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By Root 365 0

The result was that 98.4 percent of those serving life sentences under the provision were black. The Georgia Supreme Court ruled, by a 4-3 vote, that the stark racial disparity presented a threshold case of discrimination and required the prosecutors to offer a race-neutral explanation for the results. Rather than offer a justification, however, the Georgia attorney general filed a petition for rehearing signed by every one of the state’s forty-six district attorneys, all of whom were white. The petition argued that the Court’s decision was a dire mistake; if the decision were allowed to stand and prosecutors were compelled to explain gross racial disparities such as the ones at issue, it would be a “substantial step toward invalidating” the death penalty and would “paralyze the criminal justice system”—apparently because severe and inexplicable racial disparities pervaded the system as a whole. Thirteen days later, the Georgia Supreme Court reversed itself, holding that the fact that 98.4 percent of the defendants selected to receive life sentences for repeat drug offenses were black required no justification. The court’s new decision relied almost exclusively on McCleskey v. Kemp. To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp anywhere in the United States.

Charging Ahead—Armstrong v. United States

If sentencing were the only stage of the criminal justice process in which racial biases were allowed to flourish, it would be a tragedy of gargantuan proportions. Thousands of people have had years of their lives wasted in prison—years they would have been free if they had been white. Some, like McCleskey, have been killed because of the influence of race in the death penalty. Sentencing, however, is not the end, but just the beginning. As we shall see, the legal rules governing prosecutions, like those that govern sentencing decisions, maximize rather than minimize racial bias in the drug war. The Supreme Court has gone to great lengths to ensure that prosecutors are free to exercise their discretion in any manner they choose, and it has closed the courthouse doors to claims of racial bias.

As discussed in chapter 2, no one has more power in the criminal justice system than prosecutors. Few rules constrain the exercise of prosecutorial discretion. The prosecutor is free to dismiss a case for any reason or no reason at all, regardless of the strength of the evidence. The prosecutor is also free to file more charges against a defendant than can realistically be proven in court, so long as probable cause arguably exists. Whether a good plea deal is offered to a defendant is entirely up to the prosecutor. And if the mood strikes, the prosecutor can transfer drug defendants to the federal system, where the penalties are far more severe. Juveniles, for their part, can be transferred to adult court, where they can be sent to adult prison. Angela J. Davis, in her authoritative study Arbitrary Justice: The Power of the American Prosecutor, observes that “the most remarkable feature of these important, sometimes life-and-death decisions is that they are totally discretionary and virtually unreviewable.”54 Most prosecutors’ offices lack any manual or guidebook advising prosecutors how to make discretionary decisions. Even the American Bar Association’s standards of practice for prosecutors are purely aspirational; no prosecutor is required to follow the standards or even consider them.

Christopher Lee Armstrong learned the hard way that the Supreme Court has little interest in ensuring that prosecutors exercise their extraordinary discretion in a manner that is fair and nondiscriminatory. He, along with four of his companions, was staying at a Los Angeles motel in April 1992 when federal and state agents on a joint drug crime task force raided their room and arrested them on federal drug charges—conspiracy to distribute more than fifty grams of crack cocaine. The federal public defenders assigned to Armstrong’s case were disturbed by the fact that Armstrong