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April 6, 2006

Proving Discrimination: Why Armstrong's Gotta Go.

I
've always been troubled by the Supreme Court's 1996 decision in United States v. Armstrong. The question in the case was how much evidence of a racially discriminatory motive a criminal defendant has to produce in order to convince a trial court to give him access to possible evidence of discrimination from within the prosecutor's office itself (memoranda, statistics, and the like).

The defendants in the Armstrong case had come forward with some evidence -- not a ton, but some -- that the US Attorney in Los Angeles was singling out blacks for crack cocaine prosecutions in federal court. It was enough evidence to persuade the federal trial judge to allow the defendants discovery of some material in the prosecutor's files and records. But the Supreme Court shut that discovery down, pooh-poohing the evidence of racial discrimination that the defendants had managed to come up with and setting an absurdly high burden of proof for defendants trying to prove discriminatory prosecution.

When I teach the case in class, I always take time to get students to see how high that burden really is, and how the ordinary, relatively impoverished criminal defendant could never dream of being able to assemble the body of evidence of discrimination that the Court's Armstrong opinion insists upon.

Enter the ACLU. In Georgia, prosecutors are allegedly discriminating on the basis of race in deciding which convenience store owners to charge with selling constitutent materials for the production of methamphetamine. They're said to be going after just the South Asian store owners, and leaving white store owners alone. After a federal judge rejected their request for discovery of the prosecutor's motives under Armstrong, the ACLU decided to spend $60,000 on a study documenting the discrimination. It's compelling stuff:

"Of 629 convenience stores in the six-county area in the sting, 80 percent are owned or operated by whites, according to the A.C.L.U.'s court filing, but fewer than 1 percent of the stores in the sting are white-owned or operated. The filing said the clerk at the only white-operated store was known widely as a methamphetamine addict whose husband was in prison for making the drug. None of the Indians charged are accused of using or making methamphetamine."
Armstrong is bad law; the ordinary defendant could never come up with the $60,000 that the ACLU threw at this case. Hopefully, the Supreme Court will someday recognize that race discrimination still sometimes infects prosecutor's charging decisions, and that its Armstrong opinion just wishes the problem away.

In the meantime, props to the ACLU for stepping in and doing what the defendants themselves could not.

Posted by Eric at April 6, 2006 12:22 PM

Comments

A buddy of mine used to make meth. The store owners, all of whom were of the same ethnicity, knew perfectly well why he was buying so much generic Sudafed

Posted by: Bobo at April 6, 2006 3:01 PM

Why don't you spend your time critizing Michelle Malkin rather than continuing to pretend that you understand the law!

Posted by: HandsDirty at April 6, 2006 3:29 PM

The threshhold showing of discriminatory prosecution required to justify discovery is part of what the Supreme Court should have addressed in Wayte v. U.S. (470 U.S. 598), but didn't. The majority decided Wayte as though the factual record was complete, although as Justice Marshall argued in dissent it was really a discovery case. I think your critique of Armstrong only helps call attention to how horribly ill-decided the Wayte case was.

(I'm not a lawyer, but I was one of the people selected for prosectution in the group with David Wayte, and followed the case from the start through attending the oral argument.)

Posted by: Edward Hasbrouck at April 7, 2006 6:59 PM

From the linked article:
Of 629 convenience stores in the six-county area in the sting, 80 percent are owned or operated by whites, according to the A.C.L.U.'s court filing, but fewer than 1 percent of the stores in the sting are white-owned or operated.

and:
23 out of 24 stores in the sting were owned or operated by Indians.

Hmmm. Here's a question: had the study been done by an organization named the Asian American CLU, would I have noticed the discrepancy?

Posted by: AC at April 8, 2006 10:33 AM