Bias Claim Lacks Key Evidence, U.S. High Court Says

The Supreme Court justices indicated Monday that they are not ready to allow a claim of biased prosecution against blacks without clear evidence that whites are getting away with the same crimes.

“If there is selective prosecution” of blacks for selling crack cocaine, there should be many examples of whites not being prosecuted in federal court for selling crack, said Justice Stephen G. Breyer. “That should be easy. Why isn’t it?”

Justices Ruth Bader Ginsburg and David H. Souter took the same view.

“You have no evidence of similarly situated whites” who are escaping prosecution, Ginsburg told a lawyer representing five black men from Inglewood who were caught in a drug sting.

“How is there even a claim here . . . unless you first have that evidence?” Souter asked.

The highly skeptical questions came during an hourlong argument in another Los Angeles case that has put a national spotlight on the issues of crime, race and possible bias in the criminal justice system.

Defense lawyers and African American leaders long have maintained that black men make up an undue share of the prison population because of racial bias--whether blatant or unconscious--on the part of police, prosecutors and judges.

But the justices made it clear that they were looking narrowly at only one aspect of this broad issue: Do federal prosecutors in Los Angeles show racial bias by singling out black defendants in crack cocaine cases for prosecution in the federal system, where punishments are more severe than in county courts?

The case does not deal with the oft-heard concern that police target enforcement in predominantly black neighborhoods.

In a typical year, several thousand people are arrested in Los Angeles County on suspicion of selling or possessing crack cocaine. Most are prosecuted in state courts.

Each year, however, the U.S. attorney selects about 50 cases for prosecution in federal court, where the law mandates 10 years in prison for those caught with an ounce or more of crack. In Los Angeles, as in most urban areas, the vast majority of those cases have involved black men.

Four years ago, a federal public defender challenged this pattern as a violation of the Constitution’s guarantee of “equal protection of the laws.” Barbara O’Connor, the public defender, filed a motion charging selective prosecution of the five black defendants who were arrested in Inglewood. They were videotaped making crack sales that totaled 125 grams, or about four ounces.

She cited a single statistic to back up her claim of racial bias: All 24 crack cocaine cases handled by her office in 1991 involved black men.

Based on that fact, U.S. District Judge Consuelo Marshall ordered prosecutors to explain their criteria for taking cases to federal court. She also ordered them to furnish three years of data on state and federal crack cases in Los Angeles County.

On Monday, Clinton administration lawyers argued that Marshall erred by not demanding that defense lawyers first show evidence that whites were not being prosecuted.

“The bottom line is that there has to be a substantial showing that individuals who are similarly situated [that is, selling like amounts of crack] are not being charged,” U.S. Solicitor Gen. Drew S. Days III told the court.

O’Connor replied that it was not easy for her to know who was not being prosecuted by federal authorities.

“It is a huge geographical area, and there is no centralized record-keeping system,” she said. “We were attempting to gather more information” through the court order handed down by Marshall, she added.

But the justices disputed that point.

“You could ask around the office or go to a bar meeting and say: ‘Does anyone have a crack cocaine case involving a white defendant,’ ” Breyer said.

Ginsburg also noted that a UCLA statistician had gone through county records and found that only about 3% of arrests on crack charges involved whites.

“Those numbers don’t support your case,” she said. Given those figures, “you would expect very few Caucasians in federal court.”

Only Justice John Paul Stevens sounded sympathetic to the claim of biased prosecution.

From Jan. 1, 1992, to March 31, 1995, the U.S. attorney’s office in Los Angeles filed 144 indictments in crack cases. Of those, 102 involved black defendants, 29 were Latinos, eight were Asian, and one was white.

A review of all drug cases found that Latinos make up 51% of the total indictments, the office said.

The high court is to hand down a ruling in the case (U.S. vs. Armstrong, 95-157) by July.

Meanwhile, the court let stand a Florida law that makes it a crime to burn a cross on another’s property. The outcome in the case (TBD vs. Florida, 95-618) makes it clear that cross burning can be prosecuted as a property crime. In 1992, the court struck down a Minnesota anti-crossing-burning law on the grounds of freedom of speech because it punished actions that were offensive because of their message.