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CONSTITUTIONAL
RIGHTS FOUNDATION
Bill of Right in Action Winter
1992 (9:1) The Judicial System In the last issue we discussed our political system, and this time we turn to a historical and contemporary focus on issues of the justice system. Further issues will focus on the executive and legislative branches of government. We gratefully acknowledge the support of the following organizations which have made Bill of Rights possible: the Hearst Foundation, the Ahmanson Foundation, Times Mirror, and the U.S. Department of Justice's Office of Juvenile Justice and Delinquency Prevention. World History: The Inquisition: Looking into the Human Soul U.S. History: "We Came to Free the Slaves": John Brown on Trial U.S. Government: Does the Criminal Justice System Discriminate Against African-Americans? The Inquisition: Looking into the Human Soul Many people complain that courts turn too many criminals loose because of technicalities. For example, the police search a house without a warrant, or the police get a confession without explaining the right to silence. And as a result, someone who might be a burglar or a murderer goes free. This may seem unjust, but each of those "technicalities" has been developed as a protection for everyone. One of the best ways to see this is to look at a world where these protections didn't exist. In the Middle Ages in Europe, investigators brutally hunted down people they thought might be witches and heretics -- those who oppose an established religion. People were secretly accused and had no protections at all. Many thousands of people were imprisoned or even burned alive. These events left a scar on Western European history that affects us even today. And they may provide lessons for our own time. The Church in Medieval Europe By the year 1200, Roman Catholicism had been the dominant religion of Europe for over 800 years. In Greece and the Middle East, people had split away from the Catholic Church to form the Orthodox Church, and Muslims controlled all of North Africa. But in most of Europe, the pope in the Vatican remained the undisputed religious leader. Heresies did not seem a large problem. The church tolerated some small groups with opposing views. Others were suppressed by local bishops or even angry mobs. In the 1100s, however, a serious challenge to the Roman Church developed in southern France. No one feared a heresy when only a handful practiced it, but now thousands were following a belief called Catharism or Albigensianism. Cathars believed in a strong division between good and evil. They thought a good God created our souls, but a bad God imprisoned our souls inside bodies. They believed physical bodies were always evil. The leading Cathars, who called themselves "perfects," tried to live without property, marriage, or sex. Some of them became so extreme that they gave up food and starved to death. The Cathars believed they were the true Christians and the Catholic Church was a false church, founded by the devil. Many dukes and local leaders in southern France protected Cathar believers. The new religion began to attract a large following. This threatened not only the pope but the French government in Paris. In 1209, Pope Innocent III declared a crusade against the Cathars. This led to a long war of northern French nobles against southern French nobles. The north won, but many thousands of people remained secret Cathars. Church leaders felt something stronger had to be done. The Coming of the Inquisition In 1232, Pope Gregory IX decided to end this heresy once and for all. He set up a system of special religious courts called the Inquisition. Gregory authorized the leaders of the Dominican religious order to send out friars to find and question heretics. Bernard Gui, an inquisitor in France described the purpose of the Inquisition this way:
Those who refused to recant, which means give up their heresy, were burned alive. The Inquisition completely wiped out the Cathars over the next 200 years. And the religious courts became a permanent system of religious control. The Inquisition dominated the thinking of much of Europe until the Protestant Reformation in the 1500s. How Did the Inquisition Work? When the Inquisition came to a suspected area, the local bishop assembled the people to hear the inquisitor preach against heresy. He would announce a grace period of up to a month for heretics to confess their guilt, recant, and inform on others. During this period, the Inquisition would collect accusations. If two witnesses under oath accused someone of heresy, the accused person would be summoned to appear. Opinions, prejudices, rumors, and gossip were all accepted as evidence. The accused was never told the names of the accusers, nor even the exact charges. Inquisitors examined the accused in secret. Anyone who refused to confess immediately was assumed to be guilty. Inquisitors were trained only in religion, and they would try to trap the accused with religious questions. For example, an inquisitor might ask, "Do you believe what the holy church believes?" "I am a faithful Christian," the fearful suspect might reply. "So!" the inquisitor might shout. "We already know you believe in heresies! You're saying your beliefs are the true Christianity and the church is false!" No lawyers were allowed, because it was considered heresy to defend a heretic. The only possible escape was to recant as quickly as possible and name the names of other heretics. Government authorities worked closely with the Inquisition. They would deliver the accused to the inquisitors, and, when asked, they would torture those who refused to recant. During torture, the religious inquisitors would stand by as witnesses to record confessions or take down the names of other heretics. The government also carried out the final sentence of imprisonment or death. Those who recanted immediately might receive a fairly light sentence -- saying prayers, fasting, being whipped in public, or making a pilgrimage. Some who recanted were forced to wear a yellow cross of felt sewn on all their clothing. The cross marked them as a former heretic, and many people would stay away from them in fear. Many who refused to recant right away were sentenced to prison for life. If they refused to recant at all, the Inquisition turned them over to government authorities to be burned alive. Some inquisitors were so thorough that they went after the dead. If a dead person was accused of heresy, his or her bones could be dug up and burned. For most accused heretics, there was no appeal. A few rich or powerful people might beg the pope to change a sentence, but for most of the condemned, the sentence was final. The families of those sent to prison or to the stake lost their property. The Inquisition Spreads Peter Autier, the last active Cathar minister in southern France, was burned at the stake in 1311. He defied the Inquisition to the end, crying out to the crowd, "If it were lawful for me to preach, you would all accept my faith!" After completely wiping out the Cathar heresy, the Inquisition spread to other parts of Europe. Inquisitors hunted down people accused of witchcraft, scholars who read banned books, and Jews who had converted to Catholicism but still secretly practiced Judaism. In Italy, the Inquisition often went after nationalist movements in regions like Lombardy in the north, Venice, or Sicily. It was used to suppress these political movements as well to attack heretics. In northern France and Germany, the Inquisition persecuted small mystical sects. In Germany, however, local princes often refused to cooperate. They insisted on maintaining their own power and didn't like outsiders from Rome holding court on their territory. In Spain, the Inquisition made almost no headway for two centuries. Spain had been conquered by Muslims and largely reconquered by Christians in the 1200s. As a result, Spain was religiously heterogeneous, and a tolerance had developed so Muslims, Christians, and Jews could live together in relative peace. Toward the end of the 1400s, however, Spanish tolerance changed abruptly. Spain saw the rise of a form of the Inquisition more ruthless and disruptive than anywhere else in Europe. The Spanish Inquisition Thousands of Jews and Muslims had settled in Spain. To take part in business and government, many of them had been forced to convert to Christianity. In fact, the converts, or conversos in Spanish, made up a large part of the wealthy and influential class of Spain. This produced jealousy and anti-Semitic prejudice in many Spaniards. In the 1400s, rumors spread that most conversos continued to practice their Jewish beliefs. Anti-converso riots erupted in Toledo and other cities. By the late 1400s, King Ferdinand of Aragon and Queen Isabella of Castille had united all of Spain into a single kingdom. But the rioting was upsetting their unified kingdom. The king and queen decided to act. Instead of attacking the rioters who were causing religious bigotry, however, they decided to attack the conversos. Pope Sixtus IV gave the Spanish rulers permission to set up their own Inquisition. In Spain, the search for heretics was to be controlled by the crown, not the pope. In 1483, Isabella and Ferdinand established a council to direct the activities of the Inquisition throughout Spain. They appointed Tomas de Torquemada inquisitor-general. He was a Dominican friar who had preached for years against the conversos. The Inquisition in Spain was ferocious in dealing with heretics, especially in the early years under Torquemada. In 1485, after conversos assassinated an inquisitor, the full fury of the Spanish Inquisition was unleashed. Within 10 years, over 2,000 people had been burned at the stake, with another 15,000 suffering other penalties. An Auto-da-fe The final public ceremony of the Spanish Inquisition was called an auto-da-fe, which means an act of faith. Crowds would gather in a public square, often facing a cathedral. In the center of the square, there were a dozen wooden stakes where the heretics were to be burned. A bishop came out and shouted out the names of the condemned. Then the heretics were led out, wearing black robes decorated with red demons and flames. Officials of the government tied them to the stake. "Do you give up your heresy against the holy church?" a priest would challenge. Anyone who repented would be strangled to death before the fires were lit. Most, however, stood silent or defiant. The fires were lit, and the square echoed with the screams of the heretics and cheers from the crowd. The Spanish Inquisition Comes to an End In 1492, the same year that Columbus discovered the New World for Spain, Isabella and Ferdinand expelled from their country all Jews who refused to convert to Catholicism. These attacks and expulsions against Spanish Jews paralyzed all of Spanish commerce. A hundred years later, the same resentment and fury turned against the Muslim population. Spain never recovered as a commercial power. In northern Europe, the pope tried to use the Inquisition against the growing Protestant movement of the 1500s, but the Protestants were much too strong. They were allied to the leaders of powerful commercial nations and city-states. The new Protestant religions were protected by British, Swedish, German, Dutch, and Swiss governments. A single Europe had come apart. The Inquisition had begun in a Europe united by religion as an attack on a few sects of heretics. Three hundred years later, the Inquisition could no longer hold Europe together. Religious and national wars were to last centuries and take hundreds of thousands of lives. Today the Roman Catholic Church still wants its members to follow church doctrine, but it punishes dissenters with nothing more severe than official excommunication -- and even that does not occur very often. The church has had to reconsider its past actions. In recent times, Pope John Paul II had a church commission review what was perhaps its best known Inquisition case. The commission decided that the church was wrong when it punished Galileo in 1633 for declaring that the Earth was not the center of the universe. For Discussion and Writing
For Further Information The Medieval Inquisition Short articles from Infoplease.com. Inquisition Short articles and links to magazine articles. From Encyclopedia.com. The Medieval Inquisition A history, interactive trial, explanation of origins of words related to the Inquisition, a short history, and links. Internet Medieval Sourcebook This extensive and well-organized online Sourcebook includes a wide range of texts covering governmental, legal, religious, economic, gender, Islamic, Byzantine, Jewish, and social history during the Middle Ages. In particular, see:
Inquisition Record of Jacques Fournier, Bishop of Pamiers, 1318-1325 Records of interrogations and confessions. From the Labyrinth, Resources for Medieval Studies, Georgetown University. The Spanish Inquisition: Fact Versus Fiction By Mark R. O'Connell, professor emeritus of history at the University of Notre Dame and a priest of the Archdiocese of St. Paul. Inquisition From the Catholic Encyclopedia. Spanish Inquisition A collection of articles from the Catholic Pages Directory. The Harvey L. McDevitt Collection on the Spanish Inquisition Primary documents from a collection at the University of Notre Dame. Books on the Spanish Inquisition A bibliography. 1492: The Spanish Inquisition A lesson for eighth and ninth graders by Deborah Marinsky, Worlds of the Renaissance. A C T I V I T Y The Bill of Rights and the Inquisition In this activity, students see how the U.S. Bill of Rights would have applied to the procedures of the Inquisition, and they identify which articles of the Bill of Rights would have been violated and why. Of course, it is not historically valid to apply contemporary standards to a historical situation. The Bill of Rights developed in a different era from the Inquisition. But this imaginative exercise can, however, show how the Bill of Rights helps protect us. 1. Obtain a copy of the Bill of Rights and break into groups. Read the following hypothetical case of the alleged heretic Charles Hester. The Case of Charles Hester
2. Pretend that the Catholic Church adopted the Bill of Rights the year before Charles Hester was arrested. Your group has been appointed Charles Hester's lawyer. Divide up the 10 amendments in the Bill of Rights so that each person in the group has two or three. Compare your amendments to Hester's story to see if any rights listed in those amendments were violated. Discuss this with the group. 3. As a group, write a brief appeal of Hester's conviction for heresy, stating which rights were violated and why you think so. Each person in the group should concentrate on writing a section of the appeal that deals with his or her assigned amendments. (If it seems your amendments don't apply to the story, co-operate with one of the other students in your group.) 4. Read your appeal to the full class. The class can then vote on which appeal was the most effective and discuss why. "We Came to Free the Slaves": John Brown on Trial Throughout American history people have protested and broken the law. Once in court, they often have tried to use their trials to advance their causes. In the 1960s and 1970s, many people sought to use the courtroom to denounce racial segregation and the Vietnam War. In the 1980s and 1990s, many others tried to turn their trials into an attack on abortion. Before the Civil War, John Brown, a tireless crusader against slavery, fought his last battle against slavery in an American courtroom. John Brown's Secret Plan No one had a deeper moral hatred of slavery than John Brown. He had grown up on the Ohio frontier, the son of a stern man who believed slavery was a sin against God. As John grew up, he became an active abolitionist -- someone who fights to abolish slavery -- by helping runaway slaves escape. He married and in 1849 moved his family to North Elba, New York, to join a farming community of ex-slaves and free blacks. A few years later, his anti-slavery views took him away from his wife and younger children to continue his personal crusade in Kansas. The Kansas territory had become known as "Bleeding Kansas" because of many pitched battles over slavery. Small homesteaders wanted Kansas to enter the Union as a free state. Bands of pro-slavery gunmen called "border ruffians" crossed over from Missouri to attack them. Brown's older sons had moved to Kansas earlier, and he joined them to help defend the free-soil homesteaders. Border ruffians attacked Lawrence, Kansas, in May 1856, and burned down much of the town. Brown led a counter-raid and ordered five pro-slavery settlers hacked to death with sabers. This brutal response was one of the most controversial events in his life. Brown fought several other battles in Kansas, defending free-soil towns, and he led guerilla raids into Missouri. During this period, Brown began to develop a much bigger plan, designed to free all slaves. He traveled to Boston in 1857 and again in 1858 to ask wealthy abolitionists for arms and money. He said he had a vision that God would make him "the deliverer of the slaves the same as Moses had delivered the children of Israel." Many abolitionists were scared off by his reputation for violence. But finally he won over a small group of financial backers, known as "The Secret Six." He convinced them that only by force could "this slave-cursed Republic be restored to the principles of the Declaration of Independence." In May 1858, Brown held a secret anti-slavery convention in Canada. About 50 black and white supporters adopted Brown's anti-slavery constitution. In December, Brown moved beyond talk and plans. He led a daring raid from Kansas across the border into Missouri, where he killed one slave owner and freed 11 slaves. In the spring of 1859, Brown traveled east to complete his plan for a large slave revolt. He gathered recruits and ordered guns, spears, and other supplies. At a meeting of the New England Anti-Slavery Society, he denounced the endless discussions of many abolitionists. "Talk! Talk! Talk!" he cried. "That will never free the slaves. What is needed is action -- action!" As the starting point for the rebellion, John Brown chose Harpers Ferry, a small town at the junction of the Shenandoah and Potomac rivers. It was far away from the large plantations near the Atlantic where most of the slaves were. But it had an arsenal where Brown's raiders could seize guns. On July 3, 1859, Brown and a few supporters rented an old farmhouse near Harper's Ferry. For five months they studied maps and finalized plans. Boxes of arms came by wagon. His remaining recruits trickled in. The raiders were all young, idealistic, and bitter opponents of slavery. Five of them were free black men who had given up their safety in the North to fight for their slave brothers and sisters. Brown believed that after he seized the arsenal, masses of slaves would rebel against their masters and join the revolt. He planned to distribute guns and spears to his new army, strike southward, and set off a chain reaction of slave uprisings throughout the South. Unfortunately, he did little to spread the word among the slaves nearby. All his attention was focused on seizing the arsenal. He made few plans for what would happen the day after. The Raid On Sunday night, October 16, 1859, Brown and 18 others, swept down on the armory and took several prisoners. In the darkness and confusion, one raider shot and killed the baggage master at the railroad station. Sadly, this free black man was the first victim of a raid to free the slaves. Brown sent some of the raiders into the countryside to try to spread the rebellion. His men returned with two slave owners and about a dozen slaves. Since Brown had given no advance warning, the slaves were as surprised and confused as their masters. By the next morning, word had spread of a massive slave uprising. Armed citizens and militia units struck back. Townspeople drove the raiders into a small fire engine house, where they traded rifle fire for most of the day. Brown appeared confused and uncertain about what to do next. This delay gave federal authorities in nearby Washington time to send a unit of U.S. Marines under the command of Colonel Robert E. Lee. When Brown's men peered out through their gun holes in the early light of Tuesday, the second day of the revolt, they saw Lee's Marines. Beyond the Marines, more than 2,000 spectators waited to see the final assault. Lee demanded that Brown surrender, and Brown refused. The Marines then rushed the engine house. Brown and most of his men resisted to the last. One of the Marine officers wounded Brown with his saber, and then used the hilt to beat him unconscious. Seventeen men died in the raid on Harper's Ferry. In addition to the African-American baggage master, the raiders killed three white townspeople and one Marine. Ten of the raiders, including two of Brown's sons were killed, plus two of the slaves they liberated. Brown and four others were taken alive. A few raiders waiting at the farm nearby escaped. A few hours after his capture, Brown regained consciousness. He was surrounded by an excited crowd, including Virginia's governor, members of Congress, and news reporters. When they asked him why he did it, Brown said simply, "We came to free the slaves, and only that." John Brown on Trial Troops transported Brown and his surviving raiders to the county courthouse in Charleston. The governor wanted a speedy trial to prevent either a lynching or a rescue attempt. One week after the raid, Brown and four of his raiders, two black and two white, were brought to court under heavy guard. The state appointed two Virginia defense attorneys. The next day, the court read the grand jury indictment. Brown and his followers were charged with treason against the government of Virginia, conspiracy to induce slaves "to rebel and make insurrection against their masters and owners," and premeditated murder. The five pleaded not guilty, and each was given a separate trial. In the afternoon John Brown, still suffering from his wounds, was carried into court on a cot to open his trial. Prospective jurors were examined and anyone who had been at Harper's Ferry during the raid was eliminated. The final jury was made up of 12 men, some of whom were slave owners. As the trial opened, one of the court-appointed defense attorneys surprised Brown. He read a telegram from an Ohio resident who claimed that several of Brown's close relatives suffered from insanity. Brown protested. He wanted the trial to be a forum to attack the institution of slavery. He insisted that the insanity defense was "a miserable artifice and pretext" to avoid discussing slavery. The judge ordered the trial to continue. The prosecution called as witnesses many Harper's Ferry townspeople and those Brown had held hostage. Under cross-examination, the hostages admitted that Brown had treated them well and had ordered his men not to shoot unless fired upon. The Secret Six in Boston hired a young Massachusetts lawyer named George H. Hoyt to help defend Brown. He was also told to scout the possibility of a rescue, but when the lawyer arrived, Brown refused to be rescued. He knew he would not have his forum if he escaped. He seemed to feel that he had to become a martyr in order to stir up more anti-slavery feeling. The prosecution introduced into evidence Brown's anti-slavery constitution, letters from his backers, and other materials found at the farmhouse. After a few defense witnesses were called, Brown denounced his Virginia attorneys. He asked for a delay because more legal help was being sent from the North. The two appointed lawyers withdrew, but Judge Parker ruled against a delay. The following morning, Samuel Chilton of Washington and Henry Griswold of Cleveland, Ohio, joined Brown's defense. They asked for a delay to prepare, but the judge refused again. The remaining defense witnesses were examined, but Brown himself did not testify. Griswold and Chilton made the closing arguments for the defense. They said that the state had failed to prove the charges. Since the state had kept the trial focused on the legal issues of treason and murder, the defense had to respond to simple questions of evidence. Brown showed little interest in this defense. He wanted to attack slavery, but had not yet found a way to do so in court. The jury deliberated for less than an hour and found John Brown guilty of all the charges. Two days later, Judge Parker sentenced Brown to be hanged. At the sentencing, Brown finally found his forum. He stood in court and made a passionate attack on slavery. Brown brushed aside questions of treason and other legal issues. He said he was simply trying to free slaves, as he had done the previous year in Missouri. He insisted that fighting against slavery was the right thing to do. His statement was published in papers all over the country. A gaunt but defiant John Brown walked to the gallows at age 59. On this last walk, he had one more chance to argue his views. He offered a terrible prophecy: "I John Brown am now quite certain that the crimes of this guilty land will never be purged away, but with Blood." For Discussion and Writing
For Further Information John Brown and the Valley of the Shadow The story and links to newspaper articles of the time, eyewitness accounts, and pictures. John Brown's Holy War From PBS's The American Experience. John Brown A biography and primary documents. From Spartacus. Harpers Ferry National Historical Park has a Photo Archive and Guide to Harpers Ferry History From the National Park Service John Brown Raid Photos/Illustrations From the West Virginia Division of History and Culture. John Brown's Raid From Shotgun's Home of the American Civil War. A Plea for Captain John Brown Written by Henry David Thoreau in 1859. The Kennedy Farmhouse This was the staging area for the attack on Harpers Ferry. From the John Brown Historical Foundation. John Brown: Citizen of Kent An illustrated story of Brown's life. John Brown's Final Address to the Court A C T I V I T Y Is It Ever Right to Break the Law? Divide the class into small groups and have them discuss whether it is acceptable to break the law in the following situations. Each group should report back and give reasons for its decisions.
Debriefing questions:
Does
the Criminal Justice System A white truck driver named Reginald Denny was driving his big-rig through South Central Los Angeles during the April 1992 Los Angeles riots. Television viewers all over Los Angeles watched in horror as a helicopter camera zoomed in on Denny being pulled from his truck and beaten by several young black men. The videotape of this attack became almost as famous as the one that helped set off the rioting -- the amateur video that showed policemen surrounding and beating Rodney King. Based on videotape of the Denny beating, the police arrested five young African-American men. They were charged with many crimes, including attempted murder. None could post bail, which exceeded $500,000 in one case. Eventually, three of the five were ordered to stand trial for attacking Denny and several other victims. The Denny case became the focus for a longstanding feeling in the African-American community that blacks cannot get justice in our system. Many people in the community came forward to support the defendants. The camera seemed to show that somebody was guilty, but many people insisted that the three black men would never get a fair trial from a criminal justice system dominated by white prosecutors, jurors, and judges. Is this perception valid? [Editor's note: In a controversial verdict, the defendants were acquitted on the most serious charges in the case.] The Color of Justice Over the years, critics of the criminal justice system have cited many cases and studies. For example, statistical studies suggest that more than half of all black males in large cities can expect to be arrested at least once during their lifetime, while only 14 percent of white males are ever arrested. African-Americans make up 12 percent of the U.S. population, but they are 45 percent of all prison inmates and 40 percent of those sentenced to death. In 1992, there were more black men in prison than in college. Even more startling, a quarter of all African-American males aged 20-29 are locked up, on probation, or on parole right now. The question remains whether these statistics are the result of a racist criminal justice system or have other causes. Social scientists and politicians have argued about this question for decades. In a controversial 1975 article titled, "White Racism, Black Crime, and American Justice," criminologist Robert Staples argued that there was discrimination. He said the legal system was made by white men to protect white interests and keep blacks down. Staples charged that the system was characterized by second-rate legal help for black defendants, biased jurors, and judges who discriminate in sentencing. A dozen years later, sociologist William Wilbanks rejected the discrimination argument. In his book, The Myth of a Racist Criminal Justice System, Wilbanks reviewed scores of studies that seemed to show statistical inequalities between whites and blacks in arrest rates, imprisonment, and other areas of criminal justice. He felt the inequalities were due to factors other than racial discrimination, such as poverty and the defendant's prior record. Other sociologists, too, have suggested that the apparent inequalities have more to do with poverty than race. Street crimes such as robbery and assault, prominent in the statistics, are often committed by people from poor backgrounds. In 1992, almost 45 percent of all African-American children grow up below the official poverty line, compared to only 16 percent of all white youngsters. These figures grew worse in the 1980s, as job opportunities gradually disappeared from most urban black communities. During the 1990s, however, poverty rates dropped and so did the crime rate. The connection between poverty and crime has long been noted. During the 1930s, a much larger part of the white population was poor, and whites committed a greater percentage of street crime. Whites then accounted for nearly 80 percent of those in prison -- compared to 40 percent today. The question of poverty alone may well account for many of the apparent inequalities in the system. A Rand Institute study in 1983, however, unearthed some disturbing data. Rand compared the treatment of whites and blacks at key decision points in the criminal justice system, such as sentencing. The researchers found that black defendants seemed to be treated more harshly. However, the researchers did not identify a cause for these inequalities. Later studies have provided more insight into this troubling data. Plea Bargaining The San Jose Mercury News conducted a massive study of 700,000 California legal cases over a 10-year period. The paper reported in December 1991 that 33 percent of the white adults who were arrested, but had no prior record, were able to get felony charges against them reduced. Only 25 percent of the African-Americans and Latinos with no priors were as successful in plea bargaining. The Mercury News study did not blame intentional racism for these inequalities. It did, however, suggest that subtle cultural fears and insensitivity contributed to the problem. The study noted that over 80 percent of all California prosecutors and judges are white, while more than 60 percent of those arrested are non-white. Jury Verdicts In 1985, Cornell law professor Sheri Lynn Johnson reviewed a dozen mock jury studies. She concluded that the "race of the defendant significantly and directly affects the determination of guilt." In these studies, identical trials were simulated, sometimes with white defendants and sometimes with African-Americans. Professor Johnson discovered that white jurors were more likely to find a black defendant guilty than a white defendant, even though the mock trials were based on the same crime and the same evidence. And Professor Johnson found that black jurors behaved with the reverse bias. They found white defendants guilty more often than black defendants. Furthermore, the race of the victim in the case affected both groups. If the victim was black, white jurors tended to find a white defendant less blameworthy. In the same way, if the victim was white, black jurors found black defendants less blameworthy. According to these mock jury experiments, both white and black jurors seem to discriminate. Professor Johnson, however, did not think the juror bias was intentional. "Because the process of attributing guilt on the basis of race appears to be subconscious," Johnson says, "jurors are unlikely either to be aware of or to be able to control that process." The mock trials did have one encouraging result. When white and black mock jurors met together, as many real juries do, the effect of race tended to disappear. This result seems to indicate that the best way to eliminate racial bias in verdicts is to select racially mixed juries. The U.S. Supreme Court has moved in this direction by prohibiting both prosecutors and defense lawyers from eliminating prospective jurors solely because of race. [See Batson v. Kentucky (1986) and Georgia v. McCollum (1992)] Sentencing The 1983 Rand Institute study found that convicted African-Americans were more likely than whites to go to prison. And their sentences were longer. "This disparity," the study concluded, "suggests that probation officers, judges, and parole boards are exercising discretion in sentencing and/or release decisions in ways that result in de facto discrimination against blacks." De facto means the discrimination exists in fact, but without legal authority -- and it may not be intentional. Unintended discrimination can occur at many points in the legal process. Probation officers often prepare reports to help judges make sentencing decisions. Reports include information on the criminal's prior record and background. Since many African-American criminals grow up poor, their records often show problems like unemployment and violence in the home. Judges could often be tempted to assume black criminals are more dangerous than white criminals, who more often come from middle-class backgrounds. Some observers feel that such assumptions can lead judges to sentence black offenders more harshly than white offenders. Death Penalty The state of Georgia was the subject of a careful study of 2,000 murder cases prosecuted during the 1970s. The study showed that defendants convicted of killing whites were more than four times more likely to receive the death penalty than those convicted of murdering blacks. The study also revealed that black defendants who murdered whites had by far the greatest chance of being sentenced to death. A Georgia black man who had been sentenced to death for killing a white police officer used this study in his appeal to the U.S. Supreme Court. He claimed the study proved that Georgia's jurors and judges discriminated against African-American defendants. In a 5-4 decision, the Supreme Court accepted the results of the study, but ruled that it did not prove the discrimination was intentional. Writing for the majority, Justice Lewis F. Powell concluded that the study failed to "demonstrate a constitutionally significant risk of racial bias affecting the Georgia capital sentencing process." [McCleskey v. Kemp (1987)] On the whole, most studies confirm that some racial discrimination exists in the American criminal justice system, but that it is not intentional. It is rooted in subtle assumptions and fears that are deeply ingrained in the wider society. Critics of the system, however, insist that inequalities, regardless of their basis, should not be swept under the rug. They maintain that any discrimination is intolerable, and we must all make a serious attempt to do away with it. For Discussion and Writing
For Further Information The Sourcebook of Criminal Justice Statistics Online Data about all aspects of criminal justice in the United States presented in over 600 tables from more than 100 sources. From the Bureau of Justice Statistics. Crime Statistics Link Guide Links to crime statistics for colleges, universities, counties, cities, states, aggregate data for the U.S. and countries worldwide, and historical crime data. The Color of Justice Links from Criminal Justice in America, Constitutional Rights Foundation's textbook on the justice system. A C T I V I T Y Toward a Colorblind Justice System In this activity, students evaluate evidence of racial inequalities in the criminal justice system. After discussing in groups the three problems listed below, each group should then report back its conclusions to problems 2 and 3.
Officers: Alan Friedman, President; Harry Usher, Immediate Past President; Publications Committee: Jerome C. Byrne, Chairperson; Peggy Saferstein, Marvin Sears, Eugene Shutler, Lloyd M. Smith, Marjorie Steinberg, Susan Troy, Daniel H Willick; Staff: Todd Clark, Executive Director; Marshall L. Croddy, Director of Program and Materials Development; Lisa Friedman, Program Manager; Carlton Martz, Writer; John Shannon, Editor; Bill Hayes, Cristy Lytal, Web Editor; Andrew Costly, Production Manager; Lloyd M. Smith, CRF Board Reviewer. © 1992, Constitutional Rights Foundation,
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