United States v. Armstrong Brief Amicus Curiae

    No. 95-157

In the

mpvexm (Eonvt ai tlte '^nxhb
October term , 1995

United States of America,
Petitioner,

-vs-

Christopher Lee Armstrong, et a i ,

Respondents.

ON WRIT OF c e r t io r a r i  TO THE UNITED STATES 
COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF NAACP
LEGAL DEFENSE & EDUCATIONAL FUND, INC., 

AND AMERICAN CIVIL LIBERTIES UNION AS 
AMICUS CURIAE IN SUPPORT OF RESPONDENTS

Steven r . Shapiro 
American Civil Liberties 
Union Foundation 

132 West 43 Street 
New York, New York 10036 
(212) 944-9800

Elaine r . Jones 
Theodore m . Shaw 
George h . Kendall*
L. Song Richardson 
NAACP Legal defense & 

Educational Fund, in c . 
99 Hudson Street, 16th Floor 
New York, New York 10013 
(212) 219-1900

Attorneys fo r  Amicus Curiae

* Counsel o f  Record



TABLE OF CONTENTS

SUMMARY OF ARGUMENT

ARGUMENT

3

4

CONTEMPORARY EVIDENCE REVEALS 
THAT RACIAL BIAS CONTINUES TO 
INFLUENCE THE EXERCISE OF 
DISCRETIONARY ACTS IN THE 
ADMINISTRATION OF CRIMINAL JUSTICE

A. Comprehensive studies initiated by state 
and federal courts show that racial bias 
continues to influence decision-making in 
the criminal justice system .........................

B.

1.

2.

Race continues to influence 
discretionary decisionmaking 
within the criminal justice system .

Racism, both overt and 
unconscious, affects discretionary 
charging and sentencing ...............

Eliminating racial bias, both overt and 
unconscious, from judicial proceedings 
requires that courts take specific steps to 
identify instances in which bias may 
influence decision-making and to prevent 
it from doing so ................................... .. 10

1. Despite the courts’ current efforts 
to eradicate racial bias, overt and 
unconscious racism on the part of 
law enforcement actors persists . . 10

2. Adequate information must be 
collected, maintained and 
disclosed when necessary in order 
to determine the existence or non­
occurrence of bias-influenced 
decisionmaking................................. 13



3. Based upon the availability of 
such rehable information, the 
exercise of discretion can be 
monitored so as to identify and 
eliminate discriminatory actions in 
the criminal justice process .......... 14

II. THE DISCRETIONARY DECISIONS OF
FEDERAL PROSECUTORS WHETHER TO 
EXERT FEDERAL CRIMINAL 
JURISDICTION OVER NARCOTICS 
OFFENSES MUST BE SUBJECT TO 
EFFECTIVE MONITORING TO ENSURE 
THAT RACIAL BIAS DOES NOT INFLUENCE 
T H E M ...............................................................................

III. THE GOVERNMENTS VIEW THAT
DISCOVERY IS NOT PERMISSIBLE UNTIL 
THE DEFENDANT MAKES A SUBSTANTIAL 
THRESHOLD SHOWING OF SELECTIVE 
PROSECUTION, IF ACCEPTED, WOULD 
IMPOSE AN UNNECESSARY AND  
CRIPPLING BURDEN UPON VINDICATION 
OF EQUAL PROTECTION CLAIMS ..................

16

19

A.

B.

C.

The "substantial threshold" rule 
overprotects the government’s interest in 
preserving broad discretionary prosecution 
powers..................................................................

Such a rule is based upon a false premise: 
that the evidence supporting such a claim 
is generally and reasonably available . . . .

The "substantial threshold" standard would 
impose a crippling burden of production .

19

21

23



IV. THE DISTRICT COURTS DISCOVERY 
ORDER APPROPRIATELY BALANCED 
EACH PARTY’S LEGITIMATE INTERESTS ..........  25

CONCLUSION 

APPENDIX A

29



TABLE OF AUTHORITIES

Cases: Pages:

Alexander v. Louisiana,
405 U.S. 625 (1972) .................................... .......................... 2

Batson v. Kentucky,
476 U.S. 79 (1986) ......................................

Carter v. Jury Commission,
396 U.S. 320 (1970) .................................... .......................... 2

Coker v. Georgia,
433 U.S. 584 (1977) .................................... .......................... 2

Edmonson v. LeesviUe Concrete Co.,
500 U.S. 614 (1991) .................................... .......................  12

Furman v. Georgia,
408 U.S. 238 (1972) .................................... .........................  2

Horton v. Zant,
941 F.2d 1449 ( llth  Cir. 1991).................. .......................  25

Jones V. Davis,
835 F.2d 835 (llth  Cir. 1988) .................. .......................  25

Love V. Jones,
923 F.2d 816 (llth  Cir. 1991) .................. .......................  25

McCleskey v. Kemp,
481 U.S. 279 (1987) ................................... .........................  2

Miller V. Lockhart, 65 F.3d 676 (8th Cir.
1995) ............................................................... .......................  25

PoweU V. Alabama,
287 U.S. 45 (1932) ...................................... .........................  2



Pages

Strauder v. West Virginia,
100 U.S. 303 (1880) ......................................... ..................  12

Swain v. Alabama,
380 U.S. 202 (1965) ......................................... . . .  2, 23, 24

Turner v. Fouche,
396 U.S. 346 (1970) .......... ' . ........................... ....................  2

United States v. Armstrong, 48 F.3d 1508 (9th
Cir. 1995)(en b a n c )........................................... ..................  28

United States v. Clary,
846 F. Supp. 768 (E.D. Mo. 1 9 9 4 ) ............... ..................  18

United States v. Hazel,
696 F.2d 473 (6th Cir. 1983) ......................... ..................  22

United States v. Hoover,
727 F.2d 387 (5th Cir. 1984) ......................... ..................  22

Miscellaneous: Pages:

Bennett L. Gershman, Prosecutorial Misconduct (1993) . . 20, 21

California Judicial Council Advisory Committee on
Racial and Ethnic Bias in the Courts, 1991-1992
Public Hearings (1993) ........................................................... 9

D.C. Circuit Task Force on Gender, Race and Ethnic Bias, Draft 
Final Report. Jan. 1995   passim

Florida Supreme Court Racial and Ethnic Bias Study
Commission, Where the Injured Fly for Justice,
Dec. 11, 1990 .....................................................................passim

Florida Supreme Court Racial and Ethnic Bias Study
Commission, Where the Injured Fly for Justice,
Dec. 11, 1991 ..........................................................  5, 13, 15



m

Pages

Georgia Supreme Court Commission on Racial and
Ethnic Bias in the Court System, Let Justice Be 
Done: Equally, Fairly, and Impartially, Aug.
1995 .........................................................................  5, 12, 14, 15

James Vorenberg, Decent Restraint of Prosecutorial
Discretion, 94 Harv. L. Rev. 1521 (1981) .......................  20

Massachusetts Supreme Judicial Court Commission to 
Study Racial and Ethnic Bias in the Courts,
Final Report, Sept. 1994 ........................................... passim

Michael Tonry, Mahgn Neglect: Race, Crime, and
Punishment in America, 1995 ...........................................  16

Michigan Supreme Court Task Force on Racial/Ethnic
Issues in the Courts, Final Report, Dec. 1989 . . . .  passim

New Jersey Supreme Court Task Force on Minority
Concerns, Final Report, June 1992 ....................  5, 12, 14

New York State Judicial Commission on Minorities,
Executive Summary, April 1 9 9 1 ......................................passim

Oregon Supreme Court Task Force, Report on
Racial/Ethnic Issues in the Judicial System,
May 1994  passim

Richard Berk, Preliminary Data on Race and Crack 
Charging Practices in Los Angeles, 6 Fed.
Sentencing Rep. 36 (1993) ...........................................  17

Robert Jackson, The Federal Prosecutor, 31 J.Crim.L.
& Crim. 3 ..............................................................................  20

Sam Meddis, Whites, Not Blacks, At The Core of Drug Crisis,
USA Today, Dec. 20, 1989 ........................................  17, 18



IV

State of Iowa Equality in the Courts Task Force, 
Final Report, Feb. 1993 ............................

Pages

7, 13, 14, 15

The Washington State Minority and Justice
Commission, Racial and Ethnic Disparities in 
the Prosecution of Felony Cases in King 
County-Final Report, Nov. 1995 .................... 5, 7 ,8



No. 95-157

In The

Supreme Court of tfjc ®mteb ^tatesf
O c t o b e r  Te r m , 1995

U n it e d  St a t es  o f  A m e r ic a , Pe t it io n e r ,

V.

Ch r is t o p h e r  Le e  A r m s t r o n g , e t  a l .. R e s p o n d e n t s .

On Writ of Certiorari to the United States 
Court of Appeals for the Ninth Circuit

BRIEF OF NAACP LEGAL DEFENSE 
& EDUCATIONAL FUND, INC., AND 

AMERICAN CIVIL LIBERTIES UNION AS 
AMICI CURIAE IN SUPPORT OF RESPONDENTS

INTEREST OF AMICR

The NAACP Legal Defense and Educational Fund, 
Inc., is a non-profit corporation formed to assist African 
Americans to secure their rights by the prosecution of 
lawsuits. Its purpose includes rendering legal aid without 
cost to African Americans suffering injustice by reason of 
race who are unable, on account of poverty, to employ legal 
counsel on their own. For many years, its attorneys have

^Letters from the parties consenting to the filing of this brief have 
been lodged with the Clerk of the Court.



represented parties and have participated as amicus curiae 
in this Court and in the lower state and federal courts.

The Fund has a long-standing concern with the 
influence of racial discrimination on the criminal justice 
system. It has raised jury discrimination claims in appeals 
from criminal convictions,^ pioneered in the affirmative use 
of civil actions to end jury discrimination,^ represented the 
defendant in Swain v. Alabama, 380 U.S. 202 (1965), and 
filed an amicus brief in Batson v. Kentucky, 476 U.S. 79 
(1986). The Fund has also participated in a number of cases 
involving the influence of race upon the administration of 
capital punishment.'*

The American Civil Liberties Union (ACLU) is a 
nationwide, non-profit, nonpartisan organization with nearly 
300,000 members dedicated to the principles of liberty and 
equality embodied in the Constitution. The ACLU of 
Northern California, the ACLU of Southern California, and 
the ACLU of San Diego and Imperial Counties, are its 
affiliates in the state of California where this action arose.

Since its founding in 1920, the ACLU has been 
particularly concerned with combatting the problems of 
racial discrimination in the criminal justice system. For 
example, the ACLU played an important role in overturning 
the infamous Scottsboro convictions in Powell v. Alabama, 
287 U.S. 45 (1932). More importantly, the ACLU has been 
deeply involved in the effort to eliminate the discriminatory 
use of peremptory challenges. See e.g. Batson v. Kentucky, 
supra.

 ̂E.g. Alexander v. Louisiana, 405 U.S. 625 (1972).

 ̂ Carter v. Jury Commission, 396 U.S. 320 (1970); Turner v. 
Fouche, 396 U.S. 346 (1970).

Furman v. Georgia, 408 U.S. 238 (1972); Coker v. Georgia, 433 
U.S. 584 (1977); McCleskey v. Kemp, 481 U.S. 279 (1987).



This case once again brings the issue of racial 
discrimination in the criminal justice system to the forefront. 
As this Court has previously recognized, even the 
appearance of discrimination has a corrosive effect on public 
confidence in the administration of justice. The actual 
existence of discrimination is obviously incompatible with 
our most basic notions of due process and equal protection. 
The proper resolution of this case is, therefore, of critical 
importance to the Fund, and to the ACLU and its members.

SUMMARY OF ARGUMENT

The case calls upon the Court to fashion a discovery 
rule for selective prosecution claims.

Despite the Court’s unceasing efforts to purge the 
administration of justice of racial discrimination, 
comprehensive contemporaneous studies by the state and 
federal courts show that racial bias continues to influence 
decision-making in the criminal justice process. Elimination 
of bias from judicial proceedings requires that courts take 
affirmative steps to identify instances in which bias may 
influence discretionary decision-making and to prevent it 
from doing so. Information relevant to bias and decision­
making must be collected, maintained, and disclosed when 
necessary to determine whether a decision is bias-influenced. 
Today, evidence relevant to determining whether decisions 
of prosecutors are influenced by race is often maintained 
only by the prosecutor.

These studies as well as other sources show that 
discretionaiy decisions by prosecutors in drug prosecutions 
may sometimes be influenced by racial bias. Courts must 
be prepared to explore such matters thoroughly whenever a 
colorable basis for such a claim is presented.

The government’s view that discovery is not 
permissible until the defendant makes a substantial threshold 
showing of selective prosecution ignores these realities. 
Such a rule oveiprotects the government’s interest in being 
free of such discovery, is based upon a false view that



evidence tending to show selective prosecution is generally 
and reasonably available elsewhere, and would, if adopted, 
impose a crippling burden of production upon citizens facing 
criminal charges who are often indigent.

The district court utilized the correct approach in this 
case. Discovery of non-privileged data and charging criteria 
was ordered only after respondents presented credible 
evidence suggesting that only African Americans are 
prosecuted in federal court for sales of cocaine base whereas 
large numbers of non-blacks are prosecuted in state court 
where sentences are significantly lighter, and only after the 
district court gave careful, deliberate consideration to the 
government’s rebuttal evidence. Such issues are best left to 
the district courts, and the judge in this case clearly did not 
abuse her discretion.

ARGUMENT

I. CONTEMPORARY EVIDENCE REVEALS THAT 
RACIAL BIAS CONTINUES TO INFLUENCE THE 
EXERCISE OF DISCRETIONARY ACTS IN THE 
ADMINISTRATION OF CRIMINAL JUSTICE

A. Comprehensive studies initiated by state and 
federal courts show that racial bias continues 
to influence decision-making in the criminal 
justice system

During the past decade, numerous state and federal 
courts established task forces and charged them with 
appraising the treatment of racial and ethnic minorities in 
the courts, ascertaining public perceptions of the fairness of 
the judicial system, and making recommendations on 
reforms and identifying the response necessary to eliminate 
the perception and reality of race-based partiality. The 
unpleasant and consistent conclusion each has reached is 
that "inequality, disparate treatment, and injustice remain



hallmarks" of the criminal justice system/ We report 
important findings that are relevant to the question 
presented.

1. Race continues to influence discretionary 
decisionmaking within the criminal justice system

After exhaustive research and analysis of copious 
data^ the court appointed task forces throughout the 
country confirmed the continued influence of racial bias at 
all stages of the criminal justice process. Distressingly, racial 
bias, both overt and unconscious, continues to cause an 
alarming number of law enforcement actors — police, 
prosecutors, and judges -- to treat minorities differently and 
more harshly than similarly situated whites. Race continues 
to exercise influence wherever discretion is exercised, 
whether it be at the arrest,’ charging, bail,* jury selection,®

 ̂ New York State Judicial Commission on Minorities, Executive 
Summary, p. 1 (April 1991) [hereinafter "New York"].

*For a description of each study’s methodology, see Appendix A.

’The Florida Supreme Court Racial and Ethnic Bias Study 
Commission’s findings are typical. The Commission found that "An 
overwhelming majority of those interviewed fincluding. significantly, 
law enforcement officials') believed that minorities are treated 
differently from and more harshly than non-minorities at the arrest 
stage. [Mjinority juveniles are more likely to be formally arrested 
than similarly situated white juveniles." Florida Supreme Court 
Racial and Ethnic Bias Study Commission, Where the Injured Fly for 
Justice, Dec. 11, 1990, at 62 [hereinafter F/orwfa /]. The New Jersey 
Supreme Court Task Force on Minority Concerns concluded that 
there was significant evidence of discrimination by police who channel 
minority criminal defendants to the court system. New Jersey 
Supreme Court Task Force on Minority Concerns, Final Report, June 
1992, at 132 [hereinafter New Jersey]', see also, e.g.. The Washington 
State Minority and Justice Commission, Racial and Ethnic Disparities 
in the Prosecution of Felony Cases in King County-Final Report, Nov. 
1995, at 52 [hereinafter Washington] (deputy prosecuting attorneys



or sentencing stage. One report summarized:

In short, the reality is that African-American[s] . . . 
are being treated differently at several stages of 
the . . . justice system. When the object is 
punishment — detention, formal adjudication, or 
commitment ~ minorities get more; when what is 
being handed out is informal processing or diversion, 
minorit[ies] get less. This differential treatment 
results, at least in part, from racial and ethnic bias on 
the part of enough individual police officers, . . . 
prosecutors, and judges to make the system operate 
as if it intended to discriminate against non-whites.^°

report that predominantly minority areas are targeted by the police 
for proactive drug stings); Oregon Supreme Court Task Force, Report 
on RaciallEthnic Issues in the Judicial System, May 1994, at 3 
[hereinafter Oregon].

Ŝee, e.g., D.C. Circuit Task Force on Gender, Race and Ethnic 
Bias, Draft Final Report, Jan. 1995, at 215 [hereinafter D.C. Circuit]-, 
New York, at 38-40; Florida Supreme Court Racial and Ethnic Bias 
Study Commission, Where the Injured Ffy for Justice, Dec. 11, 1991, at 
23 [hereinafter Florida 77] ("non-White offenders were less likely than 
Whites, other factors being equal, to have bail set below schedule 
boundaries"); New Jersey, at 133; Michigan Supreme Court Task 
Force on Racial/Ethnic Issues in the Courts, Final Report, Dec. 1989, 
at 51 [hereinafter Michigan] ("a district judge at a judicial forum 
indicated that it was sometimes expedient as a matter of political 
reality to place a higher bond on a minority defendant"); Georgia 
Supreme Court Commission on Racial and Ethnic Bias in the Court 
System, Let Justice Be Done: Equally, Fairly, and Impartially, Aug. 
1995, at 132-136 [hereinafter Georgia]-, Oregon, at 3.

"̂ See Georgia, at 33; Michigan, at 49.

°Florida 1, at 59-60.



The cumulative effect of this differential treatment of 
non-whites at each level of discretionary decisionmaking has 
repeatedly been determined to be substantial. See e.g., Iowa, 
at 187 ("the combined effect [of racial bias] during 
processing in the court system is not slight"); Florida I, at 73; 
Washington, at 4-5.

2. Racism, both overt and unconscious, affects 
discretionary charging and sentencing 
decisions

In particular, state and federal task forces consistently 
identified that differences in prosecutorial charging decisions 
could only be accounted for by race.^  ̂ For example, 
Michigan’s task force found that racial and ethnic minorities 
in the Detroit metropolitan area are routinely charged with 
felonies for certain conduct that, when engaged in by white 
offenders, results in misdemeanor charges. Michigan, at 51. 
Similarly, the Massachusetts Commission reported that 
available data disclosed a "disturbing pattern": young black 
males were more likely to receive terms of incarceration 
than similarly situated white counterparts. Massachusetts 
Supreme Judicial Court Commission to Study Racial and 
Ethnic Bias in the Courts, Final Report, Sept. 1994, at 95 
[hereinafter Massachusetts].

In New York, Blacks and Hispanics were found to be 
treated more harshly than whites^^ especially in majority- 
white counties. For example, in suburban, majority-white 
Westchester County, minority felony defendants with prior 
criminal records had a 52% chance of being incarcerated

^̂ See, e.g.. State of Iowa Equality in the Courts Task Force, Final 
Report, Feb. 1993, at 174,179-80,187 [hereinafter/owa]. Florida I, 66- 
67; Washington, at 5, 51.

*^For example, in misdemeanor cases, whites were assessed fines 
while Blacks and Hispanics with similar backgrounds were sentenced 
to jail for similar misdemeanors. New York, at 41.



8

while similarly situated white felony defendants had only a 
39% chance of being incarcerated. New York, at 41, citing 
New York State Division of Criminal Justice Services study. 
See also Washington, at 54 ("Longer periods of confinement 
were recommended for Black offenders than for White 
offenders, even after we took into account legally relevant 
factors").

This disparate treatment has been acknowledged by 
prosecutors and judges as well. For example, a federal judge 
testified to the influence of unconscious racism on 
discretionary charging and sentencing decisions in the 
following terms:

Fm not suggesting deliberate discrimination by the 
U.S. Attorney, but I have seen throughout my years 
as a judge a different view brought to cases where a 
prosecutor may feel there is not something worth 
saving . . . .  I think there is perhaps a natural 
tendency to think with the white male, "Here’s a 
young person with no prior problems with the law. 
We don’t want to destroy his future." There may not 
be the same feeling for the black male, just a sense 
that he is not going to go far anyway. I don’t think 
this is deliberate discrimination, but it results in more 
of a tendency to find a way out for the white male 
than the black male.^^

To similar effect were the observations of a state judge:

[Ajgain, it’s this institutional-it’s the subtle, it’s the 
unconscious kind of racism. There was an incident 
that happened in Palm Springs following a sentencing 
seminar sponsored [by] either CJA or CJER. And 
judges were in the pool relaxing afterwards, and 
there was a conversation going on about sentencing 
and talking about what we had discussed earlier. 
And among two of the judges, they said, well, they

' D.C. Circuit, at 165.



had decided that for Blacks, the sentencing option of 
jail and longer jail sentences was the more 
appropriate sentence than for Whites or for Asians, 
because everybody knew there wasn’t any social 
stigma attached to Blacks going to jail, because, first 
of all, they live in communities where everybody was 
Black, and so they didn’t have any reason to be 
embarrassed, so if you just gave a little jail time, it 
would be all right.”

Moreover, a District of Columbia federal prosecutor opined 
that disparate treatment occurred less innocently:

I think the judges are less harsh with a white 
defendant as opposed to a black defendant.
A judge will be lenient to a white defendant 
and when a black man commits the same 
offense, they will send him away. It is 
appalling. They may see a white defendant 
and they connect.”

That such bias stems from a government actor’s unstated 
and inarticulable intuition that a defendant deserves 
different treatment because of his race hardly makes it less 
of an offense to bedrock equal protection principles.

The task forces’ sincere efforts at self-scrutiny have 
consistently yielded this alarming conclusion: that racial bias 
in the administration of justice is pervasive and persistent 
and threatens both the appearance and reality of 
evenhanded justice.

California Judicial Council Advisory Committee on Racial and 
Ethnic Bias in the Courts, 1991-1992 Public Hearings, at 87 (1993).

”  D.C. Circuit, at 162. Another prosecutor told the D.C. Circuit 
task force, "The judges are predominately a white bunch and they 
tune into factors that are familiar to them personally." D. C. Circuit, 
at 214.



10

B. Eliminating racial bias, both overt and 
unconscious, from judicial proceedings 
requires that courts take specific steps to 
identify instances in which bias may influence 
decision-making and to prevent it from doing 
so

A second consistent theme of these judicially 
endorsed reports is also clear: unless courts act more 
vigilantly, racial bias will never be eradicated from the 
administration of justice and public confidence will wane 
further. One task force stated, "[Pjublic confidence in our 
system of justice must become and remain a priority for each 
member of that system." Michigan, at 23. See also 
Massachusetts, at 4.

Only by acknowledging that bias persists and by 
taking the necessary steps to deal with it will courts dispel 
the notion held by some members of the public that the 
courts are tolerant of race discrimination. Undertaking this 
challenge is essential because:

Like any relationship, the relationship between the 
courts and the communities around them needs 
attention and care to ensure that each party 
understands and trusts the other. By giving more 
attention to these relationships, the courts would not 
only better serve the community, they would also 
make their own jobs easier by enhancing the 
community’s confidence in the administration of
justice.̂ ®

1. Despite the courts’ current efforts to 
eradicate racial bias, overt and unconscious racism 
on the part of law enforcement actors persists

The task forces found that for minorities, overt 
racism on the part of law enforcement aetors is a fact of life.

' D.C. Circuit, at 5-6.



11

An instance of such bias helped to bring about the creation 
of the Massachusetts Commission: In August 1988, during 
a criminal session of the Suffolk Superior Court, Assistant 
Attorney General Thomas H. Brewer, an African American, 
attempted to gain access to a part of the courtroom that he 
was entitled to enter. However, because of his race, two 
court officers mistook the Assistant Attorney General for a 
defendant and physically attempted to bar him from the 
courtroom.^’

Such incidents by law enforcement actors sadly are 
not uncommon and were reported to other commissions.^® 
Additionally, judges continue to exhibit overt racism in the 
courtroom. The Oregon task force was disturbed by an 
incident in which a Mexican-American defendant appeared 
before a judge on the issue of whether the defendant’s 
diversion program should be revoked for nonpayment of 
diversion fees. In open court, the judge admonished the 
defendant as follows:

I’m not going to let him just hold out money.
And I know just dam good and well where 
that money from [his job] went. I’ll bet a 
good part of it went down South, and that’s 
his business, except that he’s got this 
obligation here.

’^Doris Wong, Shannon Office to Probe Alleged Court Assault, The 
Boston Globe, Dec. 13, 1988, at 29.

‘T or example, an African-American attorney related his 
experience to the New York task force;

In criminal court in New York County I was grabbed 
from behind in a chokehold around the throat by a 
court officer who assumed that I was a defendant 
approaching too close to [a judge] who had 
motioned me to approach the bench.

New York, at 88.



12

Oregon, at 1.

That such brazen, on the record comments are 
exceptional, however, should not blind courts to the extent 
that unconscious racism based upon racial stereotypes and 
cultural misunderstandings also permeates the administration 
of justice. The Georgia task force noted that "there are 
incidences of bias which appear to result from unintentional 
conduct or conduct resulting from a lack of awareness." 
Georgia, at 9. See also, Oregon, at 2.

Indeed, the elusiveness of this subtle or even 
unconscious racism makes it in one respect more 
problematic than overt racism: without heightened
attentiveness, it is likely to go detected in any individual 
case. As one report put it, "Like the presence of poison in 
food or certain pollutants in the air, bias in decision-making 
may not always be readily detectible by the unwary." Florida 
I, at 5.

Ongoing, unchecked racial bias mocks the idea that 
justice is dispensed equally to all under the law. Not 
surprisingly, incidents recounted in the reports explain why 
too many Americans distrust the fairness of our courts. As 
this Court has repeatedly acknowledged, racial bias 
fundamentally undermines the integrity of the criminal 
justice system in violation of the bedrock guarantee of equal 
treatment embodied in the Fifth and Fourteenth 
Amendments. See e.g. Strauder v. West Virginia, 100 U.S. 303 
(1880); Batson v. Kentucky, 476 U.S. 79 (1986); Edmonson v. 
Leesville Concrete Co., 500 U.S. 614 (1991).

While existing mechanisms may be relied upon in 
cases where race discrimination is overt, the compelling 
evidence cited above require courts to develop appropriate 
solutions to reach those circumstances in which racism takes 
more subtle form. The resolution of such problems "will 
require an extraordinary intellect, unswerving compassion 
and most importantly, a level of candor that will engender 
respect for any decision the Court might reach." New Jersey, 
at ii.



13

The task forces identified tools to deal with the more 
subtle bias that has been found to infect discretionaiy 
decisionmaking: adoption of systems for collection of 
relevant data necessaiy for monitoring discretionary 
decisions, the promulgation of guidelines to channel the 
exercise of discretion to avoid bias, and development of new 
remedies for addressing bias. As the Florida commission 
found, there is a "need for fundamental reforms to eradicate 
the stain of racism from the garments of justice." Florida II, 
at viii.

2. Adequate information must be collected, 
maintained and disclosed when necessary in order to 
determine the existence or non-occurrence of bias- 
influenced decisionmaking

During the course of their investigations, the task 
forces discovered that a major roadblock to determining 
whether bias existed in the criminal justice system was the 
difficulty of gathering the necessaiy data. They were 
hampered by the lack of systematic institutional mechanisms 
for compiling bias data and were often forced to conduct 
their own studies, which usually required considerable 
financial resources. See, e.g., Iowa, at 188; Florida II, at 60. 
Much of the information analyzed by the court task forces 
came from District Attorneys’ Offices.^’

Since prosecutors’ offices already possess access to 
the information needed to make a comprehensive study of 
bias, the task forces concluded that these offices should 
assume the responsibility for gathering much of the

’’Law enforcement officers consulted cooperatively with the task 
forces in a variety of ways, including releasing an array of information 
alx)ut their internal practices. See Florida II, at 46; Massachusetts, at 
93-4 (District Attorneys’ offices provided the most useful data on 
sentencing disparities because their files were the most complete). 
The cooperation of the prosecutors’ offices was essential because 
relevant information was not always available to the public. See D.C. 
Circuit, at 200.



14

information crucial to monitoring bias. Data regarding 
exercise of prosecutorial discretion would then be readily 
available.^

The task forces also recommended that bias data be 
made routinely available to all concerned, including the 
public, see Iowa, at 190 (any patterns of racially associated 
disparities should be publicly disseminated, and specifically 
brought to the attention of the Districts where the disparities 
occurred); New York, at 43 (sentencing statistics concerning 
the race of the victim, defendant and complainant along with 
case outcome should be maintained and published by the 
Unified Court System in cooperation with the New York 
State Department of Criminal Justice Services), and that 
periodic studies to determine the existence or influence of 
racial bias be undertaken. See Massachusetts, at 24; Georgia, 
at 165; New Jersey, at 133.

3. Based upon the availability of such reliable 
information, the exercise of discretion can be 
monitored so as to identify and eliminate 
discriminatory actions in the criminal justice process

Reliable data must be disclosed when necessary to 
avoid the influence of bias because "[t]he need for 
discretion, while compelling, must be balanced against the 
potential for abuse. The need to ensure that the charging 
decision is free from racial and ethnic bias must be taken 
into account." Oregon, at 35. See also Florida I, at 77. Only

“ See, e.g., Iowa, at 190 (county attorney offices should keep 
records of the charges on initial arrest, the charges ultimately filed, 
the arrests they chose not to prosecute, the reasons they chose not to 
prosecute, and the race and gender of the alleged perpetrators); 
Massachusetts, at 24, 95 (District Attorney’s office should be 
responsible for coUecting data on case processing between the police, 
the department of probation, and other law enforcement agencies); 
Oregon, at 35 ("District attorneys should be required to collect and 
report to the Criminal Justice Cbuncil data on the variable of race in 
all charging decisions").



15

by having data available will it be possible to monitor 
effectively the influence of bias in the discharge of the 
official responsibilities of the police, the prosecution and the 
judiciary. See Massachusetts, at 24.

Traditionally, prosecutorial discretion has been 
regarded not only as broad but as virtually immune from 
external scrutiny based upon the assumption that adequate 
internal mechanisms are in place to deal with overt 
discrimination. Time and again, the task forces concluded 
that the traditional approach, leaving the exercise of 
discretion to internal monitoring only, was inadequate to 
prevent subtle forms of discrimination.

The task forces concluded that new monitoring 
mechanisms are sorely need ed ,an d  that the monitoring 
of discretionaiy decisionmaking encoura^s awareness of 
racial bias, thereby helping to eradicate it.

The task forces also concluded that traditional 
remedies for race discrimination are often ineffective. For 
example, many concluded that trial courts too often fail to 
police the discriminatory exercise of peremptory challenges 
by prosecutors. Thus, one task force recommends allowing 
appellate courts to review Batson issues de novo. Georgia, at 
33. Similarly, the Michigan task force expressed alarm after 
it was unable to find even one reported Michigan decision 
in which a Batson claim was found meritorious. Michigan,

^'These include promulgating regulations to channel discretion, 
conditioning funding to prosecutor’s offices on the requirement that 
their offices eliminate the discriminatory effects of their decisions, 
requiring the submission of reports detailing discretionaiy practices 
for review, and creating a state-wide database which includes 
information about sentencing and charging decisions for outside 
monitoring. See Oregon, at 35, 44; Georgia, at 31; Florida I, at 66-67, 
76; Florida II, at 44; Massachusetts, at 97; New York, at 43; Iowa, at 
188; Michigan, at 55.

See Florida II, at 43-44; Georgia, at 166-67.



16

at 49. Thus, it recommended that trial judges be encouraged 
to implement the Batson standard on their own initiative in 
any juiy selection process in which peremptory challenges 
appear to be racially motivated. Id. See also New York, at 
59 ("Judges should exercise heightened scrutiny to ensure 
that peremptory challenges are not used improperly").

II. THE DISCRETIONARY DECISIONS OF FEDERAL
PROSECUTORS WHETHER TO EXERT FEDERAL 
CRIMINAL JURISDICTION OVER NARCOTICS 
OFFENSES MUST BE SUBJECT TO EFFECTIVE 
MONITORING TO ENSURE THAT RACIAL BIAS 
DOES NOT INFLUENCE THEM

Prosecutorial discretion contributes to the widening 
gulf between juvenile and adult African-Americans’ and 
other offenders’ incarceration rates. While "the total 
number of white juveniles brought to court on drug charges 
in 1990 exceeded the total number of blacks by 6,300 . . . , 
a far greater number of white youths were sent home 
without being tried, were released to drug counseling 
programs, or were placed on probation. Consequently, 2,200 
more blacks than whites ended up on correctional 
facilities."^ Figures for adult crack and cocaine

^Ron Harris, Hand o f Punishment Falls Heavily on Black Youth, 
L.A. Times, August 24, 1993 at 7 [hereinafter Punishment], Other 
data shows that drug abuse is centered largely in the white 
community. African-Americans make up 12% of the U.S. population, 
13% of all monthly drug users, but represent 35% of those arrested 
for drug possession, 55% of those convicted of drug possession, and 
74% of those sentenced to prison for drug possession. The 
Sentencing Project, Young Black Americans and the Criminal Justice 
System: Five Years Later, Oct. 1995. See also Michael Tonry, Malign 
Neglect: Race, Crime, and Punishment in America, 1995, at 49. 
("Blacks are arrested and confined in numbers grossly out of hne with 
their use or sale of drugs").



17

prosecutions are similar.^

A recent survey of prosecutions for crack cocaine 
offenses conducted by the Los Angeles Times revealed that 
not a single white offender had been convicted of a crack 
cocaine offense in the federal courts serving the Los Angeles 
metropolitan area since 1986, despite the fact that whites 
comprise a majority of crack users. Dan Weikel, War on 
Crack Targets Minorities Over Whites, L.A. Times, May 21, 
1995, quoted in The Sentencing Project, at 10 (1995). 
Moreover, according to a study by Richard Berk, between 
1990 and 1992, over 200 white crack dealers were prosecuted 
by the state authorities in Los Angeles, a period during 
which the U.S. Attorney’s office prosecuted not one white 
defendant for crack. Richard Berk, Preliminary Data on 
Race and Crack Charging Practices in Los Angeles, 6 Fed. 
Sentencing Rep. 36 (1993).

Just as the existence of a pattern of employing 
peremptory challenges with the result of removing Black or 
other minority jurors from panels suggests the possibility 
that this aspect of prosecutorial discretion may be influenced 
by racial bias, and requires the carefully delineated judicial 
remedy created by this Court in Batson, so too do the data 
summarized above support — indeed compel -- the 
conclusion that a similar judicial remedy must be available 
to preserve the integrity of the federal criminal justice 
system. Unless the potential for discriminatory decision­
making is addressed, public support for and confidence in 
federal criminal procedures will be eroded by the suspicion

‘̂*In 1989, former Drug Czar William Bennett described the 
typical cocaine user as a "white, male, high school graduate, employed 
full time and living in a small metropolitan area or suburb." Sam 
Meddis, Whites, Not Blacks, A t The Core of Drug Crisis, USA Today, 
Dec. 20,1989, at 11 A. The Justice Department offered the following 
profile of crack users in the United States during 1991: 49.9% of 
crack users are White, 35.9% are Black, and 14.2% are Hispanic. 
U.S. Department of Justice, Bureau of Justice Statistics, Drugs, Crime, 
and the Justice System, Dec. 1992, at 28.



18

that dmg laws generally, and the "cocaine base" laws 
specifically, are being administered in a racially 
discriminatory manner. That is surely the view of a growing 
number of law enforcement officials^ and judges^ who 
have been on the front lines throughout the "War on Drugs."

^ Former Atlanta Police Chief Eldrin BeU remarked recently:

I wonder if because it is blacks . . . who are going to 
jail in massive numbers, whether we . . . care as 
much? If we started to put white America in jail at 
the same rate that we’re putting black America in 
jail, I wonder whether our collective feelings would 
be the same, or would we be putting pressure on the 
president and our elected officials not to lock up 
America, but to save America?

Nkechi Taifa, Laying Down the Law, Race by Race, Legal Times, Oct.
10, 1994, at S36.

Steven Madison, an Assistant U.S. Attorney in Los Angeles, 
admits that minorities are targeted in crack cocaine arrests and 
prosecutions. He stated that while crack is sold and used in middle 
and upper class communities, law enforcement focuses on crack 
cocaine dealers in minority neighborhoods because, as a result of 
limited resources, "we went where the brush fires were." Sam 
Meddis, supra n.24, at HA.

“  A  federal judge remarked recently:

As sad as it may sound, and as much as the Court 
feels discomfort in pointing it out, if young white 
males were being incarcerated at the same rate as 
young black males, the statute would have been 
amended long ago.

United States v. Clary, 846 F. Supp. 768, 792 (E.D. Mo. 1994).



19

III. THE GOVERNMENT’S VIEW THAT DISCOVERY 
IS NOT PERMISSIBLE UNTIL THE DEFENDANT 
MAKES A SUBSTANTIAL THRESHOLD 
SHOWING OF SELECTIVE PROSECLTTON, IF 
A C C E P T E D ,  WOULD I M P O S E  AN 
UNNECESSARY AND CRIPPLING BURDEN 
UPON VINDICATION OF EQUAL PROTECTION 
CLAIMS

Despite the swirling controversy surrounding federal 
drug prosecutions as well as the contemporary evidence that 
racial bias continues to influence charging decisions yet is 
difficult to ferret out, the government seeks a rule which, if 
adopted, would render it immune from any discovery in 
nearly all selective prosecution cases, regardless of their 
merit. The Court should reject this approach because it is 
based upon a false premise that overprotects the prosecution 
function and would impose an unrealistic and crippling 
burden of production upon defendants.

A. The "substantial threshold" rule overprotects 
the government’s interest in preserving broad 
discretionary prosecution powers.

The government asks the Court to hold that "judicial 
inquiry into a prosecutor’s reasons for bringing a prosecution 
should not even begin unless there is a substantial and 
concrete basis for suspecting unconstitutional conduct." U.S. 
Brief at 19. Two justifications are advanced in support: "[b]y 
requiring a significant threshold showing, courts may avoid 
unwarranted and highly intrusive inquiries into a 
prosecutor’s judgment . . .  [as well as] prevent the needless 
diversion of government and judicial resources from the 
adjudication of the criminal case to the disposition of the 
selective prosecution motion." Id. at 20. Neither justifies 
such a demanding standard.

To acknowledge that the prosecutor enjoys spacious 
discretion in deciding whom to prosecute is also to recognize 
that such power "is the power to control and destroy



20

people’s lives."^ Justice Jackson observed that this broad 
power of choice held within it the power to abuse "some 
group of unpopular persons . . . Thus, it is the very 
breadth of such power that creates the potential for unequal 
treatment.

The risk of unequal treatment created by 
standardless discretion is troubling not only as a 
thrcat to due process but also in its own right as well. 
Giving prosecutors the power to invoke or deny 
punishment at their discretion raises the prospect 
that society’s most fundamental sanctions will be 
imposed arbitrarily and capriciously and that the least 
favored members of the community ~ racial and 
ethnic minorities, social outcasts, the poor -  will be 
treated most harshly.^

Prosecutors are clothed with such broad powers for 
a noble purpose -  to enable them to seek the "equitable 
objective of individualized justice" within a system of limited 
resources.^ But any time the defendant’s race enters the 
calculus, this high purpose is defeated, and the justification 
for deferential judicial oversight vanishes.

When a citizen makes a colorable showing that race 
likely influenced the prosecutor’s decision to file the pending 
charge, and claims that she needs access to government files 
to generate additional proof of invidious discrimination, the 
Court should require nothing more. Once an honest

Bennett L. Gershman, Prosecutorial Misconduct, at 4-7 
(1993)[hereinafter Gershman].

“  Robert Jackson, The Federal Prosecutor, 31 J.Crim.L. & Grim. 
3, 5 (1940).

James Vorenberg, Decent Restraint o f Prosecutorial Discretion, 
94 Harv. L. Rev. 1521, 1555 (1981)[hereinafter Vorenberg].

Gershman, at 4-6.



21

question is raised about the vety legitimacy of the 
proceeding, it is in the government’s interest as much as the 
defendant’s to have the issue resolved conclusively by a 
neutral magistrate based upon all relevant information. 
Requiring the defendant to show more serves no purpose 
other than to suggest that only citizens who are particularly 
nimble at detecting bias enjoy a meaningful opportunity to 
be heard.

B. Such a rule is based upon a false premise: 
that the evidence supporting such a claim is 
generally and reasonably available

Even though "the fate of those accused of crime is 
determined by prosecutors . . . out of public view ~ in the 
hallways of the courthouse, in the prosecutors’ offices, or on 
the telephone, the government argues that the evidence 
necessary to demonstrate selective prosecution is generally 
available from sources other than the government’s files. 
U.S. Br. at 26-27. Thus, it is suggested, the defense is not 
unfairly burdened by a substantial threshold rule.

This has surely not been our experience, nor that of 
other respected students of the issue. Former federal 
prosecutor Gershman has written that "proving improper 
motivation. . .  is extremely difficult, and tends to explain the 
infrequency with which" selective prosecution claims are 
advanced.^^ He believes that discovery should follow once 
"a colorable entitlement or plausible justification" is 
demonstrated.^^ Former Department of Justice Official 
Vorenberg agrees:

. . . the problems involved in proving that a
prosecutor had an impermissible motive or personal

Vorenberg, at 1522. 

Gershman, at 4-8.

33 Id. at 4-26.4.



22

animus are enormous. Rarely will a prosecutor 
explicitly signal improper motives. Unless he does, 
the defendant must try to draw a clear inference of 
discrimination by comparing his case with those of 
persons who were not charged, . . . .^

The cases upon which the government relies prove 
only that in certain unusual circumstances, the defendant 
may have the ability to present considerable evidence of 
similarly situated persons who were not prosecuted, as well 
as some evidence of illicit motive. They hardly make the 
case for a hard and fast heightened showing in every case. 
For example, in United States v. Hoover, 727 F.2d 387 (5th 
Cir. 1984), Hoover was one of three of nearly 300 air traffic 
controllers criminally prosecuted after going out on strike. 
He was able to show the pool of similarly situated persons 
easily because they all belonged to the same union and he 
was their leader. Similarly, in United States v. Hazel, 696 
F.2d 473 (6th Cir. 1983), the defendant was able to show 
other similarly situated persons who were not prosecuted 
because they were members of a tax revolt group to which 
he belonged.

More often, however, and as in this case, citizens 
claiming selective prosecution have no special or ready 
access to the identity of similarly situated persons whom 
prosecuting authorities chose not to prosecute for similar 
offenses. And where the basis of the motion is racial 
discrimination, it is extremely rare for public court files to 
contain information on the defendant’s race. As the task 
forces found, generation of a data base with the identity of 
such persons that includes their race and ethnic identity is 
an enormously time-consuming and expensive proposition 
when undertaken without the cooperation of the prosecuting 
attorneys’ office. Thus, there is little substance to the

Vorenberg, at 1542.



23

government’s assurance that a heightened burden would not 
foreclose the assertions of such claims.^^

C. The "substantial threshold" standard would 
impose a crippling burden of production

Indeed, the government’s argument bears an 
uncomfortable resemblance to the supporting pillars of the 
now discredited rule of Swain v. Alabama, 380 U.S. 202 
(1965): The government insists that prosecutors are
presumed to act in good faith and thus should not be subject 
even to judicial inquiry into illicit motive in the absence of 
concrete evidence showing otherwise.^ Just as unfettered 
exercise of the peremptory challenge was good for the cause 
of justice because it gave the government and defense 
appropriately broad leeway to remove biased jurors who 
might escape for-cause removal, the government claims 
similarly broad prosecutorial discretion best assures that 
limited resources will be used in the most appropriate 
cases?’ Courts are ill-equipped, in any event, the argument 
continues, to review such decisions, and requiring a 
prosecutor to explain why she is prosecuting a particular 
case, like having her explain why a peremptory strike was 
used to eliminate a particular juror, will bring about delay

In Batson v. Kentucky, 476 U.S. 79 (1986), the United States 
advanced a similar argument in support of retention of the rule of 
Swain v. Alabama. See Batson v. Kentucky, No. 84-6263, Brief of 
United States As Amicus Curiae Supporting Affirmance at 26- 
27) ("We also find unpersuasive the argument that Swain makes it 
unduly difficult to demonstrate impermissible use of peremptory 
challenges even when such abusive practices are actuaOy going on. . 
. . Moreover, public defender’s offices and defense counsel’s 
organizations are well situated to collect the requisite statistics.") As 
it did in Batson, the Court should reject such assurances as 
unrealistic.

Swain, at 222; U.S. Br. at 16, 19.

”  Swain, at 221; U.S. Br. at 17.



24

and deflect limited resources from the prosecution of law 
breakers.^

If the Court accepts the government’s position, and 
predicates access to even non-privileged information on 
defendants’ making a robust showing, defendants will be 
denied meaningful judicial determination of their Equal 
Protection claims unless they can first pull together a 
credible composite of selective enforcement from other 
sources, a task that in many cases will require painstaking 
review of hundreds of court files, consultation with scores of 
other attorneys, and pursuing other sources sufficient to 
generate a body of similarly situated persons not prosecuted.

Such a burden significantly exceeds that which the 
Court determined, in Batson v. Kentucky, 476 U.S. 79, 92 
n.l7 (1986), to be crippling. Justice Powell described such 
a burden through examples from lower court cases:

The lower courts have noted the practical difficulties 
of proving that the State systematically has exercised 
peremptoiy challenges to exclude blacks from the 
jury on account of race. As the Court of Appeals for 
the Fifth Circuit observed, the defendant would have 
to investigate, over a number of cases, the race of 
persons tried in the particular jurisdiction, the racial 
composition of the venire and petit jury, and the 
manner in which both parties exercised their 
peremptory challenges, [citation omitted] The court 
believed this burden to be "most difficult" to meet. 
In jurisdictions where court records do not reflect the 
jurors’ race and where voir dire proceedings are not 

transcribed, the burden would be insurmountable, [citation 
omitted]

We now know that the Swain rule was able to shelter 
for years the intentional discriminatory conduct of certain

Swain, at 221-22; U.S. Br. at 17.



25

prosecutors.^® Adoption of a similar standard here would 
surely generate similar sorry results.

rv. THE DISTRICT COURT’S DISCOVERY ORDER
APPROPRIATELY BALANCED EACH PARTY’S
LEGITIMATE INTERESTS

The district court ordered discovery in this case only 
after deliberate and thorough consideration both of the 
respondent’s showing that a significant statistical disparity 
existed in the race of defendants prosecuted in federal court 
for crack distribution violations and of the government’s 
explanations for that disparity.

With their motion for discovery, respondents 
introduced evidence showing a pattern of prosecutions which 
suggested that race was a significant charging factor. 
Respondents demonstrated that all 24 crack cocaine cases 
prosecuted by the government and closed by the Federal 
Public Defender’s Office in 1991 involved black defendants.

At the hearing on the discovery motion, the district 
judge expressed concern that the "government hasn’t offered 
any explanation at all as to why . . . persons . . .being 
brought . . .  to Federal court for these drug offenses . . .  all 
. . . are black."‘“ The judge offered the government an

See e.g., Jones v. Davis, 835 F.2d 835 (11th Cir. 1988)(blacks 
systematically excluded from petit jury service in Mobile County, 
Alabama over significant period of time by state peremptory strikes); 
Love V. Jones, 923 F.2d 816 (11th Cir. 1991)(blacks systematically 
excluded from petit jury service in Madison County, Alabama via 
state peremptory challenges); Horton v. Zant, 941 F.2d 1449 (11th 
Cir. 1991) (blacks systematically excluded from petit jury service in 8 
Georgia counties from 1974-81 via peremptory challenge); Miller v. 
Lockhart, 65 F.3d 676 (8th Cir. 1995)(blacks systematically excluded 
from two Arkansas county petit juries from 1970-75 by state’s use of 
peremptory strikes).

'“Hearing of Sept. 8, 1992, at 8.



26

opportunity to provide an explanation. However, at the 
hearing, the assistant United States Attorney was unable to 
offer any explanation for the disparity, stating, "I can’t 
explain why the public defender’s office has only 
encountered black defendants [in] crack cocaine cases--I 
would have no explanation for that."'*̂

In the face of the government’s complete inability to 
explain the statistical disparity, the district judge ordered 
limited discovery, explaining that "what the Court wants to 
know is whether or not there is any criteria in deciding 
which of these cases will be filed in state court versus 
Federal court and if so, what is that criteria."''^

To determine the appropriate scope of the discovery 
order, the Court took into account the government’s 
assertion that one criteria it used for deciding whether to file 
in federal rather than state court was the existence of a joint 
federal/state investigation. Government counsel explained 
that a joint federal/state investigation is initiated when there 
is use of a firearm in connection with a narcotics trafficking 
violation.”*̂ In response to this explanation, the judge 
directed discovery of four specifie non-privileged items: a list 
of all cases from 1989-1992 in which the government charged 
both cocaine base offenses and firearms offenses, the race of 
defendants in each of these cases, whether each case was 
investigated by federal, state or joint law enforcement 
authorities, and an explanation of the criteria used by the 
United States in deciding whether to bring cocaine base 
cases in federal court.

In its motion for reconsideration of the discovery 
order, the government offered some of its criteria for 
prosecuting cases in federal as opposed to state court. As

^̂ Id. at 9. 

26-27

43Id. at 20-21.



27

part of its explanation, the government submitted the 
declaration of the Chief of the Criminal Complaints Section 
of the U.S. Attorney’s Office which stated that the decision 
to bring the instant case in federal court was made because 
the case met the general criteria the government applies to 
all crack cases. However, the purported general criteria 
simply described several aspects of the instant case. Counsel 
for the government later suggested that the official general 
criteria applied to all crack cases were in fact the same as 
the criteria present in the instant case.“̂

In response to the government’s explanation, 
respondents argued that a number of the defendants did not 
satisfy the suggested criteria.'*  ̂ Moreover, respondents 
introduced evidence demonstrating that white crack cocaine 
dealers exist and are prosecuted in state court only.'’*

After carefully weighing all the evidence, the district 
judge found the explanations offered by the government

'’'‘Government’s Motion for Reconsideration, at 24-25; Hearing of 
Dec. 4, 1992, at 6-8.

'’̂ Hearing of Dec. 4 1992, at 26

'’̂ First, the respondents introduced an affidavit of defense 
attorney Reed, Director of the Criminal Courts Bar Association 
Indigent Defense Panel. The Indigent Defense Panel handles more 
state court criminal cases than any other association within Los 
Angeles County and is composed of over two hundred defense 
lawyers. Reed attested that as Director of the Indigent Defense 
Panel, he speaks to many state court judges, prosecutors, and defense 
attorneys who state that there are many crack cocaine sale cases 
prosecuted in state court that involve racial groups other than blacks. 
Hearing of Dec. 4,1992, at 28-29. Second, defense counsel O’Connor 
submitted an affidavit stating that she had spoken to Chris 
Fernandez, the intake coordinator at Impact House in Pasadena, 
California, who stated that in his experience dealing with the 
treatment of cocaine base addiction, there are equal numbers of 
minority and Caucasian users and dealers of crack.



28

inadequate, concluding that the government had failed to 
make clear the criteria, "if there is any criteria, for bringing 
this case and others like it in Federal court."'*̂  Thus, the 
court affirmed her discovery order.

The district judge’s approach to ordering the limited 
discovery in this case was cautious, careful and reasonable. 
First, the judge, confronted with unrebutted evidence of a 
pattern of racial prosecutions, gave the government a full 
and fair opportunity to offer an explanation. Only after the 
government was unable to offer a single explanation for the 
racial disparity did the judge order limited discovery of 
nonpriviledged relevant information. This order is 
structured in a way that limits its reach to evidence directly 
relevant to issues that the government articulated were its 
criteria for bringing crack cocaine cases in federal as 
opposed to state court.

The Court should view this order as a sound 
resolution of this fact-intensive dispute. Because 
respondents have set forth a colorable showing, and "without 
discovery, the contention that ’other similarly situated’ have 
not been prosecuted . . . may be impossible to show,""** the 
lower court judgment should be affirmed.

’Hearing of Jan. 5, 1993, at 3.

^United States v. Armstrong, 48 F.3d 1508,1521 (9th Cir. 1995)(en 
ha«c)(Wallace, C.J., concurring).



29

CONCLUSION

Amici curiae respectfully request that the Court 
affirm the judgment of the Court of Appeals.

Respectfully submitted.

Steven R. Shapiro Elaine R. Jones
American Civil Theodore M. Shaw
Liberties Union * George H. Kendall
Foundation L. Song Richardson

132 West 43 Street NAACP Legal Defense
New York, NY 10036 & Educational Fund,
(212) 944-9800 Inc.

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Amici Curiae

* Counsel of Record

Dated: January 16, 1996



APPENDIX



APPENDIX A

The state and federal court task forces were charged 
with determining whether racial and ethnic bias still affects 
the adminisration of justice. It is impossible to capture the 
thoroughness of the research conducted by each task force 
and the breadth of their findings and recommendations. 
However, to lend some context in which to understand the 
task force reports, below is a brief description of the 
methodology employed by each state and federal court task 
force on race and ethnic bias in the courts and excerpts from 
each study’s findings and recommendations. In addition, 
where the information was available, a brief history of the 
task force’s creation is included.

COMMITTEE ON RACE AND ETHNICITY TO THE D.C. 
CIRCUIT TASK FORCE ON GENDER, RACE AND 
ETHNIC BIAS, DRAFT FINAL REPORT, JAN. 1995

The Task Force was created in 1990 by the D.C. 
Circuit Judicial Council. The Task Force was created 
because, while efforts to explore race and ethnicity were 
underway at the state and local levels, there was growing 
recognition that these issues merited attention within the 
federal judicial system as well.

The Task Force interviewed judges on the Circuit to 
obtain their experiences and observations relating to gender, 
race, and ethnicity. It interviewed 80% of the trial judges, 
and 3 appellate judges of the Circuit. Judicial interviews 
were both anonymous and voluntary. Two appellate judges 
submitted written comments. The task force also conducted 
focus groups with practicing attorneys, community 
representatives, and courthouse personnel.

RECOMMENDATIONS

The Federal Judicial Center, or another appropriate body, 
should study the results of litigation (such as employment



2a

discrimination cases) that involve issues of race, ethnicity, or 
gender and that affect a significant number of racial and 
ethnic minorities, through research controlling for the 
gender, race or ethnicity of the parties and attorneys in such 
cases.

FLORIDA SUPREME COURT RACIAL AND ETHNIC 
BIAS STUDY COMMISSION, WHERE THE IN.IURED 
FLY FOR .lUSTICE; REFORMING PRACTICES WHICH 
IMPEDE THE DISPENSATION OF JUSTICE TO 
MINORITIES IN FLORIDA. DEC. 11, 1990

The Commission was created on December 11,1989 
by the Chief Justice. It was charged with assessing whether 
race affected the dispensation of justice and with developing 
longterm strategies to eradicate any vestiges of 
discrimination.

The Commission developed the findings and 
recommendations contained in its report after analyzing 
information from several different sources. First, the 
Commission held public hearings in every region of the 
state. Second, the Commission retained leading researchers 
from Florida’s universities and nationally recognized experts 
to conduct studies and to assist it in formulating the findings 
and recommendations contained in the report.

FINDINGS:

Extensive evidence suggests that minorities are too often 
subjected to the threat of abuse and brutality by law 
enforcement organizations. Survey responses suggest that 
African-Americans and Hispanic individuals are stopped and 
detained more frequently than a non-minority would be 
under similar circumstances and are treated with less respect 
and more unnecessary force than are their white 
counterparts.



3a

Minority juveniles are being treated more harshly than non­
minority juveniles at almost all stages of the juvenile justice 
system, including: arrest; referral for formal processing; 
transfer to the adult criminal justice ^stem; secure detention 
prior to adjudication; and commitment to traditional state- 
run facilities.

Opportunities for informal processing and diversion are not 
equally accessible to minority juveniles. The deeper the 
penetration of the juvenile justice system towards "deep-end" 
commitment, the greater the overrepresentation of minority 
juveniles.

The differential treatment of minority juveniles results, at 
least in part, from racial and ethnic bias on the part of 
enough individual police officers, intake workers, 
prosecutors, and judges, to make the system operate as if it 
intended to discriminate against minorities. It results as well 
from bias in institutional policies, structures, and practices.

RECOMMENDATIONS:

Police practices, including field adjustments, relating to law 
enforcement interaction with juveniles should be recorded 
for supervisory review and monitoring to determine whether 
and how race or ethnicity has entered into arrest and 
disposition decisions by Florida’s law enforcement personnel.

The State should mandate the establishment of procedures, 
in each of the agencies comprising the juvenile justice 
system, to encourage and provide means for reporting, 
investigating, and responding to professionals whose 
decisions appear to have been influenced by racial or ethnic 
bias.



4a

FLORIDA SUPREME COURT RACIAL AND ETHNIC 
BIAS STUDY COMMISSION, WHERE THE INJURED 
FLY FOR JUSTICE; REFORMING PRACTICES WHICH 
IMPEDE THE DISPENSATION OF JUSTICE TO 
MINORITIES IN FLORIDA. DEC. 11, 1991

The Legislature, through the joint efforts of the criminal 
justice and corrections committees of the House and 
Senate,...should immediately undertake a review of those 
cases prosecuted under both mandatory minimum statutes 
and the "habitual offender" statute to determine the effect of 
race or ethnicity in their selection, processing, or ultimate 
disposition. To the extent that improper considerations are 
playing a role, the Legislature should repeal these statutes 
altogether.

The Florida Legislature should require, as a condition of 
funding, that each State Attorney: a) promulgate effective 
criteria which ensure the fair and equal exposure of 
individuals to processing under mandatory minimum 
statutes; and b) annually submit a report to the legislative 
appropriations committees detailing the racial/ethnic 
composition of all individuals prosecuted under these 
statutes. To the extent that such reports reveal racial/ethnic 
disparities in the population of individuals who are 
prosecuted under these statutes, the Legislature should 
require a detailed justification for the impact of 
prosecutorial decision-making in this area.

GEORGIA SUPREME COURT COMMISSION ON 
RACIAL AND ETHNIC BIAS IN THE COURT SYSTEM, 
LET JUSTICE BE DONE; EQUALLY. FAIRLY. AND 
IMPARTIALLY. AUG. 1995

The Commission was created by the Georgia 
Supreme Court on February 1, 1993. The Commission held 
six public hearings throughout the state. In addition, the 
Commission conducted an attitude survey in order to assess



5a

the perceptions of judges, clerks and attorneys practicing in 
Georgia courts. All judges of the superior, state, juvenile, 
and probate courts, chief magistrates, and clerks of the 
superior court were sent surveys in the Fall of 1994. Fifty to 
sixty percent of each group returned completed 
questionnaires. The attorney attitude survey was sent to a 
sample of 2,000 attorneys. Thirty-one percent of the 
attorneys surveyed responded.

RECOMMENDATIONS

Each circuit should be directed to develop and implement 
(pending the approval of the Supreme Court) a formal pre­
trial release policy, specifying factors used in determining 
eligibility for bail.

The State has the ability to undertake additional objective 
testing of the perception of bias in mandatory sentencing. 
First, a complete and thorough study of the application of 
[the mandatory sentencing statute] should be conducted, 
breaking down data for each circuit. In order to achieve this, 
information of the criminal record of the defendant, the type 
of representation (private, public defender, or appointed 
indigent defense), the type of disposition (plea or trial), and 
the quantity of drugs should be developed, obtained and 
incorporated into the relevant databases.

The Implementation Committee with the assistance of such 
agencies as the Georgia Statistical Analysis Bureau (under 
the auspices of the Criminal Justice Coordinating Council) 
and the Prosecuting Attorneys’ Council, should see that 
these studies are conducted. Periodic analyses and 
assessments of other mandatory sentences should be 
conducted so as to detect potential racial disparity. If such 
studies do indicate racial bias in the court system, the 
Implementation Committee should pursue steps to rectify 
any problems.



6a

[T]he Prosecuting Attorney’s Council [should] develop 
explicit, race-neutral guidelines for use in [mandatory 
minimum] cases by district attorneys to safeguard against 
bias.

The Commission feels that the legislature and the courts 
should consider four alternative recommendations as 
possible means of addressing this issue [of peremptory 
challenges]:

Peremptory strikes could be eliminated in civil and 
criminal cases.
De novo appellate review of trial court 
decisions on Batson motions could be 
provided.
Trial judges could conduct voir dire using 
questions submitted in advance in writing by 
counsel.
Trial judges could be encouraged to sustain 
Batson’s objections when the questioned 
strike was made for frivolous, "hunch-type" 
reasons unrelated to the case at bar.

STATE OF IOWA EQUALITY IN THE COURTS TASK 
FORCE, FINAL REPORT. FEB. 1993

The Supreme Court of Iowa established the Equality 
in the Courts Task Force on December 4, 1990. The task 
force held five public hearings throughout the state and 
received written comments from over 300 people. 
Additionally, the Task Force contracted the services of the 
research firm of Selzer Boddy, Inc. to conduct four major 
studies directed at judges, attorneys, court personnel, and 
the general public. The Task Force also designated a team 
of researchers to undertake a special retrospective study of 
criminal cases to determine the effect of race in the criminal 
justice process. The perceptions of the general public were 
elicited via a telephone survey of a cross section of 400



7a

lowans. Surveys were mailed to 2,114 attorneys across the 
state, 1600 court employees, and 351 judges. The response 
rate for the written surveys was high: 84% for judges, 54% 
for attorneys, and 43% for court employees.

FINDINGS

In each case, there are unexplained differences which are 
not associated with any known factor but race.

The Task Force believes the uniform use of pretrial release 
guidelines would decrease the arbitraiy or subjective nature 
of pretrial release decisions.

The Task Force has discovered that information is not easily 
retrievable throughout the state to permit study of possible 
race bias in the court system . . . .  The benefit derived from 
the uniform collection of such information from all stages of 
the criminal process is significant.

The State should maintain a centralized data base that 
includes information on defendant race, victim race,...along 
with the range of legal and social variables included in the 
present study. This would allow periodic monitoring of 
charging and sentencing discrepancies along racial lines.

The Task Force believes that a collections system data base 
needs to be established on an ongoing basis to gather the 
facts necessary to initiate, at any time, an examination and 
analysis of disparate incarceration rates among adults and 
juveniles. Otherwise, it will be necessary to conduct 
expensive and time-consuming criminal case studies; such 
case studies cannot be done throughout the state efficiently 
or on an ongoing basis.

RECOMMENDATIONS

The results of the Criminal Case Study should be discussed



8a

at the annual judges conference. The present and future 
court system database should be monitored periodically, and 
patterns of racially associated disparities noted, publicly 
disseminated, and specifically brought to the attention of 
Districts where disparities occur.

County attorney offices should be required to keep records 
of the charges on initial arrest, the charges ultimately filed, 
the arrests they chose not to prosecute, the reasons they 
chose not to prosecute, and the race and gender of the 
alleged perpetrators.

MASSACHUSETTS SUPREME JUDICIAL COURT 
COMMISSION TO STUDY RACIAL AND ETHNIC BIAS 
IN THE COURTS, FINAL REPORT. SEPT. 1994

The Commission was created on August 2, 1990 by 
the Justices of the Massachusetts Supreme Judicial Court. 
The impetus for the Commission’s creation was an incident 
that occurred in Suffolk Superior Court in August 1988. 
During a criminal session of Suffolk Superior Court, two 
court officers mistook Assistant Attorney General Thomas 
H. Brewer, an African American, for a defendant and 
attempted to bar him, in an inappropriate manner, from 
gaining access to a part of the courtroom that he was 
entitled to enter. The resulting publicity highlighted the 
issue of racial bias in Massachusetts courts. In the Spring of 
1990, the Chief Justice, responding to growing public 
concern, met with bar association leaders to discuss the need 
for a study. The Commission was formed following the 
meeting.

The Commission held seven public hearings and 
focus group meetings across the state to solicit a wide range 
of public input. The Commission also surveyed the bench 
and bar members, conducted an extensive research project 
on the racial composition of jury pools and juries, and 
examined the effect of bias on sentencing. An attorneys’



9a

survey was sent to 4,542 attorneys. A judges’ survey was sent 
to 328 judges. The response rates were 56% and 80% 
respectively.

RECOMMENDATIONS

The Supreme Judicial Court should undertake, on its own or 
through the Massachusetts Sentencing Commission, a 
comprehensive study of sentencing patterns to determine 
whether there is any disparity related to racial/ethnic bias. 
A sentencing study should include a detailed analysis of the 
sentencing patterns of young male offenders. This analysis 
should be conducted on serious crimes committed by white, 
black/African American, Hispanic and Asian American 
males by comparing the rates of incarceration and sentence 
length across these groups.

The Trial Court should produce and distribute regular 
reports of sentencing patterns by race and ethnicity.
The Office of the Commissioner of Probation, the 
Committee for Public Counsel Services, the District 
Attorneys’ offices, the Trial Court and local police 
departments should develop coordinated information systems 
which will allow comparison of the data each has collected. 
The District Attorney’s office for each county should be the 
primary agency responsible for collecting the data on case 
processing.

MICHIGAN SUPREME COURT TASK FORCE ON 
RACIAL/ETHNIC ISSUES IN THE COURTS, FINAL 
REPORT, DEC. 1989

The Task Force was created on September 15, 1987 
by the Michigan Supreme Court. The Task Force focused 
its investigations on seven major areas: judicial behavior, 
court treatment, court employment practices, ethics, attorney



10a

behavior, criminal justice and jury processes. The Michigan 
Supreme Court Task Force was the first of its kind in the 
nation.

The Commission was created after the Michigan 
Supreme Court Citizens’ Commission to Improve Michigan 
Courts called for the creation of task forces on gender and 
racial/ethnic issues in the courts in 1986. The Citizens’ 
Commission had found that a significant and disturbing 
perception existed among Michigan citizens: Over one-third 
believed that individuals were discriminated against in the 
Michigan court system on the basis of their gender, race or 
ethnic origin.

The task force held public hearings in eight cities 
throughout the state. In addition, it surveyed a random 
sample of 900 attorneys who practiced in the courts. The 
response rate was 45.6%. It also conducted a survey of 574 
judges with an overall response rate of 45%.

FINDINGS

That trial judges should be encouraged to implement the 
Batson standard on their own initiative in any jury selection 
process in which peremptory challenges appear to be racially 
motivated.

RECOMMENDATIONS

The Michigan Supreme Court should conduct a study similar 
to that done in the felony sentencing project of actual bail 
practices to investigate the question of disparity in bail 
practices by race, ethnicity, gender, economic class and 
region and to establish a process to develop 
recommendations in the event that disparity is statistically 
shown.

Current analysis of sentencing should include factors relating



11a

to the impact of and interrelationship of:
a.
b.
c.
d.
e.

misdemeanor convictions and sentences 
race, ethnic background and gender of the judge 
race, ethnic background and gender of the victim 
race, ethnic background and gender of the defendant 
guideline departures

All judges should receive an analysis of their own sentencing 
practices on an annual basis.

NEW JERSEY SUPREME COURT TASK FORCE ON 
MINORITY CONCERNS, FINAL REPORT. JUNE 1992

The Task Force was created in September 1985. The 
purpose of the task force was to critically examine the 
concerns of minorities with their treatment in the courts and 
to propose solutions to identified problems. The Task Force 
was created after Chief Justice Robert Weilentz met with 
representatives of the Coalition of Minorities in the 
Judiciary in the summer of 1983. The Coalition was an 
organization founded in 1980 to address issues of concern to 
racial minorities in the judiciary and to make 
recommendations to the Chief Justice, the Supreme Court, 
and the Administrative Director of the Courts on ways to 
address problems relating to minority concerns. As a result 
of the meeting, the Chief Justice convened a Committee on 
Minority Concerns for the purpose of addressing the 
concerns of the Coalition. After reviewing the Committee’s 
report, in September 1985, the Task force was created.

The Task Force retained several independent 
research consultants to execute a wide-ranging research 
program. The Task Force also met with representatives of 
bar associations, administrators of key public and private 
agencies involved with the administration of justice, and 
conducted telephone surveys. Thirteen public hearings were 
held at different locations around the state. Written 
testimony was also taken.



12a

A judicial survey aimed at capturing perceptions of 
bias in the justice system was undertaken. Of the 340 
Superior Court judges attending the Judicial College, nearly 
50% returned the questionnaire. The response rate for 
court administrators attending the Judicial Staff College was 
61%.

RECOMMENDATIONS

The Supreme Court should require that all rules and 
directives regarding bail be reviewed and revised in order to 
promulgate procedures to be applied uniformly statewide.

The Chief Justice should consider approaching the Attorney 
General to explore the possibility of jointly sponsoring an 
empirical analysis of recent New Jersey samples of bail and 
sentencing outcomes, controlling for key factors that 
influence the outcomes of these decisions, examining the 
possibility of cumulative discrimination effects over the 
sequence of decisions from arrest through sentencing, and 
determining the degree to which discrimination occurs at 
each of those decision points.

REPORT OF THE NEW YORK STATE JUDICIAL 
COMMISSION ON MINORITIES, EXECUTIVE 
SUMMARY. APR. 1991

The Commission was formed on January 21,1988 by 
Chief Judge Sol Wachtler. The mandate of the Commission 
was to examine the courtroom treatment of minorities, 
review the representation of minorities in nonjudicial 
positions within the courts, and review the selection 
processes for judges.

The Commission was created after members of the 
Coalition of Blacks in the Courts met with the Chief Justice 
in 1987 to discuss both the despair felt by judges, nonjudicial 
officers and litigants regarding the treatment of Blacks in the



13a

courts and the underrepresentation of Blacks within the 
judiciary and the legal profession.

The Commission held four public hearings 
throughout New York state. Additionally, the Commission 
held a series of public meetings in each county with a 
minority population of at least 10%, met with most judges in 
the state, met with court administrators, and met with 
leaders of various bar and community associations.

The Commission conducted an attorney survey. Of 
the 840 attorneys surveyed, 81% responded. The 
Commission also conducted a survey of the 1,129 judges in 
the State. The response rate was 57%.

RECOMMENDATIONS

Judges should review their bail and sentencing decisions to 
ensure that they are fair and not influenced by racial or 
ethnic stereotypes.

Sentencing statistics concerning the race of victim, defendant 
and complainant should be maintained along with case 
outcome and should be published by the Unified Court 
System in cooperation with the New York State Division of 
Criminal Justice Services.

Judges should exercise heightened scrutiny to ensure that 
peremptory challenges are not used improperly in the voir 
dire process.

The Commission on Judicial Conduct should give complaints 
of racial bias high priority and keep records of its 
investigations and disposition of charges in a manner 
permitting analysis of whether there were any patterns of 
racial or ethnic discrimination.



14a

OREGON SUPREME COURT TASK FORCE, REPORT 
ON RACIAL/ETHNIC ISSUES IN THE JUDICIAL 
SYSTEM. MAY 1994

The Oregon Supreme Court Task Force was 
established by the Oregon Supreme Court on February 21, 
1992. The task force was created to identify problems faced 
by racial and ethnic minorities in the judicial system and to 
propose a course of action to address the problems and 
concerns.

The Task Force gathered information from testimony 
at nine public hearings throughout the state. Additionally, 
7,525 persons who use the court system were surveyed 
regarding issues of race and ethnicity in the Oregon court 
system. Surveys were sent to 5,438 judges, court personnel, 
and attorneys. The response rate was 40%. In addition to 
the extensive survey research, prior research, and written 
comments submitted to the task force were analyzed.

FINDINGS

Peremptory challenges, eliminating individuals from serving 
on juries, are used solely because of the race or ethnic 
background of prospective jurors.

In the criminal justice area, the evidence suggests that, as 
compared to similarly situated nonminorities;

minorities are more likely to be arrested, 
minorities are more likely to be charged, 
minorities are less likely to be released on bail, 
minorities are more likely to be convicted, 
minorities are less likely to be put on probation, 
minorities are more likely to be incarcerated.

In the juvenile justice system:
minorities are more likely to be arrested, 
minorities are more likely to be charged with 
delinquent acts,
minorities are more likely to be removed from their



15a

family’s care and custody,
minorities are more likely to be remanded for trial as 
adults,
minorities are more likely to be found guilty of 
delinquent acts,
minorities are more likely to be incarcerated, 
minorities lack experts sensitive to the cultural 
differences of minorities.

RECOMMENDATIONS

District attorneys should be required to collect and report to 
the Criminal Justice Council data on the variable of race in 
all charging decisions.

The legislature should direct the Criminal Justice Council to 
develop uniform charging standards to be used by all 
prosecutors in Oregon. The uniform standards should be 
sufficiently detailed to provide meaningful limits on 
prosecutorial discretion and to enable judicial review. The 
Criminal Justice Council should be directed to report 
biannually to the legislature on the implementation of the 
standards.

The Chief Justice should require trial judges, in rendering 
pretrial release decisions, to use uniform forms that include 
the race of defendants.

The legislature should direct the Criminal Justice Council to 
study and report the extent to which the race of a defendant 
affects the outcome of a pretrial release decision, either in 
the decision whether to release on personal recognizance or 
in the conditions of release.

Because of the immense help that its statistics have been to 
this task force, and because it is imperative that such 
statistics be available in the future, the Criminal Justice



16a

Council should continue to study and report on racial 
disparities in sentencing.

WASHINGTON STATE MINORITY AND JUSTICE TASK 
FORCE, SUMMARY OF CONCLUSIONS AND 
RECOMMENDATIONS. DEC. 19, 1990

The Task Force was established in 1987 pursuant to 
legislation which sought to improve the treatment of racial 
and ethnic minorities in Washington courts. The Task Force 
held public forums around the state in 1988 and undertook 
research studies.

The Washington Supreme Court created the Minority 
and Justice Commission in October 1990 in acknowledgment 
of the importance of the continuing need to determine 
whether racial, ethnic and cultural bias exists in the state 
court system and, when it exists, to recommend appropriate 
action to overcome it. The Commission’s purpose was to 
continue the work of its predecessor, the Task Force, by 
implementing the Task Force Recommendations.

The data for the Commission’s study on race and 
ethnic disparities in the prosecution of felony cases in King 
County came from three sources: (1) an automated database 
used by the Office of the King County Prosecuting Attorney;
(2) case files for a sample of approximately 500 felony cases 
filed with the King County Superior Court during 1994; and
(3) personal interviews with 15 King County deputy 
prosecuting attorneys.

FINDINGS:

The filing of felony charges by the King County Prosecutor’s 
Office varies by the type of offense and by the race of the 
offender . . . White offenders were the least likely to be 
charged (60%), compared to 65% of all minority offenders.



17a

First, the effect of race, particularly African American, on 
bail was significant in most analyses...Second, there were 
significant differences in the amount of confinement 
recommended for Black offenders and White offenders, and 
deputy prosecutors were less likely to recommend an 
alternative sentence conversion for Black offenders.

[CJontrolling for legal factors, African Americans tend to 
receive higher sentences than Whites and are less likely to 
be provided an alternative sentence conversion.

CALIFORNIA JUDICIAL COUNCIL ADVISORY 
COMMITTEE ON RACIAL AND ETHNIC BIAS IN THE 
COURTS, FAIRNESS IN THE CALIFORNIA STATE 
COURTS.

The Advisory Committee on Racial and Ethnic Bias 
in the State Courts was appointed in 1991 by Chief Justice 
Malcolm Lucas.

The Committee conducted 13 days of public hearings 
to ascertain public perceptions of fairness in the judicial 
system. After the hearings, a survey was completed in order 
to verify the extent to which the concerns expressed in the 
public hearings were shared by the general public, attorneys, 
and court personnel. The survey of the general public 
consisted of a random sample of 1,338 people. 
Approximately 2,070 written questionnaires were mailed to 
all judicial officers and top administrators of the courts. 
Another 2,000 questionnaires were mailed to minority and 
non-minority attorneys.



RECORD PRESS, INC., 157 Chambers Street, N.Y. 10007—89330—(212) 619-4949