Permeation of Race, National Origin and Gender Issues from Initial Law Enforcement Contact through Sentencing: The Need for Sensitivity, Equalitarianism and Vigilance in the Criminal Justice System

By Burnett, Arthur L. | American Criminal Law Review, Summer 1994 | Go to article overview

Permeation of Race, National Origin and Gender Issues from Initial Law Enforcement Contact through Sentencing: The Need for Sensitivity, Equalitarianism and Vigilance in the Criminal Justice System


Burnett, Arthur L., American Criminal Law Review


I. INTRODUCTION

This article takes a close look at the actual operation of the entire criminal justice system with reference to issues of racism, national origin and gender bias, from the initial police or law enforcement contact with the individual through the final process of sentencing the guilty offender.

What is the remedy when, in the exercise of police discretion, a police officer takes an African-American or Hispanic youth into custody and tells a white youth in an identical situation to "get lost" and to be careful not to get caught again? If a police officer seizes for forfeiture a motor vehicle driven by an African-American, Hispanic or Asian-American youth upon smelling the aroma of marijuana, with some ashes still in the ashtray, but tells the white youngster "to clean himself up" and "go home," is there a problem with the fairness of our criminal justice system? If a prosecution is thus brought against the minority youth and a factual record establishes such invidious discrimination, would a court be justified in dismissing the criminal prosecution or rejecting the forfeiture?

Is there evidence of racial or national origin discrimination when police officers set up "observation posts" in black neighborhoods or in Hispanic neighborhoods, but not in predominantly white neighborhoods? Similarly, consider this scenario: police officers observe through binoculars a hand-to-hand transaction or exchange on a corner between a black male and a black female, and conclude, based on asserted police experience, that they have just seen a narcotics transaction. But, what they saw may well have been a mere exchange of a dollar bill for four quarters to use in a nearby parking meter. Have the officers committed discrimination on the basis of race or national origin? Would the police officers have made the same assumption in a suburban shopping area regarding an exchange between two white individuals? To what extent should the character of the neighborhood influence the specific and articulable suspicion required by Terry v. Ohio,(1) with reference to meeting the standards for a stop and frisk, or probable cause required by the Fourth Amendment for an arrest?(2) To what extent are police experience and special expertise in observing narcotics transactions or other types of alleged criminal activity relevant factors in determining articulable suspicion or probable cause? Is this simply a pretext to justify police conduct and to sustain a prosecution at a motion to suppress hearing? To what extent should a judge or a magistrate, in issuing a search warrant based on a police affidavit, be influenced by generalizations about the neighborhood as a "high crime area," a "high unemployment area," or a "public housing area," and thus run the risk of applying a lower standard of probable cause than would be applied to an application for a search warrant for a single family residence in an affluent and predominantly white neighborhood?

Law enforcement officials may use other law enforcement procedures in a manner which reflects either conscious or unconscious racial and national origin bias. To what extent do economic conditions of a neighborhood offset claims of racism or national origin discrimination as an objective, realistic and justifiable law enforcement consideration?(3) To what extent are "drug courier profiles" used to justify the police officers' stop, detention, seizure or arrest decisions on subtle factors, which may camouflage a bias based on racial and national origin factors, a bias which may have been their primary basis for acting?(4)

Finally, we must stop, pause, and give serious consideration to the reverse of these situations. To what extent do minority defendants attempt to raise bias and discrimination issues as a bar to justifiable criminal prosecution and conviction? Sensitive and responsible criminal prosecutors, defense lawyers and judges must engage in critical analyses of the facts and evaluations of witness credibility when defendants endeavor to raise issues of racism, national origin discrimination, and gender bias, which may be totally unfounded and merely presented in a criminal prosecution as a means of trying to avoid criminal responsibility. …

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