The New Jim Crow_ Mass Incarceration in the Age of Colorblindness - Michelle Alexander [74]
Given how flagrantly prosecutors were violating Batson’s ban on race discrimination in jury selection, it was reasonable to hope that, if presented with a particularly repugnant case, the Supreme Court might be willing to draw the line at practices that make a mockery of the antidiscrimination principle. Granted, the Court had been unwilling to accept statistical proof of race discrimination in sentencing in McCleskey, and it had brushed off concerns of racial bias in discretionary police stops in Whren, and it had granted virtual immunity to prosecutors in their charging decisions in Armstrong , but would it go so far as to allow prosecutors to offer blatantly absurd, downright laughable excuses for striking blacks from juries? It turns out the answer was yes.
In Purkett v. Elm, in 1995, the Supreme Court ruled that any race-neutral reason, no matter how silly, ridiculous, or superstitious, is enough to satisfy the prosecutor’s burden of showing that a pattern of striking a particular racial group is not, in fact, based on race. In that case, the prosecutor offered the following explanation to justify his strikes of black jurors:I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared not to be a good juror for that fact.... Also, he had a mustache and a goatee type beard. And juror number twenty-four also had a mustache and goatee type beard.... And I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.74
The Court of Appeals for the Eighth Circuit ruled that the foregoing explanation for the prosecutor’s strikes of black jurors was insufficient and should have been rejected by the trial court because long hair and facial hair are not plausibly related to a person’s ability to perform as a juror. The appellate court explained: “Where the prosecution strikes a prospective juror who is a member of the defendant’s racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race neutral reason for believing that those factors will somehow affect the person’s ability to perform his or her duties as a juror.”75
The U.S. Supreme Court reversed, holding that when a pattern of race-based strikes has been identified by the defense, the prosecutor need not provide “an explanation that is persuasive, or even plausible.”76 Once the reason is offered, a trial judge may choose to believe (or disbelieve) any “silly or superstitious” reason offered by prosecutors to explain a pattern of strikes that appear to be based on race.77 The Court sent a clear message that appellate courts are largely free to accept the reasons offered by a prosecutor for excluding prospective black jurors—no matter how irrational or absurd the reasons may seem.
The Occupation—Policing the Enemy
The Court’s blind eye to race discrimination in the criminal justice system has been especially problematic in policing. Racial bias is most acute at the point of entry into the system for two reasons: discretion and authorization. Although prosecutors, as a group, have the greatest power in the criminal justice system, police have the greatest discretion—discretion that is amplified in drug-law enforcement. And unbeknownst to the general public, the Supreme Court has actually authorized race discrimination in policing, rather than adopting legal rules banning it.
Racially biased police discretion is key to understanding how the overwhelming majority of people who get swept into the criminal justice system in the War on Drugs turn out to be black or brown, even though the police adamantly deny that they engage in racial profiling. In the drug war,