An often-cited criticism: The police force is too White. Well, the legal profession is even whiter and the job much more subjective. Consider the role prosecutorial discretion plays in the administration of criminal justice. Insufficient resources and an overflowing criminal docket require prosecutors act in a role the public views as judge and jury.
Without objective criteria, prosecutors decide whom to charge and what those charges will be. They alone decide whether to offer a plea bargain or proceed to trial. They are usually allowed to exercise this power with impunity and outside of public view, but in the last year, the curtain has been pulled back.
In a rash of high profile police killings of unarmed Black males — John Crawford III, Michael Brown, Eric Garner, Tamir Rice, and Walter Scott — White prosecutors appeared reluctant to vigorously pursue indictments, even when facts were highly disputed.
Reports by Talking Points Memo, The Wall Street Journal and The Washington Post conclude that almost none of the police officers who kill roughly 1,000 people each year is ever charged.
By contrast, Marilyn Mosby joins a strong block of Black prosecutors, including U.S. Attorney General Loretta Lynch and her predecessor Eric Holder, who are able to respect and support law enforcement without ignoring the complexities of police power. Mosby is Baltimore City state’s attorney. As Brooklyn’s district attorney, Kenneth Thompson, put it in addressing an indictment against a police officer who shot an unarmed man in a stairwell: “Acts of police brutality are not only crimes against the individual victim but also are attacks on the communities in which they occur…The people of Brooklyn have voted for their District Attorney to keep them safe from all crimes, including those of police brutality.” Thompson is African American.
A 2011 study of the New York County District Attorney’s Office (DANY) by Vera Institute of Justice found Black defendants 19 percent more likely than Whites to be offered plea deals that included jail or prison time. Blacks charged with misdemeanor person offenses or drug offenses were more likely than Whites to be held in jail or prison at their arraignment and to be offered plea deals that included jail time. Such biases are largely responsible for the current makeup of the prison population. In 2012, African Americans and Hispanics accounted for 58 percent of those in prison for drug offenses.
While unconscious-bias training and stricter rules might improve the situation, the best way to stem discrimination is to have more Black faces in the room.
There are no Black attorneys in Ferguson
How we get those Black attorneys in the room is a difficult question that demands an answer. Just ask the residents of Ferguson, Mo.
The Justice Department’s lengthy March report on Ferguson linked a lack of legal representation with police misconduct. In blistering detail, the report demonstrated how the police and courts, whose employees have a proclivity for racist jokes and discriminatory behavior, employ tactics that include harassment involving traffic stops, court appearances, high fines, and the threat of jail to extort money from Black residents.
By disproportionately targeting African Americans and routinely violating their constitutional rights, Ferguson created the predatory environment in which a jaywalking stop by police officer Darren Wilson could escalate to the homicide of Michael Brown.
But why do we need Black lawyers?
While there are White lawyers, like the founders of ArchCity Defenders, who are committed to social justice reform and are conscientious, they comprise a very small fraction of practicing attorneys. Moreover, racial bias is a problem too great to be addressed by even the most ardent groups of well-meaning equal justice advocates.
…And black judges
Even the bench does not appear exempt from such biases. In “Myth of the Color-Blind Judge,” Pat K. Chew, a professor at the University of Pittsburgh School of Law, and Robert E. Kelley, a professor at Carnegie Mellon University Tepper School of Business, performed an empirical study of federal government harassment cases spanning 20 years and concluded:
“Our work initially confirms certain characteristics of racial harassment cases: the vast majority of the judges are White; the vast majority of the plaintiff-employees are African American; the vast majority of accused harassers are White; and that, when studying case outcomes, plaintiff- employees have a very poor win rate in general—succeeding in only 22 percent of cases overall.
According to the American Bar Association, in state trial courts, where the vast majority of cases are handled, only 7 percent of judges are Black.
Judicial homogeneity naturally leads to a lack of diversity among law clerks, who can have enormous influence with their judges. In 1998, USA Today caused an uproar among social justice advocates and members of the Congressional Black Caucus when its investigation revealed that of the 394 law clerks hired by the nine sitting Supreme Court Justices, only seven had been African American. Then sitting justices William Rehnquist, Anthony Kennedy, Antonin Scalia, and David Souter had never hired a Black clerk.