The United States Department of Justice Bureau of Justice Statistics reported that at the end of the year 2000 that there was 1,381,892 total number of prisoners under the jurisdiction of federal or state adult correctional authorities (State pp). During 2000, the prison population rose at the lowest rate since 1972 and had the smallest absolute increase since 1980 (State pp). Relative to the number of U.S. residents the rate of incarceration in prisons was 478 sentenced inmates per 100,000 residents, up from 292 in 1990, or one in every 109 men and one in every 1,695 women (State pp). In 1999, there were 3,527 individuals under the sentence of death and 84 executions (State pp).
Donna Coker reports in the June 22, 2003 issue of Journal of Criminal Law and Criminology that for the past several years the official incarceration data has revealed that African-Americans represent roughly half of incarcerated individuals, though African-Americans account for only twelve percent of the national population (Coker pp). Approximately twelve percent of African-American men between the ages of twenty and thirty-four were either in jail or prison in 2002, compared to 1.6% of white men in the same age group (Coker pp). Researchers with the Bureau of Justice Statistics estimate that twenty-eight percent of African-American males will be jailed or imprisoned during some point in their lifetime (Coker pp). One study conducted by the Sentencing Project reports that roughly one in three, or 32.2%, African-American men between the ages of twenty and twenty-nine are under the supervision of the criminal justice system on any given day (Coker pp). The "War on Drugs" policies that focus on supply-side enforcement against low-level dealers in inner city areas account for a significant amount of the racial disparity (Coker pp). Moreover, in federal prison, the federal 100 to 1 sentencing disparity between crack cocaine and powder cocaine, together with a federal law enforcement focus on crack offenses also plays a significant role in creating the disparity (Coker pp).
Racial disparities not only exist in drug sentencing, but also in death penalty sentencing (Coker pp). A survey released in 2000 and a follow-up survey in 2001 by the Department of Justice revealed that during the years 1995-2000, some 682 defendants were charged with death-eligible crimes, that is crimes for which the death penalty was a potential punishment, and of these 682 defendants, the defendant was African-American in forty-eight percent of the cases, Hispanic in twenty-nine percent of the cases, and white in only twenty percent of the cases (Coker pp). The survey also revealed a significant racial disparity in plea bargaining (Coker pp). Of the defendants in whose cases the Attorney General authorized a death penalty prosecution, and subsequently entered a plea agreement that spared them a death penalty prosecution, only twenty-five percent were African-American defendants and twenty-eight percent were Hispanic, compared with forty-eight percent of white defendants who entered into plea agreements (Coker pp). Moreover, the survey noted that there were nineteen defendants then under a federal death sentence, sixty-eight percent of whom were African-American, while only twenty-one percent were white and five percent were Hispanic (Coker pp). The racial disparities in federal death penalty data were in contrast to state death penalty data, where combined state date found that fifty-five percent of defendants awaiting execution were white and forty-three percent were African-American (Coker pp). The racial disparities in the federal system remained when additional data was collected on cases that could have been charged with death eligible offenses, but were not (Coker pp). The 2001 follow-up survey included an additional 291 cases, for a total of 973 cases (Coker pp). Of the 973 defendants who were either charged with a death-eligible offense or whose conduct was such that they could have been charged with a death-eligible offense, seventeen percent were white, compared to forty-two percent African-American and thirty-six percent Hispanic (Coker pp).
Generally speaking, criminal defendants have been unsuccessful in challenging racially disproportionate surveillance, incarceration, or application of the death penalty (Coker pp). The Court's intent-based requirements for discrimination are seldom adequate to address the kinds of systemic discrimination that are most common (Coker pp). The Supreme Court's discovery rule in Armstrong and Bass creates obstacles for defendant that exceed those created by the need to prove discriminatory intent (Coker pp). In United States v. Armstrong, and the recent per curiam decision in United States v. Bass, defendants moved for discovery in support of their selective prosecution claims (Coker pp). The defendants in the Armstrong case argued that federal prosecutors selectively chose to indict African-Americans in federal court for crack cocaine offenses, while whites were prosecuted in state court where conviction carried shorter sentences (Coker pp). To support their discovery motion, defendants offered evidence that all of the twenty-four cases closed by the Federal Public Defender's office involving defendants charged with crack cocaine offenses involved African-American defendants, that a counselor at a drug treatment center said that the number of white who use and deal drugs is equivalent to the number of racial minority persons, and that in the experience of a criminal defense attorney, many whites were prosecuted in state court for crack cocaine offenses (Coker pp). The Supreme Court ruled that to gain discovery, defendants must proffer evidence that "similarly situated" whites were treated more favorable, then it dismissed the "similarly situated" evidence proffered by the defendants, claiming that the testimony regarding the experiences of the drug counselor and the defense attorney were "hearsay and ... personal conclusions based on anecdotal evidence," and the study of cases handled by the federal public defender "failed to identify individuals who were not black and could have been prosecuted for the same offenses" (Coker pp).
In Bass, the Court reiterated its discovery standard set in Armstrong and made clear that the same standard applied even when the claim was selective prosecution in electing to pursue the death penalty (Coker pp). Bass tried to prove that the federal prosecutor's decision to pursue the death penalty in his case was based on his race (Coker pp). His primary evidence of racial effect was the 2000 Department of Justice survey described above, which reported that for the years 1998 -- 2000, fifty-one percent of death penalty defendants were fifty-one percent, compared to only twenty-five percent who were white, and that a similar disparity existed in those cases in which the Attorney General authorized death penalty prosecution but the defendant later agreed to a plea bargain (Coker pp). According to the Court, Bass's evidence was inadequate to support a claim for discovery (Coker pp). And regarding the evidence that African-Americans are charged in federal court more often with a death-eligible offense than whites, the Court determined that Bass failed to demonstrate that there were "similarly situated" whites who were not so charged (Coker pp). Moreover, the Court dismissed as irrelevant the racial disparities in plea bargaining due to the fact that Bass was offered a plea bargain but he refused (Coker pp).
The political discourse regarding the findings of the 2000 Department of Justice death penalty survey provides further evidence of the difficulty of pinning a reasonable meaning to the term "similarly situated" (Coker pp). The survey caused a response from then Attorney General Janet Reno who "directed that further study be carried out to illuminate any statistical disparities at other stages of the process, such as decisions whether to pursue federal rather than state charges in potentially capital cases"(Coker pp). Reno ordered the National Institute of Justice to solicit outside research proposals to conduct a study of the federal system, and also required U.S. Attorneys to submit summaries of all cases in which a capital eligible crime could have been charged, but was not (Coker pp). The supplemental data from the U.S. Attorneys was compiled and analyzed in a second Department of Justice Report, Survey 2001, under new Attorney General John Ashcroft (Coker pp). The 2001 survey also revealed sharp racial disparities, which included an additional 291 cases, for a total of 973 defendants (Coker pp). Of the 973 defendants who were either charged with a death-eligible offense or whose conduct was such that they could have been charged with a death-eligible offense, seventeen percent were white, compared to forty-two percent who were African-American, and thirty-six percent who were Hispanic (Coker pp).
The first survey completed under Reno's tenure reported data in a straight forward manner with little commentary, while the 2001 survey under Ashcroft argued that the racial disparities in the pool of death-eligible cases and the resulting disparity in death penalty prosecutions were the result of individual district priorities, not trends in federal prosecution (Coker pp). It noted two areas of district concern that accounted for most of the racial disparity: "enforcement effort against 'violent gangs' that traffic in illicit drugs, and inmate violence in federal prisons" (Coker pp). The 2001 survey provided examples from four districts, focusing on the Eastern District of Virginia, which sent for review sixty-six capital cases, of…