All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (U.S. Const. amend. XIV, § 1.)
With the ratification of the Fourteenth Amendment in 1868 came a new hope for African Americans who had previously been slaves. Now, they were to be afforded equal protection under the laws, just as white Americans had been, and be considered actual citizens of the United States of America. However, there were additional barriers put in place to prevent new African American citizens from enjoying the freedoms that were supposed to be available to all citizens regardless of race, including rights under the criminal justice system. (Professor Charles J. Ogletree, Jr., Reflections on the First Half-Century of Brown v. Board of Education - Part 2, Champion, June 2004, at 24). In the two decades following ratification of the Fourteenth Amendment, a series of Supreme Court rulings legitimized private acts of discrimination and effectively created a two-tiered citizenship, setting the tone for what came to be known as the Jim Crow era (id.).
Decades have now passed since the Jim Crow era ended, and we still find ourselves discussing and debating equal protection. Is it possible that we have entered a new Jim Crow era that functions through our criminal justice system and has resulted in the mass incarceration of minorities? Are sentencing practices really equal in the criminal courtroom regardless of racial background?
Brief History of the Jim Crow Era
Although the ratification of the Fourteenth Amendment brought hope to African Americans, the implementation of the Jim Crow laws in the late 1870s through the mid-1960s dampened those hopes. During this period, separate was equal, schools were segregated, and African American criminal defendants who did make it to trial—as opposed to being lynched—were almost always found guilty even if there were questions regarding their true guilt (Michael J. Klarman, The Racial Origins of Modern Criminal Procedure, 99 Mich. L. Rev. 48 (2000)).
Just because African Americans were guaranteed a trial when charged with a crime does not mean that they were afforded equal protection under the laws during the trial process. In many of these cases, defense attorneys were given the cases the day before or even the morning of trial, with no time to prepare a proper defense or even discuss the allegations with their client, and in circumstances where asking for a continuance would almost assure that their client would be lynched or found guilty (id.).
Jim Crow was slowly dismantled during this period through cases such as Moore v. Dempsey, Brown v. Mississippi, and Brown v. Board of Education. Although it was not an easy road, Jim Crow laws were eventually eliminated and schools were desegregated. While the discriminatory laws were eventually found to be unconstitutional, their effects still linger in our criminal justice system, from the way in which police conduct themselves to the sentencing practices of the court system.
Current Treatment of Minorities in the Criminal Justice System
In today’s digitally connected world, where social media rules the younger generations, people all over the world are able to see every aspect of a person’s life via Instagram, Snapchat, Facebook, and even livestreamed through Facebook Live. Social media and the use of camera phones have brought to light the treatment of minorities across the United States in a way that was not previously possible. Unequal treatment and the unjustified or unlawful killing of minorities is seen so often via social media sites, and sometimes by livestream, that it is reasonable to conclude that minorities are in fact being treated unequally. These videos reveal that the inequalities throughout the criminal justice system are not caused by statutes or laws themselves, but by the selective enforcement by our police departments, as well as the selective prosecution and the selective sentencing by our judges and juries (Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043 (2010)).
At the end of 2015, although African Americans made up only about 13% of the population, there were 523,000 African American prisoners who were sentenced to more than 1 year under state or federal correctional authority, as compared to 499,400 White American prisoners (Bureau of Justice Statistics, Prisoners in 2015, December 2016). In many states, African Americans represent a staggering 80% to 90% of imprisoned drug offenders, even though there is no evidence that suggests African Americans use more drugs than whites (Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043 (2010)). These numbers can be partially explained by police officers using their discretion to patrol and spend more time in black communities and profiling during police stops (Cassia Spohn, Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries, 44 Crime & Justice 49 (2015)). This is where the disparity begins for minorities—but not where it ends.
Once African Americans are placed on trial, the unequal treatment continues. It has been shown that a disproportionate number of African American jurors are dismissed, especially in capital cases where the death penalty is sought by the prosecution (Alec T. Swafford, Qualified Support: Death Qualification, Equal Protection and Race, 39 American Journal of Criminal Law, (Fall 2011)). Beyond improprieties in jury selection, there is unequal treatment in terms of the quality of defense being offered and the manner in which judges or juries exercise their discretion in sentencing. One study found that in 82% of cases, the race of the victim influenced the probability of the defendant being charged with a capital murder or receiving the death penalty; those who murdered whites were more likely to be sentenced to death than those who murdered blacks (United States General Accounting Office, Death Penalty Sentencing, February 1990).
A Brief Overview of Two Cases
On May 23, 2016, the capital murder conviction and death sentence of Timothy Foster was reversed and remanded after a long battle, which began with Foster being convicted of murder by an all-white jury for killing an elderly white woman (Foster v. Chatman, 136 S. Ct. 1737, 195 L. Ed. 2d 1 (2016)). During jury selection at Foster’s trial, the State utilized peremptory strikes on all four black prospective jurors who were otherwise qualified to serve (id.). Following a habeas proceeding after affirmance of the capital murder conviction and death sentence, over the State’s objection, the court admitted into evidence documents relating to jury selection that showed that the State had highlighted the potential black jurors and included “Ns” next to all potential black jurors names (id.). Notwithstanding this evidence, the court denied relief, and the Supreme Court eventually granted certiorari. The Court held that the strikes of two of the potential back jurors were a violation of the petitioner’s constitutional rights (id.).
In Miller-El v. Dretke, the Court held that a state court’s factual findings as to the race-neutral explanations given by the prosecution for using their peremptory challenges to eliminate 10 of 11 potential black jurors were inadequate and, as such, warranted a grant of federal habeas relief (Miller-El v. Dretke, 545 U.S. 231, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005)). During Miller-El’s capital murder trial, the State struck the 10 of 11 potential black jurors in a climate where the district attorney’s office already had a history of excluding blacks from criminal juries. Miller-El objected to the strikes and, after conviction, requested a new trial (id.). The trial court denied the request for a new trial and the defendant was sentenced to death (id.). Certiorari was granted and the Court stated that any reason for striking a black panelist also applies to white panelist (id.). It was shown that many of the potential back panelist shared the same views as many of the white panelists but were dismissed, and, moreover, the prosecution shuffled the cards in order to prevent black panelists from being questioned so that they would ultimately be dismissed (id.).
In each of these cases, the Supreme Court ultimately found that discrimination had occurred. However, the appeal process took years to get to that point, and most cases never even get that far.
The United States has 5% of the world’s population and 25% of the world’s prisoners; of those, African Americans make up nearly 1 million (NAACP Criminal Justice Fact Sheet, www.naacp.org (last visited March 13, 2017)). Currently, there are more African Americans within the criminal justice system than there were slaves in the 1850s (Paul Butler, One Hundred Years of Race and Crime, 100 J. Crim. L. & Criminology 1043 (2010)). This is an astonishing number and should concern all Americans. And while only two cases were covered in this article, many more cases exist that show a discrepancy in the way minorities are treated throughout the criminal justice system.
Within the court system, minorities must be given an equal chance at a fair trial. But equal protection does not start in the courtroom; it starts by affording equal opportunities to all, regardless of race. This includes discrimination outside of the courtroom with regard to minorities applying for certain housing or loans, being able to live in certain neighborhoods, having access to educational opportunities, and much more. After coming so far from slavery to the ratification of the Fourteenth Amendment, it remains clear that we have much more work to do in order to ensure that all Americans, regardless of race, enjoy the freedoms and equal protection that America has to offer in and out of the courtroom.