Saturday, March 3, 2012
Robert J. Smith and Bidish Sarma (DePaul University College of Law and The Justice Center's Capital Appeals Project) have posted How and Why Race Continues to Influence the Administration of Criminal Justice in Louisiana (Louisiana Law Review, Vol. 72, p. 361, 2012) on SSRN. Here is the abstract:
"In the final analysis, though, I am bound to enforce the laws of Louisiana as they exist today, not as they might in someone’s vision of a perfect world. That is what I have done. And that is what I must continue to do."
Reed Walters, district attorney in LaSalle Parish responsible for prosecuting the Jena Six (Justice in Jena, N.Y. Times, Sept. 26, 2007).
"[These laws] do not on their face discriminate between the races, and it has not been shown that their actual administration was evil; only that evil was possible under them. It follows, therefore, that the judgment [upholding these laws] must be affirmed."
Unanimous opinion of the United States Supreme Court in Williams v. Mississippi, 170 U.S. 213, 225 (1898), which upheld property qualifications, educational qualifications, and other means explicitly designed to prevent African Americans from being qualified to vote.
On May 12, 2010, we went to the Louisiana Supreme Court to argue on behalf of a death row inmate in State v. Dressner. The case emerged from Jefferson Parish, Louisiana. At trial, the prosecution used its peremptory challenges to exclude seven of nine qualified prospective black jurors. Only one person of color ultimately sat on the jury, despite the fact that African-American residents constituted approximately 25% of the population in the Parish. Four years earlier, attorneys from our office urged the Louisiana Supreme Court to reverse another case out of Jefferson Parish where the State had struck every one of the five qualified prospective black jurors. The prosecutor in that case told reporters that it was his “O.J. [Simpson] case” and later pleaded with jurors not to let Allen Snyder get away with it like O.J. did.
While briefing and arguing Dressner, we recognized that the distance between the post-Reconstruction legacy of racism in Louisiana and the present day administration of justice — much like the distance between the quote from the Supreme Court’s opinion in Williams v. Mississippi and the statement from Reed Walters — is not as far as one may wish to believe. The prosecutor at Mr. Dressner’s trial had gone so far as to suggest that he struck African-American prospective jurors because they espoused views that were friendly to the State. Nevertheless, the Louisiana Supreme Court denied the claims of prosecutorial race discrimination, rejecting them in an unpublished appendix. Yet, the question of whether the State continues to discriminate because of skin color ought not be buried or forgotten. Indeed, the racial disparities reflected across a number of criminal justice contexts in Louisiana warrant fresh inquiry.
This Article seeks to add texture to the analysis of how and why race influences the criminal justice system. It considers three mechanisms that exclude black citizens from jury service at a disproportionate rate and thus dilute their influence: (1) non-unanimous jury verdicts; (2) discriminatory peremptory challenges; and (3) death-qualification. It details how African Americans are systematically disenfranchised from participating in the administration of justice and why these processes drive substantively unequal outcomes. The Article’s aim is primarily descriptive. Part I provides the contemporary context, setting out the racial disparities that pervade Louisiana’s criminal justice system. These outcomes are largely a result of the processes that are numbered above and explored in the four parts that follow. Part II explores how the laws enacted by nineteenth-century white supremacists continue to operate today, and do so — regardless of modern intent — in a way that executes their intended discriminatory purposes. Part III discusses the State’s use of peremptory challenges. These challenges do not stem from discriminatory origins but nonetheless perpetuate racial exclusion. Part IV describes the racial impact that death-qualification has on juries’ composition in capital cases. Part V concludes, observing that these factors are both interdependent and mutually reinforcing. Each factor causes negative feedback loops that inhibit the ability of minority group members to participate meaningfully in the justice system and exact political change.