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Nacdl Report Racial Disparities in Criminal -Court Processing

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Prepared by:
National Association of Criminal Defense Lawyers
The Sentencing Project
1. Article 2 of the International Convention on the Elimination of All Forms of Racial
Discrimination (“Convention”) requires the state party “to pursue by all appropriate
means and without delay a policy of eliminating racial discrimination.” The Convention,
in Article 2(c), also calls upon the government to “take effective measures to review
governmental, national, and local policies” that have a racially discriminatory effect.
More specifically, Article 5(a) of the Convention requires the state party “to prohibit and
to eliminate racial discrimination in all its forms” and to ensure “[t]he right to equal
treatment before the tribunals and all other organs administering justice.”
2. In practice, the United States government frequently falls short of its obligations under
Article 2 and Article 5 in the areas of criminal court case processing. Every year, more
than 1 million Americans are sentenced in United States criminal courts, many without
the benefit of adequate counsel. These individuals face a system that privileges the
prosecutor and is structurally oriented to reward efficiency through plea bargains, rather
than reinforcing institutional safeguards intended to achieve fairness in outcomes.
3. Because African Americans are disproportionately represented at all stages of the
criminal justice system, any showing of procedural or substantive unfairness in policing,
courts, or corrections can be presumed a priori to disproportionately impact communities
of color. We urge the Committee to consider three areas of concern in American criminal
court processing.
4. First, the centralization of authority and discretion within the office of the prosecutor
has tipped the balance of power dangerously in favor of the state in criminal proceedings.
Prosecutors wield considerable discretion with respect to whether to bring charges at all,
and if so, which charges to bring. As is the case at any point in the criminal justice system
where individual actors exercise broad discretion, there is substantial room for the
operation of both conscious and unconscious racial discrimination in decision making.
The prosecutor’s ability to control sentencing and plea bargain outcomes through
charging practices threatens the viability of the American adversarial court system. The
United States lacks viable oversight mechanisms to hold prosecutors accountable when
they engage in racially discriminatory conduct that jeopardizes the fairness of the
criminal court process.
5. The equal treatment before the courts required by Article 5 is jeopardized as a result of
the disproportionate authority and discretion that has been centralized in the office of the
prosecutor over the last 30 years. In an adversarial system that determines guilt or


innocence based on the interplay of two equally situated parties, tipping of the balance in
the favor of one of these parties threatens to subvert the fairness of the outcome. The
scope of the impact of prosecutorial decision-making in shaping the racially disparate
patterns witnessed in the United States criminal court system cannot be overstated.
6. Secondly, General Recommendation XXXI, ¶ 30 equates the “guarantees of a fair trial
and equality before the law” with the establishment of a “system under which counsel . . .
will be assigned free of charge.” Notwithstanding the well-established constitutional
protections ensuring the right to counsel for criminal defendants at trial and the public
provision of counsel for indigent defendants facing potential incarceration cited by the
United States in its Periodic Report at ¶ 152, the practical application of these protections
across the country routinely fails to meet even the most rudimentary requirements of a
fair trial.
7. More than three-quarters of criminal cases in the United States require the public
provision of counsel. Criminal defendants of color are more likely to utilize publicly
funded defense services than white defendants in light of racial disparities in income,
wealth, and access to opportunity discussed elsewhere in this report. As a result, the
crisis in America’s public defense system has a disproportionate impact on communities
of color. The dramatic under-funding and lack of national standards governing
America’s indigent defense services has made people of color second class citizens in the
American criminal justice system, and constitutes a violation of the U.S. Government's
obligation under Article 2 and Article 5 of the Convention to guarantee “equal treatment”
before the courts.
8. Lastly, mandatory minimum sentencing practices, the result of 30 years of legislative
policies that have usurped judicial discretion, have further enhanced the role of the
prosecutor, greatly increased the length of imprisonment in many cases, and have had a
profound impact on African American and Latino/a communities. General
Recommendation XXXI calls on governments to pay “special attention . . . to the system
of minimum punishments and obligatory detention applicable to certain offenses” that
have a disproportionate impact on racial and ethnic minorities. Since 1980, the United
States prison population has more than tripled, due in large part to the imposition of
longer sentences pursuant to mandatory minimums. Much of this growth has been fueled
by law enforcement and prosecutorial practices in the “war on drugs” which
disproportionately target communities of color. African Americans currently comprise
40% of the prison population, despite the fact that they represent only 12% of the total
United States population. These disparities exist among women as well. In 2005, black
women were more than three times as likely as white women to be incarcerated in
prison or jail, and Hispanic women 69% more likely.1 These trends can be directly traced
to the evolution of punitive sentencing laws, most notably mandatory minimum sentences
for drug offenses.


Paige M. Harrison and Allen J. Beck, Prisoners in 2005, Bureau of Justice Statistics, November 2006, at


9. The impact of prosecutorial decision-making in shaping the racially disparate
outcomes in the United States criminal justice system about which the Committee
expressed considerable concern in ¶ 395 of its 2001 Concluding Observations cannot be
overstated. Questions of prosecutorial decision-making are more important than ever
because the courts are “producing more, rather than less, racially disparate outcomes.”2
Nearly one-third of black males between the ages of 20 and 29 are “under some form of
criminal justice supervision on any given day – either in prison or jail or on probation or
parole.”3 As of 2004, the imprisonment rates for black and Hispanic males were seven
and three times the rate for white males, respectively.4 The figures are similar for women
of color. African-American women comprise only 13 percent of the U.S. female
population but make up 48 percent of the state female prison population.5 Moreover, a
recent study demonstrates that even though “women of all races use drugs at
approximately the same rate,” women of color are imprisoned “at much higher rates.”6
10. Prosecutors play a critical role in generating these racially disproportionate
outcomes, given their wide-ranging and “essentially unchecked discretion.”7 Thus, in the
event that a prosecutor holds any racially discriminatory tendencies – either consciously
or unconsciously – those tendencies will invariably affect the criminal justice system in
some way.8 After all, in the U.S., prosecutors have “sole [charging] discretion” – “from
the decision whether to prosecute at all to the selection of the nature and the number of
charges to bring before the grand jury.”9 Because mandatory sentencing laws and
sentencing guidelines “virtually eliminate judicial discretion,” the prosecutor’s charging
decision “often effectively determines the defendant’s sentence.”10 Roughly 95 percent
of defendants plead guilty without ever going to trial;11 as a result, the charging decision -


“Note: Judging the Prosecution: Why Abolishing Peremptory Challenges Limits the Dangers of
Prosecutorial Discretion,” 119 Harv. L. Rev. 2121, 2123 (2006).
Marc Mauer, The Crisis of the Young African American Male and the Criminal Justice System (April
1999), available at
See Judging the Prosecution, supra note 2, at 2121.
Nekima Levy-Pounds, From the Frying Pan into the Fire: How Poor Women of Color and Children Are
Affected by Sentencing Guidelines and Mandatory Minimums, 47 Santa Clara L. Rev. 285, 298 (2007).
American Civil Liberties Union, Caught in the Net: The Impact of Drug Policies on Women and
Families, March 15, 2005, available at (last
visited Nov. 16, 2007).
See Judging the Prosecution, supra note 2, at 2123.
See Angela J. Davis, Prosecution and Race: The Power and Privilege of Discretion, 67 Fordham L. Rev.
13, 25 (1998) (stating that prosecutors’ “decisions potentially have the greatest discriminatory impact”).
Douglas B. Bloom, United States v. Booker and United States v. Fanfan: The Tireless March of Apprendi
and the Intracourt Battle to Save Sentencing Reform, 40 Harv. C.R.-C.L. L. Rev. 539, 553 (2005) (“For any
given criminal underlying conduct, prosecutors have a wide menu of applicable charges from which to
choose.”); Suzanne Roe Neely, Note: Preserving Justice and Preventing Prejudice: Requiring Disclosure of
Substantial Exculpatory Evidence to the Grand Jury, 39 Am. Crim. L. Rev. 171, 190 (2002).
See Davis, supra note 8, at 23.
See Judging the Prosecution, supra note 2, at 2125.


- “[i]n conjunction with the plea bargaining process” -- “almost predetermines the
outcome of a criminal case.”12
SIDEBAR: In December 2006, six black teenagers (now known as the “Jena Six”) were
arrested for allegedly beating Justin Barker, a white classmate at Jena High School in
Jena, Louisiana.13 Prior to the attack on Barker, the town had been the site of months of
racial unrest in reaction to three white students who hung nooses – a “symbol of lynching
of African-Americans in segregationist times”14 – from a tree at the high school as a way
of warning black students against sitting beneath the tree.15 A number of racial fights
ensued. But while white students who attacked black students were charged with
misdemeanors (if at all),16 five of the six black teenagers involved in the attack on Barker
were charged with attempted second-degree murder and conspiracy to commit murder,
carrying prison sentences of up to 80 years.17 These charges sparked a massive civil
rights demonstration.18 Critics accused the prosecutor of “treating blacks more harshly
than whites.”19 The Jena Six case reveals that even now the race of the alleged
perpetrators and the alleged victim plays an important, if not paramount, role in
prosecutors’ charging decisions.
11. “Like the charging decision, the plea bargaining process is controlled entirely by the
prosecutor.”20 The prosecutor alone decides whether or not to offer the defendant a
plea.21 In a typical plea bargain, a defendant pleads to a lesser offense and forgoes his or
her right to trial in exchange for the prosecutor’s decision to drop the more serious
charges. The problem is that prosecutors have the “power to extract extraordinary
penalties from defendants who choose to go to trial and lose” as a result of mandatory
minimum sentences.22 Prosecutors may leverage repeat-felony-offender rules and
mandatory minimum sentencing to elongate the sentence a defendant will face.23
Furthermore, the so-called limited sphere of federal criminal law now includes hundreds
of crimes,24 the number of state crimes has multiplied, and the ranks of prosecutors have


See Davis, supra note 8, at 23.
Howard Witt, Jena 6 defendant out of jail, Chicago Tribune (Sept. 28, 2007).
Robert Raffaele, U.S. House of Representatives Committee Probes Case With Racial Overtones, VOA
News (Oct. 17, 2007).
See id.
See Witt, supra note 13.
Sharpton calls for investigation of prosecutor in racially charged school fight case, International Herald
Tribune (Sept. 9, 2007).
Howard Witt, Jena 6 teen’s return to jail draws queries, Chicago Tribune (Oct. 13, 2007).
Michael Kunzelman, Judge steps out of Jena Six news case; another judge will decide whether to open
proceedings, The Associated Press (Oct. 30, 2007).
See Davis, supra note 8, at 25.
See id.
Craig Horowitz, The Defense Rests - Permanently, New York, Mar. 4, 2002, available at (last visited Sept. 20,
See id.
Although historical state governments (rather than the federal government) historically regulated
criminal conduct, more recent legislative changes have “forever altered the landscape of criminal law,”
with the federal government “encroach[ing] upon what had been a bastion of state sovereignty.” See


expanded.25 As a result, today’s defense lawyers are “not so much negotiating as
pleading” at the bargaining table.26 There is an increasing basis for concern that plea
bargains lead to both the conviction of innocent defendants and the imposition of
excessive sentences.27
12. Against this backdrop, meaningful accountability measures are imperative to ensure
the proper exercise of this expansive prosecutorial authority. As one scholar has pointed
out, “[o]ne would expect that the more power an administrative agent has to affect
people’s lives…, the more this power will be confined by clear guidelines and checked
by judicial review.”28 In reality, in the U.S. there are “few, if any, consequences for
prosecutorial misconduct.”29 Prosecutors’ decisions are “seldom subject to review in
higher courts.”30 This violates Article 2's requirement that states take effective measures
to review governmental, national and local policies…which have he effect of creating or
perpetuating racial discrimination, as well as the obligation under Article 5 to eliminate
racial discrimination in all its forms and to guarantee equality before the law, including
the right to equal treatment before the courts and the obligation under Article 6 to obtain
effective protection and remedies.
13. In addition to racially discriminatory or disparate exercises of prosecutorial
discretion, prosecutorial misconduct also contributes to racial disparities in incarceration
rates. The consequences of such misconduct are minimal for the prosecutors involved, yet
severe for affected criminal defendants. One study revealed that state and local
prosecutors have “bent or broke[n] the rules to help put 32 innocent people in prison,
some under death sentence, since 1970.”31 Likewise, as of April 2006, we know that
another 175 wrongfully convicted individuals who were eventually exonerated as a result
of the post-conviction DNA work by The Innocence Project in New York.32 In almost
two-thirds of these wrongful convictions, police or prosecutorial misconduct “‘played an
important role;’” 33 and more specifically, the misconduct took the form of “suppression
Robert Heller, “Comment: Selective Prosecution and the Federalization of Criminal Law: The Need for
Meaningful Judicial Review of Prosecutorial Discretion,” 145 U. Pa. L. Rev. 1309, 1310 (1997).
See id.
See id.
Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 Tul. L. Rev. 695, 706 (2001).
Yoav Sapir, “Criminal Law: Pursuing New Visions of Justice: Neither Intent Nor Impact: A Critique of
the Racially Based Selective Prosecution Jurisprudence and a Reform Proposal,” 19 Harv. BlackLetter J.
127, 139 (2003).
Ellen Yaroshefsky, “Zealous Advocacy in a Time of Uncertainty: Understanding Lawyers’ Ethics:
Wrongful Convictions: It Is Time to Take Prosecution Discipline Seriously,” 8 D.C. L. Rev. 275, 276-77
Ellen S. Podgor, “Symposium: The Ethics and Professionalism of Prosecutors in Discretionary
Decisions,” 68 Fordham L. Rev. 1511, 1516 (2000).See, e.g., United States v. Tucker, 78 F.3d 1313, 1317
(8th Cir. 1996) (discussing the "unreviewability" of prosecutorial discretion).
Michael J. Sniffen, “Dozens falsely imprisoned amid thousands of cases of misconduct by local
prosecutors,” Washington Dateline (June 26, 2003).
Barry C. Scheck, “Article: Barry Scheck Lectures on Wrongful Convictions,” 54 Drake L. Rev. 597, 600
n.4 (2006).
James S. Liebman, “Article: The Overproduction of Death,” 100 Colum. L. Rev. 2030 (2000) (citing
Barry Scheck et al., Actual Innocence: Five Days to Execution and Other Dispatches from the Wrongly
Convicted (2000), at 107-25, 172-82.


of evidence of innocence, knowing use of false testimony, witness coercion and other
evidence fabrication, and false statements to the jury.”34 For the 175 exonerated
individuals, the circumstances were fortunate in that there was DNA. On the other hand,
there are “thousands” of wrongfully convicted people who remain in prison.35
14. Unfortunately, not many strides have been made to ensure that the prosecutorial arm
of our system operates in compliance with the US government's obligations under Article
2 so that all public authorities and public institutions, national and local, act in conformity
with their obligations to eliminate racial discrimination.36 Out of 381 homicide
convictions reversed due to prosecutorial misconduct – and specifically for presenting
false evidence or for failing to disclose exculpatory evidence – “not one prosecutor faced
trial for the misconduct.”37 Similarly, among 1,464 lawyer discipline cases between 2001
and 2005, only one disciplinary action was against a prosecutor.38 In fact, according to
one commentator, a lawyer who steals his clients’ money faces more stringent
consequences than the lawyer “who, intentionally or through gross negligence, steal[s]
years of a person’s life.”39 Common sense suggests that the exact opposite should be


Prosecutors’ offices should systematically collect data on their charging decisions.
This should include documenting: the racial and ethnic backgrounds of those
defendants whom prosecutors decided to prosecute, the racial and ethnic
backgrounds of those whom prosecutors decided not to prosecute, and the
proportion of arrested racial and ethnic minorities charged with a crime, in
comparison to whites.
Prosecutors’ offices should make a systematic effort to investigate instances of
alleged prosecutorial misconduct. One scholar has suggested borrowing methods
from the airline industry.40 In that industry, upon the discovery that a person has
engaged in “serious… misconduct…that threatens life, health, or public welfare,”
the person is “audit[ed]…to determine whether [he] engaged in similar
misconduct in other cases.”41 Among other things, his supervisors and trainers are
examined in order to determine the “weaknesses in the system and to take
remedial action.”42


See Liebman, supra note 33, at 107-25, 172-82.
See Yaroshefsky, supra note 29, at 285.
See Sapir, supra note 28, at 137.
Catherine Ferguson-Gilbert, “Comment, It is Not Whether You Win or Lose, It is How You Play the
Game: Is the Win-Loss Scorekeeping Mentality Doing Justice for Prosecutors?,” 38 Cal. W. L. Rev. 283,
303 (2001)
Mike Zapler, “State Bar Ignores Errant Lawyers,” San Jose Mercury News (Feb. 12, 2006).
See Yaroshefsky, supra note 29, at 283-83. See Bennett L. Gershman, The New Prosecutors, 53 U. Pitt.
L. Rev. 393, 445 (1992) (explaining that the lack of consequences of prosecutorial misconduct “contrasts
sharply with the fairly common use of disciplinary sanctions against private attorneys in civil and criminal
See Yaroshefsky, supra note 29, at 285-86.
Id. at 286.



The United States should call for an independent, standardized oversight
committee based in each state charged with monitoring the activities of local
prosecutors, investigating complaints, and issuing recommendations to improve
transparency and accountability.

15. As reported by the U.S. Government in its Periodic Report at ¶ 152, every person
accused of a crime that carries a potential sentence of incarceration in the United States
of America is entitled to a lawyer. If the accused cannot afford to hire a lawyer, the
government must provide her with one. The system for providing counsel to a defendant
who cannot afford to hire an attorney is called the public defense system. Public
defenders are the only lawyers poor people, who are disproportionately people of color
charged with crimes, are able to access.
16. Although, the government states in ¶ 152 of the Period Report that counsel for
indigent defendants is provided without discrimination based on race, profound failures
in the fragmented, patchwork public defense system in the U.S. have a disproportionate
effect on people of color in the US, thereby violating Articles 2 and 5 of the Convention.
17. Members of minority races utilize indigent defense services more than any other
racial group because they are more likely to live in poverty as a result of multiple factors
articulated in other sections of this report, most notably the section on structural racism.
In 2002, the percentage of non-Hispanic whites living in poverty was 8%, while the
percentage of non-Hispanic blacks living in poverty was 23.3% and the percentage of
Hispanics living in poverty was 21.8%.43 With respect to the utilization of indigent
defense services, these disparities only increase. For example, in Alabama in 2001, just
under 60% of defendants using the indigent defense system were black, despite the fact
that African-Americans only make up 26% of the state’s population.44 Overall, 77% of
black inmates in state prisons reported having had lawyers appointed for them by the
court, whereas only 69% of white inmates report having utilized public defense
services.45 In the federal system, the disparity is worse; 65% of black inmates report
using public defense services compared with only 57% of white inmates.46
18. Contrary to the Committee's interpretation of Article 5's requirement that signatory
states guarantee equal rights before the courts contained in General Comment XXXI,
which states that "[e]ffectively guaranteeing these rights implies that States parties must
set up a system under which counsel and interpreters will be assigned free of charge,"
public defense services in the United States are not governed by any national,

Mark Levitan, Poverty in 2002: One-Fifth of the City Lives below the Federal Poverty Line, September
30, 2003, available at
David Allan Felice, Justice Rationed: A Look at Alabama’s Present Indigent Defense System with a
Vision Toward Change, 52 Ala. L. Rev 975, 994 (2001).
Caroline Wolf Harlow, Defense Counsel in Criminal Cases, Bureau of Justice Statistics Special Report
(Nov 2000), at 3.


governmental standards. As discussed in the Periodic Report at ¶ 152, the federal
government has sporadically studied the services provided in states and localities and
helped to develop nonbinding "best practices,"47 without allocating any resources to
support their implementation. It has failed to impose any national standards for
guaranteeing the right to effective counsel without discrimination based on race.
Moreover, even these minimal efforts have been significantly curtailed in the past five
19. State governments are not required by law to provide any oversight for indigent
defense services. As a result, most of the systems are in disarray. Many, including those
in Pennsylvania, Michigan, California, Arizona and New York, simply delegate
responsibilities for providing indigent defense services, particularly trial level services, to
the multitude of counties within the state, with no guidance or standards to govern the
nature or provision of services. 48
20. Public defense services in most parts of the United States are also dramatically
under-funded. The federal government provides minimal to no financial support for
indigent defense in state courts. A recent ABA study concluded that funding for public
defense services is “shamefully inadequate.”49 In the study report, one witness
illuminated the problem on a national scale by comparing the United States to England.
The witness stated, “The expenditures per capita are $34 per person in England and
Wales. In the United States, the comparable figure is about $10 per person, and in 29
states the expenditures are less than $10 per capita. England is outspending the United
States by more than three to one.”50
21. As a result of chronic under-funding, states and municipalities are compromising the
quality of their public defense programs to reduce costs – using fewer lawyers to handle
more cases, using less-experienced lawyers to handle more complicated cases, and
cutting back on training, access to experts and other services necessary for adequate
preparation of a criminal defense. The consequences of this neglect include:

In Cook County, Illinois [Chicago], the felony public defenders handle
approximately 250 cases a year, over 150% of the maximum case limit


In the past, the Department of Justice held symposia, published studies and manuals, and collected and
analyzed data on state public defense systems. For example, in 2000, the Department held a National
Symposium on Indigent Defense and published a report on the findings, as well as a number of manuals.
See, e.g., Keeping Public Defender Workloads Manageable, DOJ Bureau of Justice Assistance (2001),
available at; Contracting for Indigent Defense Services: A
Special Report, DOJ Bureau of Justice Assistance (2000), available at . Although some data continues to be collected from states, all
symposia and publication of most of the studies and manuals has ceased.
The Spangenberg Group, State Indigent Defense Commissions (Dec 2006), at 3, available
Gideon’s Broken Promise: America’s Continuing Quest for Equal Justice, American Bar Association
Standing Committee on Legal Aid and Indigent Defense (Dec 2004), at V, available at
Id. at 8.


proscribed by national experts. Misdemeanor public defenders handle
more than ten times the maximum recommended number of cases.51

In Clark County, Nevada [Las Vegas], a defendant charged with murder
was appointed an attorney who was just out of law school and who had
never handled a murder case before. The defendant was found guilty and
sentenced to death. Fourteen years later, the defendant was exonerated
and released from prison.52


A number of states, including Nevada, New York, and Pennsylvania have
no state-wide training program for public defense lawyers.53

22. There has also been a dramatic increase in the use of contract public defenders across
the country. These attorneys are not employees of any government agency, but rather are
lawyers in private practice who are paid a fixed-price annually to take a percentage of the
public defense cases that arise in their locality. This structure does not impose any
standards in the provision of criminal defense, does not limit the number of cases the
contract defender can take, does not prohibit contractors from taking on additional,
paying clients, and does not provide them with any overhead. Fixed-price contracts
encourage attorneys to process cases quickly, with as little effort as possible.
23. In 1997, a rural county in California agreed to pay a low-bid contract defender
slightly more than $400,000 a year to represent one half of the county's indigent
defendants. The defender employed no paralegals or investigators. Together with two
associates, the defender handled over 5,000 cases per year (or over 6 cases per attorney
per week day).54 In the past few years, more counties in California have turned to lowbid contract defender systems as a means of cost-savings.
24. The lack of oversight, standards and funding for public defense services harm public
defense clients, who are disproportionately people of color, for the following reasons:

Public defense lawyers have less contact with their clients. Of inmates
who received publicly funded counsel, only 37% of state inmates and 54%
of federal inmates spoke with their attorneys within the first week. In
contrast, 60% of state inmates and 75% of federal inmates who hired
private counsel had contact with their lawyers within a week of arrest.


Testimony of John Wesley Hall, Jr. of the National Association of Criminal Defense Lawyers before the
Cook County Commissioners (January 30, 2007), available at$FILE/Hall_Testimony.pdf; Abdon M. Pallasch,
Calls to Limit Cases Amuse Public Defenders, Chicago Sun Times (July 24, 2006), available at
Miranda v. Clark County , 279 F.3d 1102, 1112 (9th Cir. 2002).
Gideon’s Broken Promise, supra note 49, at 11.
U.S. Department of Justice, Bureau of Justice Assistance, Contracting for Indigent Defense Services: A
Special Report (April 2000), available at


Inmates represented by public defenders were also more likely to report
not having spoken to their lawyer at all before resolving their case. 55

Clients of public defenders are also less likely to go to trial and more
likely to be convicted when they proceed to trial.56

25. Janet Reno, former United States Attorney General, once said “a good lawyer is a
best defense against a wrongful conviction.” 57 Providing competent defense services for
poor people of color is essential to ensuring equal access to the courts as required by the
Convention. Because the people who use public defense services are disproportionately
people of color, they make up a disproportionate number of the wrongfully convicted.
For example, 64% of the people who have been wrongfully convicted of rape (and then
exonerated through DNA) are black, even though African-Americans make up only 12%
of the United States population.58 Without a functional public defense system, it cannot
be said that a state is in compliance with Article 5 of the CERD as interpreted by General
Comment XXXI.



The United States should require all indigent defense systems, state and federal, to
maintain accurate data on the race of the defendants utilizing indigent defense
services, as well as the caseloads of each defender annually, the salary of the
public defenders and/or payment structure for court appointed counsel, the
number of open cases carried over annually by defender, the percentage of cases
plea bargained and the percentage of cases tried in each case category, the average
time from arraignment to sentencing or acquittal for each case category, and the
amounts spent on investigative and expert services. These statistics would
facilitate proper evaluation of the indigent defense system and its particular
impact of the system on communities of color.
The United States should research and produce publications on best practices in
the provision of indigent defense services, including caseload management and
limitations, contracting for public defense services and oversight methodologies.
These standards should be used to establish national, enforceable guidelines
governing the provision of public counsel.
The United States should establish a fund to assist poorer state jurisdictions in
providing quality indigent defense services.


Harlow, supra note 45, at 8.
Janet Reno, Remarks at the 2000 Indigent Defense Summit, available at; see also Janet Reno, Legal Services for the Poor
Need Vigilance, USA Today (Mar 18, 1998), available at
200 Exonerated, Too Many Wrongfully Convicted, Innocence Project, available at


SIDEBAR: James Thomas, an black day laborer in Baton Rouge, Louisiana, was charged
with murder in 1996. With no money to hire a lawyer, he was forced to rely on the
government to provide him with one. Due to inattentiveness, high turn-over,
overwhelming caseloads and other problems in the public defender's office, he waited
more than ten years before going to trial. He spent more than eight of those years in
prison.59 Eventually, his case was taken over by a private lawyer, and in 2007, his case
was finally tried. It took the jury less than two hours of deliberation before acquitting
26. In ¶¶ 309-318 of the Initial, Second, and Third Periodic Reports of the United States
of America submitted to the Committee on the Elimination of Racial Discrimination in
September of 2000, the United States directly addressed racial disparity in sentencing as
it pertains to its state obligation under Article 5 of the Convention. The United States
conceded in its discussion of Article 5 in ¶ 298, that “[i]n many of the areas covered by
this article . . . serious problems exist.” Regarding disparities in sentencing, in ¶ 309 the
United States correctly identified the “war on drugs,” and particularly mandatory
minimum sentencing and disparities in the treatment of crack and powder cocaine for the
purposes of sentencing, as an area that has drawn substantial concern over the preceding
15 years.
27. In ¶ 395 of its Concluding Observations for the Initial, Second, and Third Periodic
Reports of the United States, the Committee expressed concern regarding racially
disparate rates of incarceration, particularly among African Americans and Latinos, and
called upon the United States to take deliberate action in order to ensure “equal treatment
before the courts and all other organs administering justice.”
28. Since then, the United States has failed to adequately address the identified problems
inherent in mandatory minimum sentencing or the crack and powder cocaine disparity,
both of which continue to have racially disparate impacts on people of color. General
Recommendation XXXI, ¶ 4(b) notes that “potential indirect discriminatory effects of
certain domestic legislation” can be regarded as a cause of racial discrimination.
29. Mandatory minimum sentences are statutorily prescribed terms of imprisonment that
automatically attach upon conviction of certain criminal conduct, usually pertaining to
drug or firearm offenses. Absent very narrow criteria for relief (such as certain
categories of first-time offenders or persons who have provided assistance to the
prosecution in an ongoing investigation), a sentencing judge is powerless to mandate a
term of imprisonment below the mandatory minimum. In the realm of drug offenses, by
relying exclusively upon quantity as the indicator of a defendant’s involvement in a drug
enterprise, Congress had sought to establish generalized equivalencies in punishment

Laura Parker, 8 Years in a Louisiana Jail, but He Never Went to Trial, USA Today (Aug 29, 2005), at
Laura Parker, Acquitted Man: That’s ten years they can never replace, USA Today (Feb 14, 2007), at


across drug types by controlling for the risk of the drug by adjusting the quantity
threshold. Sentences are disproportionately severe relative to the conduct for which a
person has been convicted because mandatory minimum sentences for drug offenses rely
solely upon the weight of the substance as a proxy for the degree of involvement of a
defendant’s role. This is tantamount to a “one size fits all” sentencing scheme.
30. Linking quantity with severity has had a particularly profound impact on women,
who are statistically more likely to play peripheral roles in a drug enterprise than men.
However, because prosecutors can attach drug quantities to an individual regardless of
the level of sophistication of a defendant’s participation in the charged offense, women
have been exposed to increasingly punitive sentences to incarceration. From 1986 to
1996, despite the fact that the rate at which women used drugs actually declined
substantially, the number of women incarcerated in state facilities for drug offenses
increased by 888%, compared to a rise of 129% for non-drug offenses.61 Moreover,
American drug enforcement relies on arresting individuals and offering a reduced
sentence in exchange for information on other persons engaged in criminal activity.
However, because women tend to play lesser roles in drug distribution networks, they
often do not have information of value to the prosecution. Thus, they are less likely to
benefit from a substantial assistance sentence amendment.
31. Since its inception more than a quarter-century ago, no single policy has so impacted
the racial dynamics of law enforcement, sentencing, and corrections in the United States
as the “war on drugs.” Between 1980 and 2005, the racially disparate law enforcement
practices in the “war on drugs” were the most important factors contributing to the
rapidly widening ratio of African American and white incarceration rates. Michael
Tonry, in his landmark book on American sentencing, Malign Neglect, concluded,
“[u]rban black Americans have borne the brunt of the War on Drugs. They have been
arrested, prosecuted, convicted, and imprisoned at increasing rates since the early 1980s,
and grossly out of proportion to their numbers in the general population or among drug
users. By every standard, the war has been harder on blacks than on whites; that this was
predictable makes it no less regrettable.”62
32. African Americans comprise 13 percent of the United States population and 14
percent of monthly drug users, but represent 37 percent of those persons arrested for a
drug offense and 56 percent of persons in state prison for a drug conviction.63 This is
contrary to the U.S. government's suggestion in ¶ 327, made in response to the
Committee's expressed concern regarding racial disparities in incarceration rates, that
such disparities result from differential rates of involvement in crime. Because African
Americans use controlled substances at the same rate as their representation of the

Marc Mauer, Cathy Potler, and Richard Wolf, Gender and Justice: Women, Drugs, and Sentencing
Policy, The Sentencing Project, November 1999, at 7.
Tonry, M. (1996). Malign Neglect: Race, Crime, and Punishment in America. Oxford University Press,
USA, at 105.
Drug use data from Substance Abuse and Mental Health Services Administration, Results from the 2006
National Survey on Drug Use and Health: National Findings, 2007, at Table 1.19A; arrest data from
Federal Bureau of Investigation, File UCR91300, March 2002; Ryan S. King and Marc Mauer, Distorted
Priorities: Drug Offenders in State Prison, The Sentencing Project, September 2002.


general population, there is nothing in the patterns of drug use to suggest the
disproportionalities witnessed in arrest and sentences to incarceration.
33. Mandatory minimum sentences have consistently been shown to have a
disproportionately severe impact on African Americans. A study by the United States
Sentencing Commission (“Commission”), an independent governmental agency charged
with overseeing the federal sentencing system, found that African Americans were 21
percent more likely to receive a mandatory minimum sentence than white defendants
facing an eligible charge.64 A separate study by the Federal Judicial Center also
concluded that African Americans face an elevated likelihood of receiving a mandatory
minimum sentence relative to whites.65 More recently, the Commission, in a 15-year
overview of the federal sentencing system since the full implementation of the
Sentencing Reform Act of 1984, concluded that “mandatory penalty statutes are used
inconsistently” and disproportionately affect African American defendants. 66 As a result,
African American drug defendants are 20 percent more likely to be sentenced to prison
than white drug defendants.67 Higher arrest rates of African Americans generally reflect
a law enforcement emphasis on inner city areas, where drug sales are more likely to take
place in open-air drug markets and fewer treatment resources are available.68 However,
research suggests that visible manifestations of drug selling activity are not accurate
indicators of drug use and dependency in neighborhoods and fuel widely held
misperceptions about patterns of drug abuse in American society.69 Despite average rates
of drug use among the general population, African Americans who use drugs are more
likely to be arrested than other groups. And this disparity extends throughout the
criminal justice system. In fact, simply relying upon visible drug sales as a means of
measuring the level of drug distribution in a neighborhood greatly overestimates the
degree to which African Americans are involved in the drug trade and discounts the
active drug selling economy in majority white communities that tends to take place
behind closed doors and out of public view.
34. The Commission observed that the efforts to reform the federal sentencing system,
notably in the guise of mandatory minimum sentencing and sentencing guidelines, have
had “a greater adverse impact on Black offenders than did the factors taken into account
by judges in the discretionary system in place immediately prior to guidelines
implementation” and that there is some question as to “whether these new policies are
necessary to achieve any legitimate purpose of sentencing.”70


United States Sentencing Commission, Mandatory Minimum Penalties in the Federal Criminal Justice
System, 1991.
Barbara S. Meierhoefer, General Effect of Mandatory Minimum Prison Terms: A Longitudinal Study of
Federal Sentencing Imposed, Federal Justice Center, 1992.
United States Sentencing Commission, Fifteen Years of Guideline Sentencing, 2003, at 89.
Id. at 122.
Leonard Saxe, Charles Kadushin, Andrew Beveridge, David Livert, Elizabeth Tighe, David Rindskopf,
Julie Ford, and Archie Brodsky, “The Visibility of Illicit Drugs: Implications for Community-Based Drug
Control Strategies,” American Journal of Public Health, Vol. 91, (12), pp. 1987-1994, 2001.
Id. at 1990.
United States Sentencing Commission, supra note 66, at 135.


35. The broad range of mandatory minimum sentences for drug offenses ushered in by
the Anti-Drug Abuse Act of 1986 included substantially different penalty structures for
crack and powder cocaine. The voiced rationale at that time was that the smokeable form
of cocaine was far more addictive, presented more dangerous long-term consequences of
use, and its distribution markets had a greater association with violence.71 The sub-text
was that crack cocaine was perceived as a drug of the Black inner-city urban poor, while
powder cocaine, with its higher costs, was a drug of wealthy whites. Crack and powder
cocaine share the same pharmacological roots, but crack cocaine is cooked with water
and baking soda to create a hard, rock-like substance that can be smoked. Crack cocaine
is sold in small quantities and is a cheaper alternative to powder cocaine, thereby making
it affordable to people who had not traditionally used cocaine. Its advent in the 1980s in
a number of major urban areas in the United States was accompanied by massive media
attention of the drug’s meteoric rise and its associated dangers. A core component of the
media coverage was the thinly-veiled (and unfounded) link between the drug’s use and
low-income, communities of color. In a matter of weeks, crack cocaine was widely held
by the American public to be a drug that was sold and used by poor African Americans.
This framing of the drug in class and race-based terms provides important context when
evaluating the legislative response.
36. The resulting legislation punished crack cocaine with historically punitive sanctions.
Crack cocaine is the only drug in which simple possession can result in a five-year
mandatory sentence. A defendant convicted with five grams of crack cocaine – between
10 and 50 doses – will receive a five-year mandatory sentence. To receive the same
sentence for a powder cocaine violation, a defendant would have to have been involved
in an offense involving 500 grams – between 2,500 and 5,000 doses. This is commonly
referred to as the “100-to-1 sentencing disparity.” In order to trigger a ten-year
mandatory sentence, a defendant would need to be charged with 50 grams of crack
cocaine – between 100 and 500 doses – or 5,000 grams of powder cocaine – up to 50,000
37. The impact of this policy in the African American community has been nothing less
than devastating. While two-thirds of regular crack cocaine users in the United States are
either white or Latino, 82 percent of those persons sentenced in federal court for a crack
cocaine offense are African American.72 Thus, African Americans disproportionately
face the most severe drug penalties in the federal system. The average sentence for less
than 25 grams of crack cocaine is 65 months, compared to 14 months for the same
quantity range of powder cocaine.73


As has been documented repeatedly, history has proven all of these concerns unfounded. See The
Sentencing Project, Federal Crack Cocaine Sentencing, 2007.
Substance Abuse and Mental Health Services Administration, Results from the 2005 National Survey on
Drug Use and Health: Detailed Table J, 2006, at Table 1.43a; and, United States Sentencing Commission,
Report to Congress: Cocaine and Federal Sentencing Policy, May
2007, at 15.
United States Department of Justice, Federal Cocaine Offenses: An Analysis of Crack and Powder
Penalties, March 2002.


38. On average, crack cocaine defendants do not play a sophisticated role in the drug
trade. Nearly two-thirds (61.5 percent) of defendants were identified as a street-level
dealer, courier, lookout, or user. Among powder cocaine defendants, this proportion was
53.1 percent. Although the distribution of offender roles is similar between the two
substances, the median quantity and applicable mandatory minimum is vastly different.
The median quantity for a crack cocaine street-level dealer is 52 grams, which triggers a
10-year mandatory minimum sentence. For a powder cocaine street-level dealer, the
median quantity is 340 grams, which would not even expose a defendant to a five-year
mandatory minimum. This has led the United States Sentencing Commission to conclude
that crack cocaine penalties “apply most often to offenders who perform low-level
trafficking functions, wield little decision-making authority, and have limited
responsibility.”74 Moreover, regarding the racial disparity that has been exacerbated by
federal crack cocaine sentencing, the Commission reported that “[r]evising the crack
cocaine thresholds would better reduce the [sentencing] gap than any other single policy
change, and it would dramatically improve the fairness of the federal sentencing
39. Due in large part to the racially disparate application of mandatory sentences,
African Americans, on average, now serve almost as much time in federal prison for a
drug offense (58.7 months) as whites do for a violent offense (61.7 months).76 Between
1994 and 2003, the average time served by African Americans for a drug offense
increased by 62 percent, compared with a 17 percent increase among white drug
defendants.77 Much of this disparity is attributable to the severe penalties associated with
crack cocaine.

The United States government should take steps to end all mandatory sentencing
practices, returning judicial discretion to judges;
The United States government should amend penalties for crack cocaine to be
equivalent with those for powder cocaine, at the current quantity threshold of
powder cocaine; and
The United States government should require the preparation of racial/ethnic
impact statement to be submitted in conjunction with all sentencing and
corrections legislation anticipated to effect measurable change on the incarcerated

SIDEBAR. Although Kemba Smith had no prior criminal record, mandatory minimum
sentencing laws made her and an increasing number of women casualties of excessive

United States Sentencing Commission, Report to Congress: Cocaine and Federal Sentencing Policy,
May 2002, at 100.
United States Sentencing Commission, supra note 66, at 132.
Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 2003, NCJ 210299, October 2005,
at 112.
Id.; Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 1994, NCJ 163063, April
1998, at 85.


punishments that are grossly disproportionate to the conduct for which they have been
convicted. At the age of 24, after pleading guilty to conspiracy to distribute crack
cocaine for her boyfriend’s drug enterprise, Kemba, 7 months pregnant at the time, was
sentenced to 24 ½ years in prison with no possibility of parole.
Kemba, raised in a protective, middle-class community near Richmond, Virginia, had
spent the previous four years in an abusive relationship with Peter Hall. In 1989, Kemba
had met Hall as a 19-year-old sophomore at Hampton University. He was eight years her
senior and unbeknownst to Kemba, the leader of a $4 million crack cocaine distribution
network and one of the Federal Bureau of Investigation’s 15 Most Wanted.
Their relationship was a tumultuous one. Kemba would end up making several
unsuccessful attempts to leave Hall, who abused her physically and emotionally. When
Hall was discovered murdered, the government held Kemba accountable for the total
amount of the drugs in his conspiracy charge. “I did not traffic in drugs, but I knew my
boyfriend did. I knew that while living with him that he did not have a job and we were
living off the proceeds of his drug crimes. I never claimed innocence and this is the
reason why I pled guilty,” Kemba testified before the Inter-American Commission on
Human Rights in 2006.
Yet, due to mandatory minimum sentencing guidelines, the court was unable to take into
consideration that Kemba’s compliance to participate in Hall’s illegal activities, such as
delivering money to his associates, were done out of fear for her life. It was only through
a rare granting of clemency by President Bill Clinton, that Kemba was released from
prison after spending six and half years incarcerated.