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Drug War Discrimination

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The American Civil Liberties Union is accusing federal prosecutors of ethnic bias in a sting last summer in which South Asian owners of convenience stores in Georgia were charged with selling household ingredients that could be used to make methamphetamine, a highly addictive drug.

In a legal filing, the A.C.L.U. said yesterday that prosecutors ignored extensive evidence that white-owned stores were selling the same items to methamphetamine makers and focused instead on South Asians to take advantage of language barriers.

The sting sent informants to convenience stores in six counties in rural northwest Georgia beginning in 2003 to buy ingredients that can be used to make the drug– ordinary household items like Sudafed, matches, aluminum foil and charcoal.

[…]

Documents filed by the A.C.L.U. yesterday include a sworn statement from an informant in the sting, saying that federal investigators sent informants only to Indian-owned stores, “because the Indians’ English wasn’t good.” The informant said investigators ignored the informant’s questions about why so many South-Asian-owned stores were visited in the sting.

Other filings said prosecutors had several tips that more than a dozen white-owned stores were selling the same ingredients, but failed to follow up on them. According to a sworn statement from a witness, law enforcement officials tipped off a white store owner about the investigation and recommended ways to avoid scrutiny.

The War on (Some Classes of People Who Use Some) Drugs: where civil liberties and equal protection go to die.

Eric Muller is also correct in noting the problems with U.S. v. Armstrong. The Supreme Court has created a nice Catch-22. One the one hand, defendants need evidence of individualized discrimination, not just evidence of systematic discrimination. On the other, because of Armstrong, for all but the most deep-pocketed defendants obtaining evidence of such discrimination is made much more difficult. Justice Stevens, in his (shamefully solo) dissent in Armstrong explains:

Finally, it is undisputed that the brunt of the elevated federal penalties falls heavily on blacks. While 65% of the persons who have used crack are white, in 1993 they represented only 4% of the federal offenders convicted of trafficking in crack. Eighty eight percent of such defendants were black. During the first 18 months of full guideline implementation, the sentencing disparity between black and white defendants grew from preguideline levels: blacks on average received sentences over 40% longer than whites. See Bureau of Justice Statistics, Sentencing in the Federal Courts: Does Race Matter? 6-7 (Dec. 1993). Those figures represent a major threat to the integrity of federal sentencing reform, whose main purpose was the elimination of disparity (especially racial) in sentencing. The Sentencing Commission acknowledges that the heightened crack penalties are a “primary cause of the growing disparity between sentences for Black and White federal defendants.”

The extraordinary severity of the imposed penalties and the troubling racial patterns of enforcement give rise to a special concern about the fairness of charging practices for crack offenses. Evidence tending to prove that black defendants charged with distribution of crack in the Central District of California are prosecuted in federal court, whereas members of other races charged with similar offenses are prosecuted in state court, warrants close scrutiny by the federal judges in that District. In my view, the District Judge, who has sat on both the federal and the state benches in Los Angeles, acted well within her discretion to call for the development of facts that would demonstrate what standards, if any, governed the choice of forum where similarly situated offenders are prosecuted.

[…]

The majority discounts the probative value of the affidavits, claiming that they recounted “hearsay” and reported “personal conclusions based on anecdotal evidence.” But the Reed affidavit plainly contained more than mere hearsay; Reed offered information based on his own extensive experience in both federal and state courts. Given the breadth of his background, he was well qualified to compare the practices of federal and state prosecutors. In any event, the Government never objected to the admission of either affidavit on hearsay or any other grounds. It was certainly within the District Court’s discretion to credit the affidavits of two members of the bar of that Court, at least one of whom had presumably acquired a reputation by his frequent appearances there, and both of whose statements were made on pains of perjury.

The criticism that the affidavits were based on “anecdotal evidence” is also unpersuasive. I thought it was agreed that defendants do not need to prepare sophisticated statistical studies in order to receive mere discovery in cases like this one. Certainly evidence based on a drug counselor’s personal observations or on an attorney’s practice in two sets of courts, state and federal, can “ten[d] to show the existence” of a selective prosecution.

This is an important point–the kinds of evidence would evidently not suffice to prove the discrimination in itself, but surely it should be enough to order discovery to see if there is evidence of indvidualized discrimination or not. As Muller points out, making a discovery order contingent on sophisticated regression analysis makes it impossible for the ordinary defendant in a drug case to actually prove discrimination. And, of course, this discrimination is crucial to the continuation of the drug war; if these laws were applied generally and fairly, it would be far more difficult to sustain draconian punishments. Obviously, under the Alitofied Court it’s pointless to talk about Armstrong being overturned, but it’s part of a very serious problem.

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