D. The 1960s to the Present
The 1960s were a significant period of upheaval and change in society and for minorities in the American justice system.With broad changes such as the Civil Rights Act of 1964 (Pub. Law 88–352, 78 Stat. 241) and the National Voting Rights Act of 1965 (42 U.S.C. § 1973–1973aa-6), the legal landscape slowly adapted to the realities of past injustices. A number of criminal cases decided by the U.S. Supreme Court under Chief Justice Earl Warren added to this change (Schwartz, 1996). During 1961, the Supreme Court decided the case of Mapp v. Ohio (1961). By its decision in Mapp, the U.S. Supreme Court overruled Wolf v. Colorado and held that the exclusionary rule—that evidence seized in violation of the Fourth Amendment was held inadmissible in both state and federal criminal proceedings—was directly applicable to the states. However, the Mapp decision is also important in regard to the issue of race and the criminal justice system. The defendant, Dollree Mapp, was an African American woman whose house was illegally searched without a warrant. The Mapp decision was the first landmark decision concerning the universal application of a constitutional rule of criminal procedure involving a racial minority (Long, 2006).
The 1960s also saw the decision of the U.S. Supreme Court in Miranda v. Arizona (1966). Ernesto Miranda was a Hispanic man arrested for rape and kidnapping. He was not well educated. Despite maintaining his innocence, after police interrogation Miranda signed a confession that led to his conviction. Miranda subsequently appealed, and the U.S. Supreme Court ruled that police had to advise suspects of their rights, to include access to counsel, before interrogation. The Miranda decision reinforced the principle that even the lowliest person was entitled to the rights of criminal procedure guaranteed by the Constitution and the Bill of Rights and that minorities should be given equal protection of the law (Hall, 2005).
Capitalizing on these principles, under Chief Justice Warren, the U.S. Supreme Court expressly overruled a number of the Jim Crow laws enacted in the late 19th and early 20th centuries. In McLaughlin v. Florida (1964) and Loving v. Virginia (1967), the Warren Court struck down laws that criminalized interracial marriage.
Although not directly concerning criminal prosecution, a decision of the Warren Court in 1961 allowed those persons who suffered violations of their civil rights in the context of criminal investigations and prosecutions to seek civil relief under the Civil RightsAct of 1871 and 42 U.S.C. 1983. In Monroe v. Pape (1961), the U.S. Supreme Court allowed civil rights suits against government officials to be brought for damages. This was an extraordinary decision that breathed life into the Civil Rights Act of 1871 and 42 U.S.C. § 1983, which had been rarely used since its enactment almost a century before. Since that decision, suits brought under these laws have limited the powers of the government to enforce criminal law and required the more just and equitable application of the criminal law for minorities under the equal protection and due process clauses of the Fourteenth Amendment.
Many more civil rights laws were passed in the 1960s. Relative to criminal law, one of the most important was probably 18 U.S.C. § 245, which criminalized both private and public discrimination (Pub. Law 90–284, 82 Stat. 73, 1968). This statute was, in essence, another attempt to make such discrimination criminally illegal, as was done with the Civil Rights Acts of 1870 and 1871, which had been undermined by previous Supreme Court decisions.
Despite the myriad legislation and judicial decisions recognizing the inappropriateness of race as a factor for limiting a person’s rights, law enforcement agencies continued to use race as a factor. Among the most notorious examples of this is a Federal Bureau of Investigation program known as COINTELPRO. This program, along with others, resulted in the illegal surveillance and harassment of Martin Luther King and the Black Panther Party (Burnham, 1996).
Any review of race and crime in the United States must include a discussion of the death penalty. It is undisputed that in the American criminal justice system, African Americans are executed at a rate much greater than whites. Illustrative of the problem is the case of Furman v. Georgia (1972). Mark Furman, a young African American man, was charged with murder subsequent to burglarizing a home and killing the homeowner who had interrupted the burglary.
Furman, both indigent and with psychological problems, received a court-appointed lawyer, who was paid $150. Upon his conviction, Furman appealed. The U.S. Supreme Court found that the death penalty was disproportionately applied to racial minorities and overturned the conviction. Although the Furman decision did not invalidate the death penalty, it restricted its application.Within a few years, the Supreme Court, in its decision in Gregg v. Georgia (1976), added additional restrictions on the death penalty and its application to minority groups (Gregg v. Georgia, 1976; Hall, 2005).
Obviously, all the problems concerning race and the criminal justice system were not resolved in the 1960s and 1970s. The Supreme Court has repeatedly heard cases alleging racial discrimination. In the 1980s, the U.S. Supreme Court addressed the issue of exclusion of jurors on the basis of race. Even though each party (i.e., prosecutor and defendant) has the right to exercise a certain number of peremptory challenges to a juror for which a reason does not have to be given, the court ruled that it was unconstitutional to use such challenges against jurors on the basis of race (Batson v. Kentucky, 1986).
Race continued to be a troublesome issue for law enforcement in the 1990s. The Rodney King case provides a well-known example. King was arrested in 1991 and during the arrest was beaten by a number of California police officers. The officers were acquitted in state court of criminal charges. However, they were subsequently indicted in federal court for criminal civil rights violations under 18 U.S.C. § 242. Two of the officers were found guilty and sentenced to prison (Koon v. United States, 1996). The King incident highlighted what many minorities assert is the continuing unequal treatment afforded to racial minorities in the enforcement of the criminal law.
Furthermore, in the 1990s, criminal law enforcement was taken to task for the unequal enforcement in what is commonly known as the “driving while black” lawsuit (Maryland State Conference of the NAACP v. Maryland State Police, 1998). A number of law enforcement agencies engaged in the practice of racial profiling, whereby a person is be suspected of committing a crime simply on the basis of—or in part because of—his or her race. Lawsuits such as this, combined with public and political pressure, have reduced the incidence of such law enforcement practices, but they still exist.
Even today, during the early part of the 21st century, matters of race continue to plague the criminal justice system. For example, for decades the rate and extent of incarceration of racial minorities in prison have far exceeded the imprisonment rate and extent of whites.
History indisputably shows that race has been and still is a significant factor in the enforcement of the criminal law in the United States. With the Warren Court in the 1960s, significant improvements to the criminal justice system concerning its intersection with race have been made. There has been moderate, if only minimal improvement since that time, with the changing of the political environment and the U.S. Supreme Court to a more conservative perspective. As a matter of law and policy, the issue of race in the criminal justice system has witnessed positive changes, but there remains much to be done to ensure racial equality in the American criminal justice system.