Prometheus 6

Since you have to prove intent, "unconscious" racism gets an automatic pass.

Historically, though, the courts have not welcomed these conversations. The Supreme Court in particular has consistently rejected arguments that studies identifying possible bias in the justice system should affect a particular case.

As the Court wrote in 1987 in McCleskey v. Kemp, in which a challenge to a death sentence drew on a statistical study that found racial disparities in sentencing, “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”...

“There are so many levels within the process,” Judge Olds said. “You start with the police and what they are charging, and you get the magistrate, and who gets bail and who doesn’t, who gets the lawyer and who doesn’t.”

Judges are reluctant to change their handling of any specific case unless a defendant can show intentional discrimination, which is a tall order, Ms. Davis said. But for a darker-skinned person who may get a harsher sentence, the fact that bias was involuntary is small consolation, she said. “The fact that it’s unconscious doesn’t make the outcome any less difficult, or any more just.”

Race Gap: Crime vs. Punishment
By JONATHAN D. GLATER

IF criminal legal proceedings seem to turn out differently for people of different races, when does a constitutional problem exist?

Recent events in Jena, La., where protesters have challenged a prosecutor’s decision to file attempted murder charges against six black youths who beat a white schoolmate, have raised the question anew. (The charges were reduced.)

Last week, the Supreme Court heard arguments over the right of a judge to depart from sentencing guidelines that call for far harsher penalties for crimes involving crack cocaine compared with powdered cocaine. The difference in these guidelines unavoidably involves race since black cocaine users are more likely to use crack, which is a cheaper form of the drug.

“It’s a very key moment,” said Wayne S. McKenzie, director of the prosecution and racial justice program at the Vera Institute of Justice in New York. Because of cases like these, he said, “You have all of these conversations now that are taking place about the disparities in the criminal justice system.”

Historically, though, the courts have not welcomed these conversations. The Supreme Court in particular has consistently rejected arguments that studies identifying possible bias in the justice system should affect a particular case.

As the Court wrote in 1987 in McCleskey v. Kemp, in which a challenge to a death sentence drew on a statistical study that found racial disparities in sentencing, “McCleskey’s claim, taken to its logical conclusion, throws into serious question the principles that underlie our entire criminal justice system.”

The problem was, the court added, “There is no limiting principle to the type of challenge brought by McCleskey,” which involved a black man convicted of killing a white police officer.

But recent research has kept the argument alive. A 2005 study by the Justice Department found that while Hispanic, black and white drivers were stopped by the police about as often, Hispanic drivers or their vehicles were searched 11.4 percent of the time and blacks 10.2 percent of the time, compared with 3.5 percent for white drivers. Data collected from state courts by the Justice Department also shows that a higher percentage of black felons than white felons receive prison sentences for nearly all offenses, and also that blacks receive longer maximum sentences for most offenses.

And the study used in the McCleskey case, conducted in Georgia back in the 1980s, found that more than 20 percent of black defendants convicted of murdering white victims received the death penalty, compared with 8 percent of whites who killed other whites and 1 percent of blacks who killed other blacks.