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Is It Really an In-Justice System?

[Originally appeared in the New York Post, Sept. 30, 1996]

For many, it's an article of faith: The justice system is stacked against African-Americans. Last spring, a holdover Cuomo-era state panel made headlines by charging that black defendants get tougher sentences than similarly situated whites; the Pataki administration repudiated its report.

"Study after study verifies that color makes a difference at every stage of a criminal case", according to law professor and O.J. defense lawyer Gerald Uelmen. "Whites do better at getting charges dropped or reduced to lesser offenses." Do they? On Wednesday, the Center for Equal Opportunity will release figures suggesting that black defendants actually do better than whites at beating criminal charges. Moreover, although the numbers are sketchy, big-city juries may be acquitting blacks at a higher rate than whites.

The Washington-based center, best known for its president Linda Chavez, hired analyst Robert Lerner to assemble numbers from a U.S. Justice Dept. database of 56,000 felony cases filed in state courts in the nation's 75 largest cities in May 1992. The cities account for most of the nation's violent crime and an even bigger share of blacks' encounters with the criminal justice system.

Black defendants, it turns out, were convicted at a higher rate than whites in only two of the fourteen federally designated felony categories. These two categories also happened to be the two smallest: felony traffic offenses and a miscellaneous category of crimes not against persons or property. In the other 12 categories, black defendants escaped conviction at a higher rate than whites.

Many of the differences were modest. Thus, 38 percent of blacks charged with robbery beat the rap compared with 35 percent of whites; burglary, 25 percent vs. 21 percent; assault, 49 percent vs. 43 percent; theft, 27 percent vs. 25 percent. Murder cases showed a mere one-point difference (24 percent of blacks not convicted, 23 percent of whites) with equally tiny disparities for public order offenses and miscellaneous property crimes.

Blacks did significantly better than whites at beating drug and weapons charges. On drug trafficking charges, 24 percent were not convicted versus 14 percent of whites; similar margins were seen for other drug offenses (32 percent vs. 23 percent) and weapons charges (32 percent vs. 22 percent). The other side's obvious rejoinder is that blacks are being overcharged with these offenses in the first place. When DAs find the evidence won't hold up, this side maintains, they have to drop the cases.

Admittedly, the center's numbers can't resolve this challenge, but they do cast doubt on the simple idea that prosecutors and judges are adding their own dose of bias against blacks. (Hispanic defendants, incidentally, fared roughly the same as whites overall.) And this still leaves the study's most explosive finding: Whopping disparities in favor of black defendants accused of rape and other crimes against individuals that fall outside the dominant trio of categories -- murder, robbery and assault.

Other crimes against persons, a catch-all category covering charges from manslaughter to extortion to felony child abuse, showed a wide gap: 48 percent of blacks escaped conviction versus 28 percent of whites. And a startling 51 percent of rape charges against blacks ended in non-conviction compared with 25 percent for whites.

These happened to be the same two categories in which juries showed the most extreme tendency to acquit black defendants. Of cases that made it to trial, juries acquitted 69 percent of black defendants in other-crimes-against-persons cases, as against 29 percent of whites. And they acquitted 83 percent -- yes, I thought it was a misprint too, but Lerner says it's the real number -- of blacks charged with rape, compared with just 24 percent of whites.

Before readers fall off their chairs, they should know there are reasons to view these figures with caution. First, though the overall figures on non-convictions draw from a large set of cases, those on jury acquittals reflect small sample sizes: Most cases end in guilty pleas or dismissals, and only a few percent make it to juries. Second, and consistent with the greater randomness you'd expect given small sample sizes, juries did not show a reliable pattern of racial bias or lenience.

In two big categories, robbery and assault, they actually acquitted blacks at a lower rate than whites (12 vs. 18 and 37 vs. 42 percent respectively). And the low acquittal rates for both races on such charges as burglary and drug trafficking (where fewer than 10 percent of either race won acquittals) don't hint at an indiscriminate turn-'em-loose view.

Moreover, the figures don't necessarily point to a greater willingness to excuse black-on-white crime: in most rape and violent-crime charges accuser and defendant are of the same race. Finally, we can't assume that lower acquittal rates are simply better: Facts can truly be doubtful and defenses or mitigating circumstances real, one reason both races may show high acquittal rates on such charges as assault.

All that having been said, you can bet we'd hear plenty about the figures if they'd come out the other way. And the numbers are sure to fuel the debate about whether some inner-city juries are letting defendants off at the cost of ignoring the law and the evidence. While the nationwide acquittal rate is reported at 17 percent, it's said to exceed 30 percent in some big cities and to be approaching 50 percent for black defendants in The Bronx.

Some actually cheer this trend. In a much-quoted Yale Law Journal article, Paul Butler, a law professor at George Washington University, wrote that "when the criminal justice system discriminates against people who are African-American and poor, black jurors are legally and morally justified in acquitting those persons" -- even though African-Americans are typically the chief victims when freed wrongdoers go on to commit more crimes.

Jury acquittals, even if few, also help drive the entire system because plea bargaining takes place in their shadow. It's suggestive that prosecutors appear to be dropping cases beforehand in much the same general pattern in which those cases run into trouble with juries. The Simpson case may be a year old, but the need for a hard look at the performance of our trial system grows only more urgent.