Monday, July 26, 2010

Race In The Courtroom: A Prosecutor's Perspective

A new study shows that, in North Carolina, a defendant convicted of murdering a white person is 3 times as likely to receive the death sentence as compared to a defendant convicted of murdering a black person.  By comparison, an almost identical study in Florida shows a very small disparity, although the death sentence is still more likely in cases with a white victim. (For informational purposes, the study seems to use the term "black person" and not "African American", and thus this article uses the same terminology.)

A university professor from Colorado and a university researcher from Boston examined over 15,000 homicide cases in North Carolina, spanning the years 1980 to 2007, 368 (2.4%) of which resulted in death as the determined penalty.  The conductors of the study, who have decades of experience in such research, explained that they did their best to compare apples to apples (recognizing that some murder cases are more brutal and shocking than others, for example, and thus more deserving of the death penalty).

Among various theories to explain the discrepancy is that white victim cases tend to receive more attention (and garner more outrage) from the community - and perhaps from judges, juries, and the prosecutor's office. Then again, when Nebraska (a rather "white" state) was evaluated, it was discovered that white victim cases were less likely to result in a death penalty sentence.

Interestingly, last year, N.C. passed a law known as the "Racial Justice Act". This law allows judges to consider statistical evidence, if any, which suggests that race played a role in the seeking or imposing of the death penalty in a particular case and use any such conclusion to impact the execution of the sentence. Due to various and mostly unrelated legal challenges, death penalty executions in North Carolina have actually been on hold for the past 3 years.

A Prosecutor's Perspective

I worked as a prosecutor in south Florida from 1996 - 2001, and prosecuted thousands of cases during those 5 years. Below are some questions relevant to this article, and my answers to the same, based on my professional experience as a prosecutor.

Was I, as a prosecutor, ever accused of racism? Not to my knowledge. Occasionally, while out and about in the community on my off hours, I would run into someone I had prosecuted or even put in jail or prison (persons of varying skin color). On many of those occasions I had no idea who the person was until (s)he got my attention. Each time (and such occasions were rare), the person I had prosecuted got my attention and said hello (or something similar), and maybe even tried to speak with me further.  Of course I never discussed their cases with them - I just said "hello" back and wished them well.  Never once did I feel threatened or even receive harsh words. I always believed (and still do) that this was because I merely did my job, did it fairly as I was sworn to do, and never made it personal.

Did I ever experience obvious "racism" in the courtroom? Yes, but not often and not always in the way you might expect. The most blatant episode I experienced was actually what is sometimes referred to as "reverse racism". It was a routine possession of cocaine (a felony) jury trial, and the defendant - a white woman arrested in the company of a dark-skinned man - had a known background of prostitution, drug use, etc. The evidence was quite clear, but there was one juror who refused to convict.  She was an 80 year old African American woman who had lived her formative years in small town Alabama or Georgia (I can't recall which) who slept through most of the trial. (Persons who sleep through trials - and there are many more of them than you'd expect - are rarely factors in the jury's decision, but rather follow the majority.)

Although there was no evidence to suggest this - and not a single person during the trial, defense attorney included, ever suggested it - this juror decided that the police had planted the cocaine and arrested the white woman merely for being in the company of her dark skinned "friend" (who was not arrested or charged with any crime). Thus she assumed that the police (one of whom was white, the other African American) acted illegally to punish a white woman for associating with a darker man - she unfairly stereotyped the police officers as having acted with racial motives.

Did I ever experience racism in the prosecutor's office? No and yes.  I never experienced a racially charged atmosphere , any race based actions, or anything that made me (a white male) aware of a racially hostile working environment. However, I did overhear an occasional "racist" remark by a fellow prosecutor, always directed at a criminal defendant. None of these remarks were along the lines of "I'm going to get that (insert racial term of your choosing here)" and none, on their face, indicated the prosecutor was going to be unfair in prosecuting the case. I never observed any behavior indicating that a particular prosecutor sought harsher punishment due to racial factors - unless the law demanded harsher punishment in situations involving legally defined "hate crimes".

Did I ever feel different toward a case because of race? No and yes.  I never, ever cared what color the defendant's or victim's skin was with regard to prosecuting the case "harder" or seeking a harsher penalty.  For the most part, all I really cared about was what happened, and, to a lesser extent, why it happened.  After all, the whole point of having laws and prosecuting the breaking of laws is to judge persons on their actions - did they violate the law or not? However, I was always relieved - we all were - if a case seemed to lack any "racial issues". In my experience, we wanted to prosecute cases on their merits, not be sidetracked by irrelevant racial issues.  (Occasionally, race is a relevant issue in a case.)

What about this study in North Carolina - why are white victim cases so much more likely to result in the death penalty being handed down? Good question, and it's impossible to point to any one factor. In some cases there simply is no difference in how the cases are treated, regardless of who the victim is. For cases in which there may be a difference due to racial issues, I'd suggest the following as 5 possibilities - and this list is not meant to be all inclusive, by any means:

  • inherent but subconscious greater concern about white victims by those inside the justice system;

  • a greater reaction from the general community when the victim is white (puts pressure on those inside the justice system to ensure harsher punishment);

  • greater resources (money, connections, access to publicity) by those connected to the white victim;

  • actual, intentional unfair application of law by those inside the justice system; and

  • subconscious disparity in coverage by media.

One further observation & food for thought: in my experience, the reaction from the community and the media was much, much greater when the victim was an animal as opposed to a human being of any color.