Will Sotomayor Get Her Wish for Unbiased Law?

Your Take: The NAACP LDF weighs in on the justice's complaint about racial prejudice in a case.

Mark Wilson/Getty Images News
Mark Wilson/Getty Images News

(Special to The Root) — “I hope never to see a case like this again.” With these words, Supreme Court Justice Sonia Sotomayor ended a rare and sharp rebuke (pdf) of a federal prosecutor in Texas for racially charged remarks he made during the criminal trial of Bongani Charles Calhoun. Calhoun, an African American, was convicted of participating in a drug conspiracy. At trial, he testified that he was present at — but not a participant in — a drug transaction.

On cross-examination, the trial prosecutor made his views about race and crime widely known when he said to Calhoun: “You’ve got African Americans, you’ve got Hispanics, you’ve got a bag full of money. Does that tell you — a lightbulb doesn’t go off in your head and say, ‘This is a drug deal’?” 

After explaining that the prosecutor’s question “tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation,” Justice Sotomayor, in a statement joined by Justice Stephen Breyer, chastised the prosecutor’s “pernicious … attempt to substitute racial stereotypes for evidence, and racial prejudice for reason” and explained that “such conduct diminishes the dignity of our criminal justice system and undermines respect for the rule of law.” She closed by expressing her disappointment with the Justice Department’s characterization of the comments as merely “impolitic” and with the solicitor general’s belated acknowledgment that the prosecutor acted improperly.  

Justice Sotomayor’s strong condemnation of the federal prosecutor was clearly appropriate and necessary. However, her hope “to never see a case like this again” will be met with disappointment until drastic action is taken by courts, policymakers and the public to eliminate the racial bias and disproportionality that continues to plague criminal justice. 

Although the Supreme Court has forged a handful of powerful tools that can be used to sanitize the system, some of the court’s own jurisprudence has blunted efforts to stamp out racial discrimination. Among the chief offenders is the Supreme Court’s 1987 decision in McCleskey v. Kemp. McCleskey declared that statistical evidence demonstrating that the death penalty was administered on the basis of race failed to establish a constitutional violation. The court went on to characterize racial bias in the administration of criminal justice as “inevitable.”

McCleskey’s legacy still haunts all of us. It rendered criminal-justice laws and policies that yield disparate racial impacts largely immune to constitutional challenge and, in so doing, validated the false and dangerous impression that America’s jails and courthouses are full of black and brown men because black and brown men are our country’s criminals. Thus, today, skin color remains the most salient predictor of outcomes at every point in the criminal-justice system, from encounters with the police through trial and sentencing

Of course, the history of race relations in America must shoulder most of the blame for the infusion of racial bias in our criminal-justice system. The modern criminal-justice apparatus was spawned from a dual system of crime and punishment that made distinctions based on race and was born from slavery. Reconstruction saw the enactment of arbitrary criminal laws used to extend and approximate slavery through convict leasing.

In addition, the law-and-order, tough-on-crime rhetoric that gave rise to the mass incarceration of today was first employed by segregationists resisting advances during the civil rights movement. Over time, poisonous stereotypes linking African Americans and criminality (pdf) flourished, and appeals to racial passions were met with widespread acceptance by those tasked with enforcing and vindicating the law. 

The Supreme Court was recently reminded of that history in 2011, when the case of Duane Buck was before them. Buck, an African-American man, was sentenced to death by a Texas jury after the trial prosecutor elicited testimony and presented argument indicating that Buck’s race made him more likely to be a danger in the future. As in Calhoun’s case, the court turned Buck away, with Justice Sotomayor — this time joined by Justice Elena Kagan in dissent — expressing her concern that Buck’s “death sentence [was] marred by racial overtones” after the “prosecution invited the jury to consider race as a factor in sentencing.”