Obama, Race, and Justice

In the president's recent remarks on Trayvon Martin, a somber reminder of the systemic odds minorities face when it comes to criminal justice.
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"It is a real calamity, in this country, for any man, guilty or not guilty, to be accused of crime, but it is an incomparably greater calamity for any colored man to be so accused. Justice is often painted with bandaged eyes. She is described in forensic eloquence, as utterly blind to wealth or poverty, high or low, white or black, but a mask of iron, however thick, could never blind American justice, when a black man happens to be on trial."

-Frederick Douglass, Washington D.C., April 16, 1883, on the Twenty-first anniversary of the Emancipation in the District of Columbia.

The President's remarks on race Friday were remarkable for many reasons. Let me focus upon the one (and the only one) I feel qualified to discuss: Barack Obama was spot-on in his blunt and gloomy assessment of the racial disparities (still) inherent in the nation's criminal justice systems. He was even more insightful in reminding the rest of us about some of the ways in which those disparities contribute to the skepticism and frustration many minority citizens feel about the nation's unfulfilled dream of equal justice.

Here from his Friday remarks are the two relevant paragraphs:

The African-American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws, everything from the death penalty to enforcement of our drug laws. And that ends up having an impact in terms of how people interpret the case.

Now, this isn't to say that the African-American community is naive about the fact that African-American young men are disproportionately involved in the criminal justice system, that they are disproportionately both victims and perpetrators of violence. It's not to make excuses for that fact, although black folks do interpret the reasons for that in a historical context.

One could write a million words and still not plumb the depths of those disparities or their disheartening impact upon those whose lives they shape. For all the talk about a post-racial America, an era the President himself wisely has not announced as here, the unalterably sad truth is that 226 years after the Constitution was born our justice systems still don't uniformly deliver justice equally among the races. What the President is saying here, and what is undeniably true no matter how hard we might try to deny it, is that if you are black or Hispanic in America you very often get a different kind of "justice" than you do if you are white.

"Everything from the death penalty..."

Let's start, as President Obama did, with capital punishment. From an April 2013 report by Amnesty International titled "Death by Discrimination, the Continuing Role of Race in Capital Cases":

The population of the USA is approximately 75 per cent white and 12 per cent black. Since 1976, blacks have been six to seven times more likely to be murdered than whites, with the result that blacks and whites are the victims of murder in about equal numbers. Yet, 80 per cent of the more than 840 people put to death in the USA since 1976 were convicted of crimes involving white victims, compared to the 13 per cent who were convicted of killing blacks.

Less than four per cent of the executions carried out since 1977 in the USA were for crimes involving Hispanic victims. Hispanics represent about 12 per cent of the US population. Between 1993 and 1999, the recorded murder rate for Hispanics was more than 40 per cent higher than the national homicide rate.

Study after study after study after study after study after study has chronicled the details behind these statistics on the state level. The federal death penalty, too, is driven by a clear racial divide and by what some scholars now see as the "racial geography" of capital cases. There also are legitimate concerns about racial disparities in capital cases brought by military prosecutors. In Texas, a condemned man named Duane Buck personifies much of this. He was the victim of racial bias at his trial and, after that racial bias was disclosed he has been the victim of more unequal protection by state and federal officials. Still he sits on death row. Still judges and legislators conjure up arguments to keep him there.

The folks at the Equal Justice Initiative, who have conducted extensive research about the continuing existence of racial disparities in jury selection in the South, offer some context in one jurisdiction about how these figures come to mean what they do to minority citizens:

Racial discrimination remains a dominant feature of criminal justice in the United States and Alabama. More than half of the 3125 people on death row nationwide are people of color; 42% are African American. Prominent researchers have demonstrated that a defendant is more likely to get the death penalty if the victim is white than if the victim is black. The key decision makers in death penalty cases across the country are almost exclusively white. Despite decades of evidence showing that the administration of the death penalty is permeated with racial bias, courts and legislatures' refusal to address race in any comprehensive way reveals a fundamental flaw in America's justice system.

Each year in Alabama, nearly 65% of all murders involve black victims, yet 80% of the people currently awaiting execution in Alabama were convicted of crimes in which the victims were white. Only 6% of all murders in Alabama involve black defendants and white victims, but over 60% of black death row prisoners have been sentenced for killing someone white.

Although black people in Alabama constitute 27% of the total population, none of the 19 appellate court judges and only one of the 42 elected District Attorneys in Alabama is black. Nearly 63% of the Alabama prison population is black. The State of Alabama disenfranchises more of its citizens as a result of criminal convictions than any other state in the country.

"... to enforcement of the nation's drug laws..."

The second part of the President's lament affects far more people than the first. As a matter of law and a matter of fact there is racial disparity both in the enforcement of drug laws -- who gets arrested and prosecuted and who doesn't -- and in the sentencing that occurs following conviction or the entry of a guilty plea. For a general sense of the scope of the problem, here's how the folks from Human Rights Watch wrote it up in their 2013 Report:

Racial and ethnic minorities have long been disproportionately represented in the US criminal justice system. While accounting for only 13 percent of the US population, African Americans represent 28.4 percent of all arrests. According to Bureau of Justice Statistics approximately 3.1 percent of African American men,1.3 percent of Latino men, and 0.5 percent of white men are in prison. Because they are disproportionately likely to have criminal records, members of racial and ethnic minorities are more likely than whites to experience stigma and legal discrimination in employment, housing, education, public benefits, jury service, and the right to vote.

Whites, African Americans, and Latinos have comparable rates of drug use but are arrested and prosecuted for drug offenses at vastly different rates. African Americans are arrested for drug offenses, including possession, at three times the rate of white men. In 2008, African American motorists were three times as likely as white motorists and twice as likely as Latino motorists to be searched during a traffic stop. In New York City, 86 percent of persons "stopped and frisked" by the police were African American or Latino, even though they represented 52 percent of the population. According to the New York Civil Liberties Union (NYCLU), 89 percent of those stopped were innocent of any wrongdoing.

Last month, the American Civil Liberties Union released a report titled "The War on Marijuana in Black and White" that gives more definition to these statistics:

The war on marijuana has largely been a war on people of color. Despite the fact that marijuana is used at comparable rates by whites and Blacks, state and local governments have aggressively enforced marijuana laws selectively against Black people and communities. In 2010, the Black arrest rate for marijuana possession was 716 per 100,000, while the white arrest rate was192 per 100,000. Stated another way, a Black person was 3.73 times more likely to be arrested for marijuana possession than a white person -- a disparity that increased 32.7% between 2001 and 2010.

It is not surprising that the War on Marijuana, waged with far less fanfare than the earlier phases of the drug war, has gone largely, if not entirely, unnoticed by middle- and upper-class white communities. In the states with the worst disparities, Blacks were on average over six times more likely to be arrested for marijuana possession than whites. In the worst offending counties across the country, Blacks were over 10, 15, even 30 times more likely to be arrested than white residents in the same county. These glaring racial disparities in marijuana arrests are not a northern or southern phenomenon, nor a rural or urban phenomenon, but rather a national one.

A national problem -- but one that is not being recognized with any consistency by (largely white) state legislatures around the nation. Earlier this month, for example, Oregon became only the third state in the nation to require "racial impact" statements that could help ease (and certainly will help foster public debate about) disparities in sentencing. And Florida's belated prosecution of George Zimmerman for killing Trayvon Martin, the story that prompted the President's remarks, revealed the racially disparate impact of "stand-your-ground" laws all around the nation.

If there is little the federal government can say in defense of its continuing tolerance of racial disparity in capital cases, at least the White House, Congress and the federal judiciary have begun to address some of the disparities in sentencing. In 2010, Congress enacted and President Obama signed into law the Fair Sentencing Act, a federal statute that reduced (but did not eliminate) disparities in sentences for crack versus powder cocaine. And in 2012, the United States Supreme Court, endorsing the constitutionality of that law, applied it retroactively. These are good steps. But they alone don't come close to solving the problem.

"And that ends up having an impact in terms of how people interpret the case... "

The bases for this line from Friday's remarks ought to be self-evident and uncontroversial. Of course systemic racial inequality in the nation's justice systems would cause minority citizens to be skeptical about the ability of those systems to consistently deliver just results. Of course the perceptions of those people who believe that they or their families have been victimized by racial inequality in justice systems would be skewed differently than those who do not harbor such beliefs. That many white people have never experienced this inequality, or are skeptical about its existence, does not mean that it isn't happening or that its cynicism-inducing impact upon others isn't real.

"...It's not to make excuses for that fact, although black folks do interpret the reasons for that in a historical context."

Here the President is treading upon the most controversial aspect of the passage above. He knows that he has to acknowledge the obvious response to his comments -- "there is racial disparity in the criminal justice system because minority citizens commit more crime"-- and he is trying to do so in a candid way. There is racial disparity under our rule of law not just because, as he says, "African-American young men are disproportionately involved in the criminal justice system, that they are disproportionately both victims and perpetrators of violence," but also because as a nation we've done a terrible job of limiting this disparity by implementing race-neutral legal rules and standards and by reducing the dire economic conditions which give rise to crime.

Postscript

Given the evidence above, it's hard to know what is more disheartening about the president's remarks -- the fact that he needed to remind his fellow citizens that such racial disparities still exist 50 years after Birmingham or the fact that the former constitutional law professor's mention of those disparities would give rise to cries of "race baiting." How are we, as a nation and as a people, going to fix the racial problems in our justice systems if we cannot honestly admit to one other that they exist? The cries today against the President's speech are of a piece with the cries heard 50 years ago: A black man who acknowledges unequal justice is the problem -- not the unequal justice he acknowledges.

In these circumstances, where even raising the specter of unequal justice (and its pernicious impact) gives throat to such ugliness, it's no wonder some perceive the President to be more pessimistic than he used to be on the subject of race. Since he published the Audacity of Hope in the fall of 2006, Obama has witnessed the resurgence of voter suppression efforts aimed at minorities. He has witnessed the rise of the Tea Party. He has witnessed a Supreme Court hostile to affirmative action and a prison system still flooded disproportionately with minority inmates. Against all this, these blossoming vestiges of America's racial past, it's not hard to imagine him imagining himself as the outlier. A step forward amid many steps back.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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