Response or Comment
For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy's The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), and their resounding implications. In particular, this Essay focuses on two timely and controversial law enforcement issues facing the courts and the African-American community: the crack/powder cocaine distinction in criminal statutes and selective prosecution claims based on the disparity between federal and state sentencing schemes. The author examines the experiences of the African-American community that shape the response to these issues by addressing the constitutional claims raised by African-American defendants in two portentous criminal cases—one state and one federal—and confronting important arguments made by Kennedy in the areas of law enforcement and constitutional analysis. In addition, the author explores briefly the implications of Kennedy's arguments in these and other like cases. The first case, State v. Russell, involves the infamous crack/powder cocaine distinction in a Minnesota criminal statute. Kennedy's Comment characterizes this case as an example of a state court's erroneous decision to equalize sentencing among crack and powder cocaine offenders in response to "misguided" claims of racial discrimination from African-American criminal defendants and, presumably, a segment of the African-American community. In the second case, United States v. Armstrong, the Supreme Court elucidated the threshold requirements for establishing a selective prosecution claim based on allegations that African-American defendants are prosecuted more frequently in federal rather than state courts for cocaine-related offenses and are, consequently, subject to harsher penalties. In addition, the Court articulated the evidentiary showing necessary to entitle such defendants to discovery. Armstrong offers an opportunity to examine the implications of Kennedy's arguments in shaping rules that affect the discovery of evidence, and, by consequence, a defendant's ability to prove discriminatory intent—a crucial element in establishing a prima facie case of racial discrimination. Accordingly, Part II sets forth Kennedy's arguments regarding race and law enforcement presented in his Comment. The author critiques and examines several weaknesses in Kennedy's theories in Part III and highlights important counterarguments that he either failed to address or addressed insufficiently. Finally, in Part IV, the author tests the consistency and application of Kennedy's arguments in cases such as Armstrong and concludes by developing Kennedy's community-oriented approach into a paradigm that is not so fundamentally hostile to racial discrimination claims based solely upon disparate impact.
Nelson, Janai S., "Disparate Effects in the Criminal Justice System: A Response to Randall Kennedy's Comment" (1997). Faculty Publications. 30.