Discrimination in the criminal justice system is back in the news. Last Monday, the Supreme Court decided Foster v. Chatman. The case involved the discriminatory use of peremptory challenges by the prosecutor in a 1988 Georgia death penalty case. The prosecutor had removed all the eligible black jurors, and when called to account, gave a laundry list of supposedly race-neutral reasons. The explanations were laughable and the Supreme Court, in a 7-1 decision by Chief Justice Roberts, swept them aside.
The decision is exceptional, though not for the reason that has attracted so much attention. Commentators were aghast that the prosecutor could have been so brazen and so obvious as to keep racially coded notes in his file that carefully identified the black jurors and marked them for exclusion. Surely the facts in Foster make it an outlier, a hold-over from an age long gone, right?
Wrong. As Linda Greenhouse pointed out prior to oral argument, violations of the sort exposed in Foster are routine. In fact, Foster is unusual not for the conduct condemned, but for the evidence unearthed; the racially coded notes were disclosed years after the trial in response to a request by Foster’s lawyers under the state open records act, thus exposing a practice that typically goes undiscovered.
Instead, the decision in Foster is remarkable precisely because the case is so routine, and therefore such an improbable candidate for Supreme Court review. The Court does not typically take a case, even a capital case, merely to right an obvious wrong. It happens occasionally, but so infrequently as to warrant some speculation about ulterior motives. Then there is the procedural posture. The Court took Foster off a summary denial by the Georgia Supreme Court in state post-conviction proceedings, which, as Justice Alito noted in concurrence, was once all but unheard of and even now remains distinctly uncommon. In fact, the Court had denied two prior applications by Foster at earlier moments in the state post-conviction process.
So what’s up? Of course, we cannot know for sure. The Court is inscrutable and deliberately does not account for its behavior. But I wonder whether the Court is finally trying to come to grips with the modern face of discrimination in the criminal justice system. If so, it sure has a long way to go.
In part, the problem lies with the legal test. As a rule, a person cannot get the benefit of the Equal Protection Clause unless she was the victim of deliberate discrimination. Yet purposeful discrimination is almost impossible to prove. Actors can almost always provide a race-neutral explanation for their behavior. Editorializing after the decision in Foster, the New York Times wondered whether the case would make much of a difference, since “lawyers are rarely so overt about their efforts to racially engineer juries.” And even when they are, their true motivations are almost never discovered. Justice Thomas, the lone dissenter in Foster, took the majority to task for relying on the notes in the prosecutor’s file, as though society would’ve been better off if the truth had remained hidden. Fear not, Justice Thomas: in most cases, it does.
Precisely because state actors can so easily game the system, a number of prominent commentators, including Second Circuit Judge Jon Newman and my fellow Verdict columnist Vik Amar, as well as the late Justice Thurgood Marshall, have argued we should do away with peremptory strikes altogether. That may solve the problem of discrimination in jury selection, but it does nothing to address the far more serious and pervasive problem of discrimination at other points in the criminal justice system. Vanishingly few criminal cases go to trial, but every criminal case involves discretionary decisions by state actors that may be discriminatory.
And when it comes to those decisions, the Court blocks almost all inquiry into subjective motivations. I may suspect Officer Jones stopped me as I drove through town because I am Jewish, but if he points out that I was driving with a broken taillight, I cannot quiz him on his religious preferences. So long as I actually had a broken taillight, the courts take his explanation at face value and are done with it. And of course, I am not the person stopped. As Charles Epp and his colleagues demonstrate in their book Pulled Over: How Police Stops Define Race and Citizenship, it is disproportionately the black motorist for whom the broken taillight provides a ready and legally impenetrable pretext, even if the same violation by a white driver would not culminate in a traffic stop. Foster is thus a welcome decision, but if anyone thinks it will have more than a passing effect on discrimination in the criminal justice system, they are mistaken.
Yet the problem runs much deeper than the test designed by the Court. The problem lies with an outdated conception of the behavior. Collectively, society views discrimination as an artifact of a bygone era, an evil to be condemned and corrected. And because we attach normative consequences to it—because, in other words, we say the perpetrator has done a morally bad thing—we demand proof that the offense is purposeful, lest we condemn wrongly.
But what if the behavior is not at all purposeful? What if the determination to act against blacks (or Jews, or women, or Muslims) is not the product of a conscious choice at all, but the expression of a socially constructed, implicit bias? In today’s world, this form of bias is far more common than the bias identified in Foster, and far more likely to be operating in any individual case. Yet the actor may believe, sincerely, that she acts with the best of intentions, with no willful desire to discriminate. Modern equal protection doctrine is powerless in the face of this behavior.
To get at the contemporary face of discrimination, we have to let go of the idea that the behavior is an individual wrong by one person against another, and reconceive it as a social wrong by a person against the community. Whether the individual acted purposely should be irrelevant. In fact, in most cases we can stipulate to her good faith. Obviously, when bad faith reveals itself, as in Foster, we should take action. But its absence should not render us impotent.
If we know that a particular implicit bias is pervasive in society (a fact that can be and has been empirically confirmed), and that the operation of this bias produces socially undesirable disparities in a particular domain, we should presume that any given case contributing to the disparity is tainted by bias and therefore illegitimate. The state should be allowed to overcome the presumption if it shows the action would have taken place regardless of the race (or religion, or gender, etc.) of the actors involved—a showing that can be made, for instance, by demonstrating that whites are subject to the same practice at comparable rates. But failing that, the conduct should be disallowed.
Do we know as a fact that the actor was biased—that the officer stopped Mr. Smith because she harbors a bias against blacks? Emphatically not. In fact, we should concede the officer was entirely pure of heart, at least at the conscious level, and we should not condemn her for her behavior. We should not, for instance, subject her to civil liability. But we should nonetheless prevent her actions from damaging the community.
We must always bear in mind that she has not committed an individual wrong. Instead, she has committed a wrong against the group. She, like everyone else, is a product of the world around her, a world we wish were different. But unless we change our conception of discrimination, we’ll never make it so.