A Catch-22 Ruling on Selective Prosecution : Law: A high court decision in an L.A. appeal all but guarantees that racial bias in federal crack cocaine cases will be unprovable.

David Cole is professor of law at the Georgetown University Law Center, Washington

“Nothing can corrode respect for the law more than the knowledge that the government looks beyond the law itself to arbitrary considerations such as race . . . as the basis for determining its applicability.” So said the U.S. Court of Appeals for the 2nd Circuit more than 20 years ago, in a case involving allegations of selective prosecution. Yet in a decision issued May 13, the Supreme Court guaranteed that respect for the law will be corroded by making it virtually impossible even to gather evidence for race-based selective prosecution claims.

The case, U.S. vs. Armstrong, involved the enforcement of a federal crack cocaine law in Los Angeles. The defendants, all black, claimed that the U.S. attorney was selectively prosecuting black offenders in federal court, while directing nonblack defendants to state court, where sentences are much shorter. They presented evidence that all 24 crack cases closed by the federal public defender’s office over the prior year involved black defendants, that whites and blacks use and deal crack on a relatively equal basis and that nonblack crack offenders are tried in state court. (While defendants in federal crack cocaine prosecutions are disproportionately black, the U.S. Sentencing Commission reported in 1995 that 65% of those who have used crack are white.) The U.S. attorney’s own review of about 2,400 crack cocaine cases prosecuted in federal courts over a four-year period revealed not a single case against a white defendant.

Last year, the Court of Appeals for the 9th Circuit held that this evidence raised sufficient questions to justify limited discovery into the prosecutor’s policies and practices, to determine whether selective prosecution was indeed the explanation. But the Clinton administration refused to open its files or explain its actions, and instead petitioned the Supreme Court to rule that even such a stark racial disparity justifies no discovery of the prosecutor’s files. On May 13, the court sided with the administration.

Chief Justice William H. Rehnquist proclaimed that the court’s decision would not “make a claim impossible to prove.” But such claims are in fact nearly impossible already. There has not been a single reported federal case of a dismissal for race-based selective prosecution since 1886. Perhaps this is because no prosecutor in 110 years has ever been motivated by racial considerations, but I doubt it.


The more likely reason is that the court has created a Catch-22 for selective prosecution claimants. In order to prevail, a defendant must prove that the prosecutor did not prosecute others who engaged in the same conduct, and that the reason the prosecutor singled out the defendant was racial animus. Establishing both of these facts requires access to the prosecutor’s records. But the court in Armstrong ruled that a defendant has no right of access to the prosecutor’s files unless he first introduces evidence that the prosecutor did not prosecute others in similar circumstances and acted out of racial animus in his case. In effect, one must prove one’s claim without access to the very evidence necessary to prove one’s claim. Under this rule, the only time a selective prosecution claim might succeed would be if a U.S. attorney were to announce an official policy of targeting only blacks for prosecution. Beyond that, the defense of selective prosecution is a myth.

I filed an amicus brief in the Armstrong case on behalf of former law enforcement officials and police organizations, including Elliot Richardson, former U.S. attorney general; Whitney North Seymour Jr., former U.S. attorney for the Southern District of New York; John Dunne, former civil rights division chief; James M. Shannon, former Massachusetts attorney general, and the National Black Police Assn. Law enforcement officials don’t usually side with criminals, but this bipartisan group urged the court to permit discovery into the charges.

Their concern was that if the court refuses to permit even preliminary inquiry into credible charges of race discrimination in criminal justice, the people’s trust in the criminal justice system will erode. And effective criminal law enforcement is impossible without the trust of the people. If the black community, for example, is suspicious that the system is racially rigged against them, they will be less likely to cooperate with police and prosecutors, less likely to appear as witnesses and less likely to convict as jurors.

There is little doubt that the black community is suspicious. The racially polarized reactions last year to the O.J. Simpson verdict dramatically brought home what pollsters had long been telling us: The black community views the criminal justice system with deep-seated and widespread distrust. That distrust has its roots in a long history of racial discrimination, but those roots are only replenished by decisions like Armstrong, which make it impossible even to ask the question whether a criminal prosecution was racially motivated.