Race, rights, and remedies in criminal adjudication

Michigan Law Review

Volumn 96, Issue 7, 1998, Pages 2001-2029

  Karlan, Pamela S ^a  

^a STANFORD LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347628714     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: 10.2307/1290058     Document Type: Article

References (151)

1. NOEL T. DOWLING, CASES ON CONSTITUTIONAL LAW 659-748 (5th ed. 1954).
2. 287 U.S. 45 (1932) ("Scottsboro Boys" case).
3. 261 U.S. 86 (1923) (aftermath of the Elaine, Arkansas, race riots).
4. 219 U.S. 219 (1911) (peonage case).
5. See DOWLING, supra note 1, at 1115-89 and 1189-1241. The criminal cases were Screws v. United States, 325 U.S. 91 (1945) (police brutality against a black citizen); United States v. Classic, 313 U.S. 299 (1941) (vote fraud); the Civil Rights Cases, 109 U.S. 3 (1883) (violation of public accommodation statutes); Ex parte Virginia, 100 U.S. 339 (1880) (jury discrimination); and Strauder v. West Virginia, 100 U.S. 303 (1880) (jury discrimination).
6. NOEL T. DOWLING & GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW 761-832 (7th ed. 1965).
7. See id. at 303-31.
8. GERALD GUNTHER, CASES AND MATERIALS ON CONSTITUTIONAL LAW at xx (9th ed. 1975).
9. See, e.g., Shaw v. Hunt, 517 U.S. 899 (1996) (redistricting); Bush v. Vera, 517 U.S. 952 (1996) (redistricting); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (federal contracting).
10. Both Title VII of the Civil Rights Act of 1964 as amended, 42 U.S.C. § 2000e-2(k)(1)(A) (1994), which forbids discrimination in government employment, and § 2 of the Voting Rights Act of 1965 as amended, 42 U.S.C. § 1973 (1994), which forbids discrimination in voting and redistricting, use disparate impact standards that relieve plaintiffs of the burden of proving a racially discriminatory purpose.
11. 476 U.S. 79 (1986).
12. 481 U.S. 279 (1987).
13. 517 U.S. 806 (1996).
14. 517 U.S. at 813.
15. 517 U.S. 456 (1996).
16. 517 U.S. at 465, 466.
17. 517 U.S. at 461 n.2.
18. 42 U.S.C. § 1983 (1994). For a general overview of § 1983 litigation, see PETER W. LOW & JOHN C. JEFFRIES, JR., CIVIL RIGHTS ACTIONS: SECTION 1983 AND RELATED STATUTES (2d ed. 1994).
19. Whren v. United States, 517 U.S. 806, 810 (1996).
20. See, e.g., Angela J. Davis, Race, Cops, and Traffic Stops, 51 U. MIAMI L. REV. 425 (1997);
21. David A. Harris, "Driving While Black" and All Other Traffic Offenses: The Supreme Court and Pretextual Traffic Stops, 87 J. CRIM. L. & CRIMINOLOGY 544, 546-47 (1997);
22. Sean Hecker, Race and Pretextual Traffic Stops: An Expanded Role for Civilian Review Boards, 28 COLUM. HUM. RTS. L. REV. 551, 551 (1997);
23. Tracey Maclin, Race and the Fourth Amendment, 51 VAND. L. REV. 333 (1998);
24. David A. Sklansky, Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment, 1997 SUP. CT. REV. 271.
25. For more detailed discussions of the Volusia County experience, see, for example, Harris, supra note 20, at 561-63; Hecker, supra note 20, at 559-60; and Jeff Brazil & Steve Berry, Color of Driver is Key to Stops in I-95 Videos, ORLANDO SENTINEL, Aug. 23, 1992, at A1.
26. For more detailed discussions of the Maryland State Police case, see, for example, Davis, supra note 20, at 431, 438-42; Harris, supra note 20, at 563-66; Hecker, supra note 20, at 561-63; Maclin, supra note 20, at 349-52; and Catherine M. Brennan, Court Calls for Closer Look at Police Records: Case Illustrates Legal Difficulties Wrought by Use of Race Stereotypes, BALTIMORE DAILY RECORD, Apr. 14, 1997, at 1A.
27. See Brazil & Berry, supra note 21, at A10.
28. See id.
29. See Harris, supra note 20, at 562.
30. See Brennan, supra note 22.
31. See Davis, supra note 20, at 429-30; Harris, supra note 20, at 568-69; Sklansky, supra note 20, at 278 n.38.
32. Whren, 517 U.S at 810 (quoting D.C. MUN. REGS. tit. 18, § 2213.4 (1995)). See also Sklansky, supra note 20, at 298-99 (pointing out that "the police, if they are patient, can eventually pull over anyone they are interested in questioning").
33. Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (emphasis added).
34. 429 U.S. at 271 n.21.
35. See 429 U.S. at 265.
36. Cf. Sklansky, supra note 20, at 324 (suggesting that "victims of police abuse typically belong to groups with minimal political clout"); William J. Stuntz, Implicit Bargains, Government Power, and the Fourth Amendment, 44 STAN. L. REV. 553 (1992) (suggesting that the potential for political control over police discretion plays a large part in public willingness to permit expansive statutes).
37. See infra text accompanying notes 106-34.
38. That is, minority motorists may find it quite easy to show that there were a substantial number of white drivers who fit the articulated criteria for being stopped.
39. For general discussions of sting operations and testers, see, for example, ROBERT G. SCHWEMM, HOUSING DISCRIMINATION: LAW AND LITIGATION § 32.2 (1997);
40. Michael H. Schill, Local Enforcement of Laws Prohibiting Discrimination in Housing: The New York City Human Rights Commission, 23 FORDHAM URB. L.J. 991, 997-98 (1996). For an example of a reverse sting involving traffic stops, see Harris, supra note 20, at 567-68.
41. For examples of such traffic laws, see Brennan, supra note 22; Harris, supra note 20 at 561-66, 568-69; Maclin, supra note 20, at 349-50.
42. United States v. Armstrong, 517 U.S. 456, 459 (1996).
43. See Harris, supra note 20, at 558 n.82 (collecting statutes with these sorts of requirements).
44. Whren, 517 U.S. at 813.
45. See, e.g., Oregon v. Elstad, 470 U.S. 298, 305 (1985) (discussing the fruit of the poisonous tree doctrine); Segura v. United States, 468 U.S. 796, 801-02 (1984) (same); Wong Sun v. United States, 371 U.S. 471, 487-88 (1963) (same).
46. See Maclin, supra note 20, at 338 n.22 (stating that the "Court has shown no sign that it interprets the Equal Protection Clause to embody an exclusionary rule remedy"); cf. Frisbie v. Collins, 342 U.S. 519 (1952) (upholding a criminal conviction obtained after the defendant was forcibly kidnapped and brought into the jurisdiction since the actual trial was conducted fairly).
47. See Whren, 517 U.S. at 810.
48. And the link to the charges on which Michael Whren himself was prosecuted is also intricate. Whren's arrest was the fruit of the pretextual stop of someone else. See Whren, 517 U.S. at 808-09. Rakas v. Illinois, 439 U.S. 128 (1978), and its progeny hold that Fourth Amendment rights cannot be asserted vicariously, that is, that evidence need not be suppressed unless the person against whom it is being used was the direct victim of the unreasonable search or seizure. See CHARLES H. WHITEBREAD & CHRISTOPHER SLOBOGIN, CRIMINAL PROCEDURE § 4.04 (3d ed. 1993). Thus, evidence illegally seized from person A can be used against person B. By analogy, it is questionable whether an unconstitutional stop of driver A bars prosecution of passenger B. Suppose, for example, that driver A was stopped solely for an unconstitutional reason - say, because he had supported the sheriffs opponent in a recent election. Suppose further that, as a result of that stop, A provided information to the police (or a search of his car revealed such information) without which they could not have arrested or prosecuted person B, not a passenger in the car. Surely B would be unable to suppress that evidence. On the other hand, suppose that one of the reasons the police stopped A's car was because of B's race. Cf. Papachristou v. Jacksonville, 405 U.S. 156, 158-59 (1972) (suggesting the police stopped a car because of the mixed race of its occupants). Then B would be the direct victim of an equal protection violation, since the police would have acted in part on the basis of his race. In Whren, the fact that the police officers' "suspicions were aroused" when they passed a truck with "youthful occupants . . . the driver looking down into the lap of the passenger," 517 U.S. at 808 (emphasis added), might therefore give Whren as well as Brown standing.
49. Whren, 517 U.S. at 813.
50. See State v. Kennedy, 588 A.2d 834, 838-39 (N.J. Super. Ct. App. Div. 1991) (suppressing evidence seized as result of discriminatory enforcement of the traffic laws by the New Jersey State Police under the Equal Protection and Due Process clauses of the Fourteenth Amendment); Davis, supra note 20, at 436 n.83 (describing State v. Soto, Superior Court of New Jersey (unpublished opinion, Mar. 4, 1996)); Hecker, supra note 20, at 563-64 (same); Maclin, supra note 20, at 346-49 (also discussing Soto).
51. Cf. Roaden v. Kentucky, 413 U.S. 496, 504 (1973) (explaining that searches of bookstores might be unreasonable, and thus unconstitutional under the Fourth Amendment, if they rise to the level of unconstitutional prior restraints under the First Amendment).
52. For general discussions of the importance of exclusion and the inadequacy of civil damages remedies, see, e.g., Donald A. Dripps, Beyond the Warren Court and Its Conservative Critics: Toward a Unified Theory of Constitutional Criminal Procedure, 23 U. MICH. J.L. REFORM 591 (1990);
53. Carol S. Steiker, Second Thoughts About First Principles, 107 HARV. L. REV. 820 (1994) [hereinafter Steiker, Second Thoughts].
54. See Sherry F. Colb, Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence, 96 COLUM. L. REV. 1456, 1482 (1996).
55. The Sixth Amendment right to appointed counsel applies only in criminal proceedings. See Lassiter v. Department of Social Services, 452 U.S. 18, 25-27 (1981).
56. The Maryland State Police case is discussed supra, text accompanying notes 22 and 26, and infra, text accompanying notes 56-58.
57. See, e.g., Jonathan D. Casper et al., The Tort Remedy in Search and Seizure Cases: A Case Study in Juror Decision Making, 13 L. & SOC. INQUIRY 279 (1988). The case study reviewed the empirical literature and concluded that police officers prevailed about three-quarters of the time and that, when plaintiffs won, the damages awarded were relatively minor (e.g., about a third of the plaintiffs who won received less than $1000, and 85% received less than $10,000). See id. at 283.
58. A simulation showed that denying jurors information about the outcome of the search - i.e., not telling jurors whether the allegedly illegal search uncovered evidence of crime - was the factor most likely to increase both the incidence and the size of damages awards. See id. at 298-300; Dripps, supra note 47, at 629 (noting that between 1971 and 1986, plaintiffs filed 12,000 Bivens actions but in only five did the defendants actually pay damages and identifying "two obvious reasons for the failure of civil plaintiffs to enforce the fourth amendment: first, juries sympathize with the police and not with criminals; second, search and seizure activity, however unconstitutional, ordinarily does not cause the kind of actual damages that our tort system compensates" (citing OFF. OF LEGAL POL., U.S. DEPT. OF JUSTICE, TRUTH IN CRIMINAL JUSTICE SYSTEMS, REPORT NO. 2, REPORT TO THE ATTORNEY GENERAL ON THE SEARCH AND SEIZURE EXCLUSIONARY RULE 40-41 (1986)));
59. Alison Patterson, Note, The Endless Cycle of Abuse: Why 42 U.S.C. § 1983 Is Ineffective in Deterring Police Brutality, 44 HASTINGS L.J. 753, 767-802 (1993) (describing the variety of difficulties with using § 1983 as a method of deterring police misconduct).
60. See William J. Stuntz, Warrants and Fourth Amendment Remedies, 77 VA. L. REV. 881, 912-13 (1991) [hereinafter Stuntz, Fourth Amendment Remedies]; see also Steiker, Second Thoughts, supra note 47, at 852-53 (discussing the hindsight problem).
61. 461 U.S. 95 (1983).
62. See 461 U.S. at 105-06.
63. See 461 U.S. at 111-12.
64. See Davis, supra note 20, at 440; Brennan, supra note 22, at 1.
65. Harris, supra note 20, at 566.
66. Brennan, supra note 22, at 18A.
67. That is, if the defendant gets seized evidence suppressed in those cases in which selective prosecution occurs - usually low-level offenses or victimless crimes - there is unlikely to be other evidence to support a conviction.
68. U.S. CONST. amend. VI. The Sixth Amendment fair cross-section and impartiality requirements apply to the states through the Due Process Clause of the Fourteenth Amendment. See Duncan v. Louisiana, 391 U.S. 145 (1968).
69. 476 U.S. 79 (1986).
70. See Thiel v. Southern Pac. Co., 328 U.S. 217 (1946).
71. See Witherspoon v. Illinois, 391 U.S. 510 (1968).
72. See, e.g., Taylor v. Louisiana, 419 U.S. 522 (1975) (involving male defendant who challenged exclusion of women from jury pool).
73. But see Peters v. Kiff, 407 U.S. 493,498 (1972) (holding, in a habeas case brought by a white petitioner, that the exclusion of blacks from juries violated the petitioner's due process rights). Peters v. Kiff was decided before the incorporation of the Sixth Amendment.
74. See Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2469 (1996) (explaining that inclusionary rules permit the use of unconstitutionally obtained evidence or uphold convictions based on improperly admitted evidence) [hereinafter Steiker, Counter-Revolution].
75. See, e.g., Eric L. Muller, Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, 106 YALE L.J. 93 (1996);
76. Barbara D. Underwood, Ending Race Discrimination in Jury Selection: Whose Right Is It Anyway?, 92 COLUM. L. REV. 725 (1992).
77. See Georgia v. McCollum, 505 U.S. 42 (1992).
78. This question is discussed extensively in Muller, supra note 67, at 97-107.
79. See, e.g., Taylor, 419 U.S. at 531; Peters, 407 U.S. at 503; Ballard v. United States, 329 U.S. 187, 193 (1946).
80. See, e.g., J.E.B. v. Alabama, 511 U.S. 127, 138-40 & n.11 (1994); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991).
81. See, e.g., Batson, 476 U.S. at 86; Strauder v. West Virginia, 100 U.S. 303, 308 (1879).
82. The view that racial classification perpetrates an expressive, or "non-instrumental," injury has recently emerged as a central piece of equal protection law, particularly in the area of voting rights. See, e.g., Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 MICH. J. RACE & L. 47, 65 (1996);
83. Richard H. Pildes & Richard G. Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election-District Appearances after Shaw v. Reno, 92 MICH. L. REV. 483 (1993).
84. See, e.g., Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (racial gerrymandering); Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995) (affirmative action); Shaw v. Reno, 509 U.S. 630, 647 (1993) (voting rights).
85. In Lockhart v. McCree, 476 U.S. 162, 183-84 (1986), the Court asserted that as long as each juror who serves is himself or herself impartial, the jury as a whole is impartial, regard-less of its composition.
86. For a summary of recent developments, see Harry T. Edwards, To Err Is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. REV. 1167, 1176-78 (1995); Muller, supra note 67, at 107-16.
87. See Sullivan v. Louisiana, 508 U.S. 275, 281 (1993); Arizona v. Fulminante, 499 U.S. 279, 307-08 (1991).
88. See Sullivan, 508 U.S. at 281; Fulminante, 499 U.S. at 307-08.
89. See Sullivan, 508 U.S. at 280; Fulminante, 499 U.S. at 309.
90. Fulminante, 499 U.S. at 310 (citing Vasquez v. Hillery, 474 U.S. 254, 263-64 (1986)); see also Sullivan, 508 U.S. at 281 (deficient reasonable-doubt instruction is never harmless); Waller v. Georgia, 467 U.S. 39, 46-47 (1984) (denial of right to public trial is never harmless); McKaskle v. Wiggins, 465 U.S. 168, 174 (1984) (denial of right to self-representation is never harmless); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (denial of counsel is never harmless); Tumey v. Ohio, 273 U.S. 510, 522 (1927) (biased judge is never harmless).
91. 316 U.S. 455 (1942).
92. Yale Kamisar, Betts v. Brady Twenty Years Later: The Right to Counsel and Due Process Values, 61 MICH. L. REV. 219 (1962).
93. See, e.g., Ford v. Norris, 67 F.3d 162, 170-71 (8th Cir. 1995); Rosa v. Peters, 36 F.3d 625, 634 n.17 (7th Cir. 1994); United States v. Thompson, 827 F.2d 1254, 1261 (9th Cir. 1987). For an argument that even per se reversal does not provide a sufficient deterrent to Batson violations, and that the correct remedy should be dismissal of the prosecution with prejudice, see Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 AM. CRIM. L. REV. 1099, 1116-23 (1994).
94. See Hillery, 474 U.S. at 264.
95. See Waller, 467 U.S. at 46-47.
96. Sullivan, 508 U.S. at 281; Fulminante, 499 U.S. at 308.
97. See United States v. Battle, 836 F.2d 1084, 1086 (8th Cir. 1987); cf. Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, 56 U. CHI. L. REV. 153, 170-73 (1989) (discussing the varying positions courts have taken on this question). Indeed, some state courts that have treated some Batson violations as harmless have pointed to the presence of some blacks on the jury as a factor tending to make any violation harmless. See, e.g., State v. Vincent, 755 S.W.2d 400, 403-04 (Mo. Ct. App. 1988). The more common move, as the text suggests, is simply not to find a violation as long as the government has left some blacks in the pool. See Alschuler, supra, at 171 n.79 (collecting such cases).
98. Ballard v. United States, 329 U.S. 187, 193-94 (1946) ("To insulate the courtroom from either [sex by excluding its members from the jury] may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.").
99. Fulminante, 499 U.S. at 309-10.
100. For discussions of the hindsight problem, see Steiker, Second Thoughts, supra note 47, at 852-53; Stuntz, Fourth Amendment Remedies, supra note 52, at 912-15.
101. 428 U.S. 465 (1976).
102. See 428 U.S. at 492-94.
103. See Allen v. Hardy, 478 U.S. 255 (1986); see also Muller, supra note 67, at 128 (discussing how Allen v. Hardy illuminates the paradoxical question of what actually constitutes a Batson injury).
104. See, e.g., United States v. Valley, 928 F.2d 130, 135 (5th Cir. 1991) (describing the deferential standard of review). One empirical study looked at 76 cases in which defendants had persuaded trial courts to require prosecutors to explain their peremptory strikes. In only three of the cases did the appeals court find that the proffered reasons were pretextual and reverse the convictions. See Joshua E. Swift, Note, Batson's Invidious Legacy: Discriminatory Juror Exclusion and the "Intuitive" Peremptory Challenge, 78 CORNELL L. REV. 336, 358 (1993).
105. For three extensive empirical examinations of Batson challenges, see Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 NOTRE DAME L. REV. 447 (1996);
106. Michael J. Raphael & Edward J. Ungvarsky, Excuses, Excuses: Neutral Explanations Under Batson v. Kentucky, 27 U. MICH. J.L. REF. 229 (1993); Swift, supra note 94. Melilli's data showed that prosecutors succeeded in providing an acceptable race-neutral explanation roughly 80% of the time that judges even required them to offer one. Melilli, supra, at 461. For a critical perspective on the entire enterprise of Batson enforcement, see Ogletree, supra note 83.
107. See United States v. Hinton, 94 F.3d 396, 396 (7th Cir. 1996).
108. See Chambers v. State, 724 S.W.2d 440, 442 (Tex. Ct. App. 1987) (finding neutral the decision to remove a juror because he belonged to the Church of Christ, "which [the prosecutor] regarded as a religious preference that was 'a little bit away from the main stream,'" and his handwriting was not very legible).
109. See, e.g., Galbert v. Merkle, No. C95-4065, 1997 WL 85012 (N.D. Cal. Feb. 24, 1997) (finding youth and obesity to be sufficiently race-neutral factors to justify the prosecutor's removal of all three black venire members).
110. See, e.g., United States v. Alvarado-Sandoval, 997 F.2d 491, 491-92 (8th Cir. 1993) (finding explanation sufficient when prosecutor struck juror because she was a "cosmetologist" and "I am going to get into an aiding and abetting type theory and just for whatever reason I did not want a cosmetologist"); Raphael & Ungvarsky, supra note 95, at 240-45 (collecting cases).
111. See, e.g., United States v. Williams, 934 F.2d 847, 849 (7th Cir. 1991) (finding explanation sufficient when excluded juror was a single mother who "might have other concerns"); Raphael & Ungvarsky, supra note 95, at 258-60 (collecting cases).
112. See, e.g., United States v. Jenkins, 52 F.3d 743, 747 (8th Cir. 1995); Palmer v. Lares, 42 F.3d 975, 980 (5th Cir. 1995); see also Raphael & Ungvarsky, supra note 95, at 246-49 (collecting cases).
113. See Raphael & Ungvarsky, supra note 95, at 273-74; Swift, supra note 94, at 364-65.
114. The denial of a Batson challenge cannot be appealed interlocutorily. Thus, the only cases appellate courts see are those in which the defendant has been convicted on at least some count.
115. See, e.g., Gamble v. State, 357 S.E.2d 792 (Ga. 1987). Gamble involved a black-on-white capital murder case in which most of the state's witnesses were white and most of the defense witnesses were black. 357 S.E.2d at 795. The prosecutor used all his peremptory strikes to remove potential black jurors and he removed all the potential black jurors. The Georgia Supreme Court found that the prosecutor's reasons for striking various black venire persons were "suspect under Batson," even though these reasons - age, church membership, attitude, occupations - often seem to satisfy reviewing courts.
116. See Darryl K. Brown, The Role of Race in Juror Impartiality and Venue Transfer, 53 MD. L. REV. 107 (1994) (suggesting racial differences may well affect juror decisionmaking on a range of issues);
117. Nancy J. King, Post-Conviction Review of Jury Discrimination: Measuring the Effects of Juror Race on Jury Decisions, 92 MICH. L. REV. 63, 88 n.92 (1993) (collecting studies).
118. United States v. Armstrong, 517 U.S. 456, 465 (1996) (quoting Wayte v. United States, 470 U.S. 598, 608 (1985)).
119. See Armstrong, 517 U.S. at 469-70.
120. See Washington v. Davis, 426 U.S. 229, 240 (1976).
121. 471 U.S. 222 (1985).
122. See Armstrong, 517 U.S. at 467.
123. Underwood v. Hunter, 604 F.2d 367, 370 (5th Cir. 1979) (emphasis added).
124. See Leatherman v. Tarrant County Narcotics Unit, 507 U.S. 163, 164 (1993) (explaining that heightened pleading requirements demand plaintiffs allege with specificity, prior to discovery, facts that tend to prove their claim).
125. See, e.g., City of Los Angeles Dept. of Water & Power v. Manhart, 435 U.S. 702, 708-09 (1978).
126. Miller v. Johnson, 515 U.S. 900, 911-12 (1995) (quoting Shaw v. Reno, 509 U.S. 630, 647 (1993)).
127. See, e.g., Bush v. Vera, 517 U.S. 952, 994-95 (1996) (O'Connor, J., concurring) (discussing the history of racial bloc voting in Dallas County, Texas); Shaw v. Hunt, 861 F. Supp. 408, 464-65 (E.D.N.C. 1994) (three-judge court) (discussing racial polarization in North Carolina), revd. on other grounds, 517 U.S. 899 (1996).
128. 518 U.S. 515 (1996).
129. 518 U.S. at 542.
130. Armstrong, 517 U.S. at 469.
131. See Armstrong, 517 U.S. at 469. The statistics are circular because they are exactly what one would expect if race were in fact the explanation for the pattern of prosecutorial decisions.
132. 517 U.S. at 469-70. Those statistics, of course, might also be used to support Armstrong's claim, unless the Court is wedded to the proposition that sentencing rates track exactly the incidence of crime. For reasons William Stuntz suggests, this seems unlikely: the far more plausible conclusion is that drug crime involving black sellers is prosecuted at a higher rate than similar crime involving whites. See William J. Stuntz, Race, Class, and Drugs, 99 COLUM. L. REV. (forthcoming Nov. 1998) (manuscript on file with author) [hereinafter Stuntz, Race, Class, and Drugs].
133. See McCleskey v. Kemp, 481 U.S. 279, 312-13 (1987) (accepting that the optimal level of discretion in the criminal justice system may necessarily produce some racial disparities).
134. David S. Sklansky, Cocaine, Race, and Equal Protection, 47 STAN. L. REV. 1283, 1307 (1995)
135. (quoting Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7-8 (1976)).
136. See Stuntz, Race, Class, and Drugs, supra note 120.
137. 471 U.S. 222 (1985).
138. See Hunter, 471 U.S. at 223 n.* (reproducing constitutional provision).
139. See Hunter, 471 U.S. at 232.
140. See Hunter, 471 U.S. at 233.
141. Armstrong, 517 U.S. at 467 (internal quotation marks omitted).
142. See Griffin v. Prince Edward County School Board, 377 U.S. 218 (1964).
143. See Palmer v. Thompson, 403 U.S. 217 (1971).
144. See Paul Brest, Foreword: In Defense of the Antidiscrimination Principle, 90 HARV. L. REV. 1, 7-8 (1976).
145. Armstrong, 517 U.S. at 461 n.2.
146. See Randall L. Kennedy, McCleskey v. Kemp, Race, Capital Punishment, and the Supreme Court, 101 HARV. L. REV. 1388, 1436-38 (1988).
147. See supra text accompanying notes 47-52.
148. This problem is not unique to criminal law. As I have argued with regard to another racially charged area of the law - legislative redistricting - some areas of governmental decisionmaking raise such distinctive problems that jamming them into standard doctrinal pigeonholes "is both misguided and incoherent." Pamela S. Karlan & Daryl J. Levinson, Why Voting Is Different, 84 CAL. L. REV. 1201, 1202 (1996).
149. Sklansky, supra note 122, at 1284.
150. See supra text accompanying notes 124-28.
151. United States v. Hays, 515 U.S. 737, 745 (1995).