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U.S. Supreme Court criminal procedure jurisprudence inhabits an unreal world where law enforcement abuse of power and racist law enforcement practices are rare. The defendant who attempts to challenge this “raceless world” by making a claim of racially biased prosecution faces the nearly impossible task of proving that prosecutors acted with an intent to discriminate. The Supreme Court’s opinions in United States v. Armstrong and United States v. Bass made this task all that more difficult by holding that to gain discovery to support a selective prosecution claim, the defendant must first prove that “similarly situated” whites were treated more favorably. As Gabriel Chin summarizes: “one cannot even get discovery without evidence, and one can rarely get evidence which will satisfy a court without discovery.” In this article, I address the “real world” of criminal law enforcement. In the first section, I discuss the overwhelming empirical evidence of the criminal justice system’s unjust and unequal treatment of African Americans and Latinos. In section two, I criticize the Court’s response in Armstrong and Bass to claims of racially biased prosecution, demonstrating that the “similarly situated” standard is an indeterminate standard: by focusing on one potential area of similarity and ignoring others, courts hostile to these claims easily find that the defendant has failed to meet his burden. Finally, in the third section, I discuss the most prominent rationale for race disparities in federal drug enforcement arrests and prosecution: federal agents are focusing on violent street gangs engaged in large-scale drug trafficking and these gangs are predominantly African American in membership. The validity of the claim is weakened by research that finds that most federal prisoners convicted on drug charges are non-violent offenders and most are not affiliated with a criminal organization. Furthermore, it is largely impossible to disaggregate racial differences in arrests and prosecution that are the result of enforcement patterns from those that are the result of actual differences in offending. In the final analysis, the decision to define some drug sellers as gang members, some organizations as “gangs,” and to ascribe the violent behavior of some gang members to that of others is wholly within the discretion of the prosecutor and not subject to proof requirements. In the final section, I examine the potential for change in the racist operation of the criminal justice system. Changing white misperceptions of crime and criminal offending have the potential to result in legislative and policy changes. I identify four obstacles to changing white perceptions: (1) deeply imbedded racist stereotypes of black criminality; (2) the tendency of whites to understand race discrimination only in terms of intentional acts of a bad actor; (3) the invisibility of white privilege to whites. In conclusion, I examine the Innocence Movement for its potential to be a vehicle for challenging white support, or complacency regarding, racial injustice in the criminal justice system.

Foreword: Addressing the Real World of Racial Injustice in the Criminal Justice System