Editorial:
Unattainable
Standards
12/15/00
David Borden, Executive Director, [email protected] Americans are still reeling, or are relieved by, the long-awaited end of the post-election presidential legal saga. Sealing George Bush's victory, and Al Gore's defeat, was a Supreme Court ruling based, rightly or wrongly, on the requirement of equal protection under the law. The ruling, in its own words, set an unattainable standard for meeting that requirement in the Florida vote count by the deadline it set for the count's completion. Cheer or cry, applaud or boo, that is a feature of the ruling that its authors directly acknowledged in the written opinion itself. But the court's defense of equal protection in Florida's election stands in stark contrast with its rulings on equal protection under the drug laws. Those rulings also set unattainable standards, but not with the effect, or intention, of enforcing equal protection. Rather, the Supreme Court's rulings in drug cases have set an unattainable standard of evidence that defendants must present in order to benefit from equal protection. In 1992, for example, Christopher Lee Armstrong and four friends, all of them black, were arrested for conspiracy to distribute crack cocaine. At trial, according to David Cole's "No Equal Justice," Armstrong's lawyers raised a claim of selective prosecution: In the 77 crack cocaine cases that the Los Angeles federal public defenders office had taken in four years, 72 of the defendants were black and five Hispanic. Yet many white defendants had been prosecuted for crack cocaine in California's state system, where the penalties are much less harsh. Federal evidence added even more weight to the charge: The United States Sentencing Commission found in 1995 that 65% of crack users are white -- yet of 2,400 people charged with federal crack cocaine violations over a three-year period, all but eleven were black, and none white. A trial court considered this strong enough evidence to open prosecutorial records ("discovery," in legal terms) to determine whether Armstrong's claims of racial selectively were well-founded. But prosecutors appealed to the Supreme Court, which ordered the records closed. As Cole writes, "The Court seemed to go out of its way to ensure that Armstrong's claims of race discrimination would not see the light of day." Nevertheless, it is clear to any reasonable observer that prosecutorial choices had led to much harsher sentencing for all black and Hispanic crack cocaine offenders during the three-year period examined, than of all white crack cocaine offenders during that period, at least in the populous state of California. How strong does evidence for unequal protection in drug cases have to be, before the Supreme Court will even allow the evidence to be allowed, much less overturn a conviction or reduce a sentence? Equal protection, by one interpretation at least, won the day for the George W. Bush campaign. But the "drug exception" to the Constitution brooked no such consideration for Christopher Armstrong as he faced hard years out of his life in a federal penitentiary, and to prison he went. He never had a chance, not before the Supreme Court. The standards were simply unattainable.
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