Academic journal article Journal of Criminal Law and Criminology

Statistical Aspects of Cases concerning Racial Discrimination in Drug Sentencing: Stephens V. State and U.S. V. Armstrong

Academic journal article Journal of Criminal Law and Criminology

Statistical Aspects of Cases concerning Racial Discrimination in Drug Sentencing: Stephens V. State and U.S. V. Armstrong

Article excerpt

I. Introduction

Statistical evidence has been accepted in a wide variety of legal cases, including trademark confusion,(1) product liability,(2) and jury and employment discrimination.(3) Recently, statistics introduced on behalf of defendants who have challenged the fairness of sentencing practices have been poorly received by courts, as compared to their acceptability in equal pay and related fair employment cases. In this article we argue that the usefulness of aggregating the results of many prosecutorial decisions into a statistical analysis may not be adequately appreciated by the legal system. This lack of appreciation may be partially due to the fact that rarely is any data set perfect; one can almost always assert that information about some potentially relevant variable is lacking or that the sample is not sufficiently large. In the context of two recent cases involving claims of racial disparities in drug offense sentencing(4) we illustrate how a fuller use of statistical techniques applied to the data might have strengthened the claims of the defendants.(5)

II. Overview of the Use of Statistics in Discrimination Cases

Ever since the United States Supreme Court adopted statistical testing in the Castenada v. Partida(6) jury discrimination case, statistical evidence has been used in many types of cases concerning discrimination regarding race, age, or sex.(7) When a plaintiff in a civil case claims disparate treatment, or a defendant in a criminal case introduces statistical evidence as part of their prima facie case, the purpose is to show that otherwise comparable individuals of the protected class are being treated less favorably than those from the majority group.

In Texas Dep't. of Community Affairs v. Burdine,(8) the Supreme Court outlined the order of proof needed to show disparate treatment in an employment discrimination case.(9) In Batson v. Kentucky,(10) the Court adapted this standard to criminal cases in which the defendant claims that the prosecution abused its discretion in making peremptory challenges at trial by eliminating a disproportionate number of minority venirepersons.(11) Once a defendant raises a Batson claim, presumably based on the fact that most if not all minority venirepersons were eliminated, the prosecution must advance a neutral explanation for their removal. Then the defendant is given the opportunity to demonstrate that the state's reasons are insufficient or pretextual. The trial court then must determine whether the defendant has established purposeful discrimination. This procedure is sensible, as only the prosecution possesses the information that it uses to decide which venirepersons to challenge.

In the typical jury discrimination case, the plaintiff uses data for a number of venires to compare the number of minority jurors to its expected number, derived from the minority fraction of persons eligible for jury service. A plaintiff in a hiring discrimination case would do much the same. This technique has been called "standard deviation" analysis, as the difference between the actual number of minorities and the numbers expected if selections were randomly chosen from the eligible pool is measured in units of the sampling variability, called standard deviation.(12)

In cases concerning the discriminatory use of peremptory challenges, Batson allowed the defendant to establish a prima facie case based solely on evidence concerning the prosecution's exercise of its peremptory challenges in his own case.(13) The Court noted that the peremptory challenge process enables those who have a mind to discriminate to do So.(14) The decision in Batson overruled Swain v. Alabama,(15) which required the defendant to demonstrate a pattern of discriminatory peremptory strikes in a reasonable number of similar cases. In Batson the Court noted that this was an extremely difficult hurdle for defendants, and essentially impossible in jurisdictions where the requisite information -- the race of the jurors -- was not preserved. …

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