William Newman: American justice still shackled by bias

Last modified: Wednesday, August 28, 2013

NORTHAMPTON — Let’s try to decide whether we have heard enough, debated enough, about George Zimmerman killing Trayvon Martin by our recalling the national print campaign run by the ACLU some years ago. That ad showed photographs of two men’s faces side by side — one black, one white — with the question, which man is the criminal?

Knowing this had to be a trick question, you stared at the photographs, searching futilely for any telltale signs that one was a member of a gang or had been beaten up in prison or was wearing a smirk that demonstrated a predilection for antisocial behavior.

The actual answer, the ad eventually revealed, was that the two photographs were actually the same photograph except that in one, the color of the man’s skin was white and in the other, black. The lesson? It is difficult to look beyond race even when we are trying hard to do that, and particularly difficult when we are talking about crime and punishment.

Here’s another, more chilling, example. A 1983 study by law professor David Baldus, which examined every homicide in Georgia, demonstrated that only two factors determined whether a defendant ended up on death row — the race of the defendant and the race of the victim.

A defendant being black instead of white means the odds of a death sentence doubled. The race of the victim matters even more. A victim being white instead of black meant a defendant was 4.3 times more likely to be executed. The Baldus study was replicated in a dozen states, both north and south. The racist results of capital punishment, it turns out, are reflected throughout the rest of the criminal justice system as well.

Recent FBI data show, for example, that across America blacks are arrested for marijuana offenses at a rate 400 percent greater than whites even though everyone uses marijuana at about the same rate. And when it comes to dangerous illegal drugs, the story gets even worse.

Consider cocaine. Crack and powder cocaine are equally addictive. The difference between them is that crack is most frequently sold and used in black ghettos while powder is the cocaine of choice in white suburbs. For years the Federal Sentencing Guidelines required crack cocaine users (blacks) to be imprisoned 100 times longer than powder cocaine offenders (whites) for the equivalent amounts of the drug. The Fair Sentencing Act, enacted by Congress in 2010, reduced the disparity to 18 to 1.

Defenders of George Zimmerman’s acquittal point out that the critics did not sit in court, view all the evidence, hear all the testimony and arguments and the judge’s instructions and that the prosecutors with their poor performance may not have established proof beyond a reasonable doubt. That argument sounds logical but diminishes the importance of emotion in a jury verdict. Here the jurors clearly empathized with George Zimmerman, and not with Trayvon Martin.

Try this fact pattern: At night a black teenager in a hoodie carrying a loaded firearm is following a white man in a three-piece suit. The most dangerous thing in the white man’s possession is a candy bar, apt to increase his cholesterol. The black teenager believes the white man is a real estate guy, coming into his neighborhood to rip off his family, his neighbors. A police officer twice instructs the teenager to stop his stalking and surveillance but to no avail. The black kid confronts the white man, a fight breaks out, and the black kid shoots the white man dead.

Under these circumstances would the police fail to undertake a serious investigation? Would the black teenager have been brought into custody and immediately interrogated? Would charges quickly have been brought? Would the jury conclude that not only was the black teenager not guilty of murder or manslaughter but indeed not guilty of any crime?

In the mid-1980s I met Warren McCleskey, a polite soft-spoken young man who was deeply remorseful for his crime, and his lawyer in the attorney-client visiting room for death row inmates at the state prison in Jackson, Ga. McCleskey was black and the victim was white, and his case — based on the Baldus study — was headed to the Supreme Court. America’s highest court accepted the Baldus study as accurate, but 5-4 ruled that the systemic racism in imposition of capital punishment didn’t matter.

On Sept. 26, 1991, Warren McCleskey was strapped into the electric chair, electrodes were attached to his skull, a final prayer was read, and he was executed.

The Daily Hampshire Gazette has provided a lot of coverage and commentary on George Zimmerman and Trayvon Martin, and I understand the feeling that enough is enough. Given that, I pledge to stop harping about the case and the next one like it — just as soon as the criminal justice system stops being broken and racist.

William Newman is a Northampton lawyer and host of a WHMP weekday program. His column appears the first Saturday of the month. He can be reached at opinion@gazettenet.com.


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