To the Editor:
udos to Heather Mac Donald for her article, “Obama’s Assault on the Police” [March]. As a prosecutor for more than 30 years, I have witnessed firsthand the pernicious effect that playing the race card has on the criminal-justice system. When I say, “playing the race card,” I mean reflexively accusing the system of racial bias whenever someone can identify a racial or ethnic disparity that is a product of governmental action. Three brief examples from my career will illustrate my point.
Almost two decades ago, I litigated a capital defendant’s claim that the method for summoning jurors in Connecticut was unconstitutional because it was biased against blacks and Hispanics. The claim was based on disparities between the percentage of blacks and Hispanics in the population versus their appearance in venires summoned to select petit juries. Both the defense and prosecution undertook full statistical analyses to provide concrete evidence to the court. Anecdotally, however, everyone “knew” there was a disparity and thus “knew” there was active discrimination. Consequently, rather than wait for the outcome of the studies, the legislature altered the system.
Had they waited, legislators would have learned that what everyone “knew” was wrong. The existing process did not discriminate in the least bit. Indeed, it did a phenomenal job of producing jurors from those available and qualified to serve. What the studies told us was two things. First, blacks were not underrepresented in the summoning process. This prompted the defense to withdraw that claim. Second, as for Hispanics, the disparity between their proportions in the population versus their appearance for jury service was based not on any flaw in the system, but rather on differences in lifestyles and mobility that had more to do with poverty than being Hispanic. These differences rendered them unavailable or disqualified for legitimate reasons. In sum, the legislature made the jury-summoning process more expensive and cumbersome for no reason other than perceived disparities that, in the end, had nothing at all to do with discrimination or any flaw in the summoning process.
A few years later, I was on a committee studying racial bias in the entire criminal-justice system. Interestingly, the legislative charge to this commission was conclusive: It declared that such discrimination existed and told the committee to identify concrete examples. I chaired a subcommittee studying racial disparities in sentencing. This is a crucial area because of the legitimate concern that minorities disproportionately populate our prisons. To the politically correct, this disparity most certainly confirmed that discrimination existed. After a complete study, we learned, however, that race was not a statistically significant contributor to length of sentence. Rather, as one would expect, the biggest contributors were the severity of the crime and the defendant’s criminal history. Any disproportionate representation in prisons, therefore, reflected something other than bias in the criminal-justice process.
Finally, we have Connecticut’s death penalty. From the start, those opposed to capital punishment accused the state of administering it in a biased manner. They promised the Connecticut Supreme Court a complete dispositive study in 2003. That study, however, did not show discrimination, so it was buried for years by those who commissioned it. Ultimately the public defenders found someone willing to produce a study that would prove bias. This study was then presented to a trial court, reviewed by the state’s expert, and tested by the adversary process. The trial court ruled that the study did not prove bias. Although that case is now on appeal to the Connecticut Supreme Court, that court chose not to wait. Rather than evaluate the appeal from the actual litigation that debunked the racial-bias claim, it invalidated the death penalty in a case in which the issue was not litigated. In so ruling, the court relied on untested studies from other states and, ironically, relied on a law-review article by the very expert whose Connecticut study was rejected in litigation.
Playing the race card in this manner has a profound detrimental impact on our society. It leaves policymakers uninformed about the real problems we face and thus incapable of seeking meaningful solutions. In the meantime, enormous resources are squandered on misguided reforms and programs. And, most perniciously, a misinformed society is left divided on racial lines.
West Hartford, Connecticut
Heather Mac Donald writes:
hanks to Harry Weller for providing such concrete examples of how the obsession with racism distorts the criminal-justice system. For the last quarter century, the country’s political and media elites have been obsessively focused on changing the subject from the uncomfortable reality of black crime to the phantom problem of police and prosecutor racism. Mr. Weller correctly identifies the financial costs of such a diversionary tactic, as well as the sheer waste of time and energy devoted to implementing alleged solutions to a non-problem. The lie of criminal-justice-system racism does more than leave society “divided on racial lines,” as Mr. Weller puts it. That lie is now endangering law and order itself. Police officers are facing increasingly violent challenges to their authority in urban areas, putting their own lives and those of innocent bystanders at risk.