers for 150 Chinese launderers showed that San Francisco officials arrested them for operating in wooden structures, while 80 non-Chinese won permits to continue operating in buildings made of wood. That clear pattern of official discrimination violated the Constitution’s guarantee of “equal protection of the laws,” the high court ruled in the case of Yick Wo vs. Hopkins.

Clinton administration lawyers cite this precedent in urging the court to dismiss the selective prosecution claim raised in Los Angeles.