Judge Cites Man’s Record of ‘Driving While Black,’ Eases His Sentence

According to federal sentencing guidelines, Alexander Leviner could have received four to six years in prison for possessing a gun and 14 rounds of ammunition.

Instead, in a decision that may have national implications, U.S. District Judge Nancy Gertner of Boston handed Leviner a reduced sentence of just 2 1/2 years, citing her belief that his lengthy arrest record could be traced to police officers’ habit of stopping black drivers more often than white drivers.

Gertner’s decision, reported Wednesday by the Boston Globe, is believed to be among the first to address racial disparity in traffic stops as the cause of a defendant’s police record. Her ruling gives legal legs to the long-standing contention of many minorities, especially African American males, that police habitually stop and search their cars because of race.

The issue, known colloquially as “DWB,” or “Driving While Black,” was debated in this session of Congress.

“Motor vehicle offenses, in particular, raise deep concerns about racial disparity,” Gertner wrote in her Dec. 3 decision. “Studies from a number of scholars and articles in the popular literature have focused on the fact that African Americans are stopped and prosecuted for traffic stops more than any other citizens. And if that is so, then it is not unreasonable to believe that African Americans would also be imprisoned at a higher rate for these offenses.”

The decision may have limited immediate effect because it involves only federal sentencing procedures, while many questionable arrests occur in local jurisdictions.

But the decision is still significant, said University of Toledo law professor David Harris, an expert on the laws of search and seizure, because it shows that “judges and others are waking up to the fact that African Americans get stopped by the police in numbers far out of proportion to their presence in the driving population.”

Harris said in a Wednesday interview that that practice “has a long-term, corrosive, devastating impact not only on the individuals stopped--the great majority of whom are innocent--but on our entire system of criminal justice, in that their beliefs in the integrity of the system are eroded.”

What is happening as a consequence, he said, “is that people are believing the police a lot less. People don’t trust the integrity of the system.”

Leviner, a 33-year-old asbestos worker, was arrested at 3 a.m. on Sept. 14. Police were investigating a report of shots fired when they stopped him for driving too fast and with the lights off. Police found a spent shell casing from Leviner’s gun in his car, along with the ammunition. Because his previous convictions included minor drug possession offenses, he was charged with being a felon in possession of a firearm, a federal offense.

The length of an individual’s arrest record bears special importance in federal court, where judges follow guidelines based on a defendant’s criminal record to impose sentencing.

In departing from those guidelines, Gertner noted that Leviner’s record was made up “overwhelmingly” of minor vehicle violations and minor drug possession offenses. The federal sentencing procedure, Gertner wrote, “overstates [Leviner’s] culpability and the likelihood of recidivism.”

Boston University law professor Tracy Mack, a specialist in criminal procedure, praised Gertner’s action as “a gutsy decision, a path-breaking decision.” He predicted that other federal judges, while not bound by it, will follow her lead.

In incurring a “DWB arrest,” Leviner joined company with baseball Hall of Famer Joe Morgan, former Los Angeles Laker Jamaal Wilkes, Olympic Gold Medalist Al Joyner and California Assemblyman and state Sen.-elect Kevin Murray (D-Culver City), all of whom claim to have been stopped by law enforcement officers in Southern California because they are black.

The issue was the focus in Congress of the Traffic Stops Statistics Study Act of 1998, shepherded through the House in March by Rep. John Conyers Jr. (D-Mich.). The Senate has taken no action.

Conyers introduced figures showing that while blacks make up about 14% of the population, they account for 72% of drivers pulled over for routine traffic stops.

“There are very few of us in this country who have not been stopped at one time for an alleged traffic violation that we thought constituted really simple racial harassment,” Conyers said in sponsoring the measure, which would require the Justice Department to determine the racial breakdown for routine traffic stops made by state and local police.