Allegations of Race Bias in Crack Prosecutions Requires More Proof, Supreme Court Rules

IN THE COURTS SUMMER 1996

In a closely watched case from the Ninth Circuit, U.S. Court of Appeals, the U.S. Supreme Court has ruled that allegations of racially discriminatory selective prosecution seeking discovery of government information require "a credible showing of different treatment of similarly situated persons." The 8-1 opinion was written by Chief Justice William H. Rehnquist (Linda Greenhouse, "Race Statistics Alone Do Not Support a Claim of Selective-Prosecution, Justices Rule," New York Times, May 14, 1996, p. A20; Aaron Epstein, "Justices ask proof of bias in drug cases," Philadelphia Inquirer, May 14, 1996, p. A1; Joan Biskupic, "Hurdle for Racial Claims In Crack Prosecutions Raised," The Washington Post, May 14, 1996, p. A4. U.S. v. Armstrong, No. 95-157, --U.S.--, 116 S.Ct. 1480, 1996WL241682, 59 CrL 2089, (May 13, 1996)).

In April 1992, Armstrong and his co-defendants were indicted in the U.S. District Court for the Central District of California for conspiring to distribute more than 50 grams of cocaine base (crack). The defendants filed a motion for discovery or for dismissal of the indictment alleging that they were selected for prosecution because they were black. In support of the motion, they offered the affidavit of a paralegal specialist in the office of the Federal Public Defender that every defendant in the cases of drug trafficking (21 USC 841) and drug conspiracy (21 USC 846) closed by the office in 1991 was black. The government opposed the discovery motion, pointing out that there was no allegation that the government acted unfairly or prosecuted or not prosecuted non-black defendants, but it offered no evidence. The district court granted the discovery motion directing the government to list the cases in the last three years in which the government charged both cocaine and firearms offenses, to identify the race of the defendants in those cases, to identify the levels of law enforcement involved in the investigations of those cases, and to explain its criteria for prosecution. The government moved for reconsideration and submitted affidavits and evidence explaining why it had chosen to prosecute these defendants: over 100 grams of cocaine base involved; multiple sales by multiple defendants, "thereby indicating a fairly substantial crack cocaine ring;" multiple firearms violations; several defendants had criminal histories of narcotics and firearms offenses; and the evidence was strong with audio and videotapes of defendants. The defendants' reply to this motion was the affidavit of a drug treatment center intake coordinator that there are an equal number of Caucasian users and dealers to minority users and dealers, an affidavit of a criminal defense lawyer that many nonblacks are prosecuted in state court for crack offenses, and a LA Times story about alleged race discrimination in crack prosecutions. The district court denied the motion for reconsideration. The government said it would refuse to comply with the discovery order, and the district court dismissed the case. (The government had suggested dismissal of the indictments so that it could appeal.) A divided three judge panel of the Ninth Circuit, U.S. Court of Appeals reversed, holding that the defendants had to provide a colorable basis for believing that others similarly situated have not been prosecuted in order to obtain discovery (21 F.3d 1431 (1994)). The case was then heard by the 9th Circuit en banc, and the en banc panel affirmed the district court holding that "a defendant is not required to demonstrate that the government has failed to prosecute others who are similarly situated." (48 F.3d 1508 (1995)).

In the Supreme Court, the parties raised the question of whether Rule 16 of the Federal Rules of Criminal Procedure regarding discovery was a proper basis for the judge to order discovery. Of less consequence for this case, but of more consequence for discovery in Federal cases generally, the Supreme Court ruled that a defense is only a defense to "the Government's case-in-chief," and excludes other matters that might be raised that enable the defendant to win the case.

The court ruled that the requirements for a selective-prosecution claim draw on "ordinary equal protection standards." "To establish a discriminatory effect in a race case, the claimant must show that similarly situated individuals of a different race were not prosecuted." The court relied on precedents going back to 1886 and 1905.

Having reviewed the requirements to prove a selective-prosecution claim, the court turned to the showing necessary to obtain discovery. The court noted the costs upon the government of responding to the discovery order, and noted that "[i]t will divert prosecutors' resources and may disclose the government's prosecutorial strategy. The justifications for a rigorous standard for the elements of a selective-prosecution claim thus require a correspondingly rigorous standard for discovery in aid of such a claim." [This does not necessarily follow. One could just as reasonably argue that the creation of a high burden of proof should logically permit latitude in obtaining the evidence necessary to meet that burden. -- EES]

The Supreme Court criticized the Ninth Circuit for having started with the presumption that people of all races commit all types of crime. The Court objected that the Court of Appeals cited no authority. In rebuttal, the Supreme Court then cited the Sentencing Commission's 1994 Annual Report for the fact that more than 90% of the persons sentenced for crack cocaine trafficking offenses in 1994 were black; 93.4% of convicted LSD dealers were white, and 91% of those convicted of pornography or prostitution were white. "Presumptions at war with presumably reliable statistics have no proper place in the analysis of this issue." [emphasis added.] The court suggested the defendants "could have investigated whether similarly situated persons of other races were prosecuted by the State of California, were known to federal law enforcement officers, but were not prosecuted in federal court."

Associate Justice John Paul Stevens dissented, but agreed with the majority that "the facts presented ... [in support of the defendants' claim] that they have been singled out for prosecution of their race were not sufficient to prove that defense. Moreover, I agree with the Court that their showing was not strong enough to give them a right to discovery under Rule 16 or under the District Court's inherent power to order discovery in appropriate circumstances." Stevens, however, did not believe that the district judge abused her discretion "when she concluded that the factual showing was sufficiently disturbing to require some response from the United States Attorney's Office."

Stevens warned that there are three circumstances that "underscore the need for judicial vigilance over certain types of drug prosecutions." (1) The regime of "extremely high penalties" for the possession and distribution of so-called "crack" cocaine. (2) The disparity between the severity of the punishment imposed by federal law and that imposed by state law for the same conduct. (3) Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks.