Co-authored by Stephen Amberg
When Associate Justice Sonia Sotomayor issued a scathing rebuke of an assistant U.S. Attorney based in San Antonio, she opened the Supreme Court's door to a discussion many of us have been having for several years all across this country.
Although concurring with her fellow Supreme Court Justices in a decision not to hear an appeal of a Texas case, Justice Sotomayor took the opportunity to remind us all of an embarrassing history of racial prejudice in our law enforcement and judicial systems, a prejudice that continues even today, "a decade into the 21st century," to quote the associate justice.
The case that drew her rare reprimand took place in a federal court in San Antonio where an African-American man was on trial for participating in a drug conspiracy. The case centered on the question of whether the man, Bongani Charles Calhoun, knew that the friend he had accompanied on a road trip, and his friend's associates, were about to engage in a drug transaction.
Assistant U.S. Attorney Sam Ponder asked Calhoun, "You've got African-Americans, you've got Hispanics, you've got a bag full of money. Does that tell you -- a light bulb doesn't go off in your head and say, This is a drug deal?"
Justice Sotomayor quoted the late 2nd Circuit Court of Appeals Judge Jerome Frank: "If government counsel in a criminal suit is allowed to inflame the jurors by irrelevantly arousing their deepest prejudices, the jury may become in his hands a lethal weapon directed against defendants who may be innocent. He should not be permitted to summon that 13th juror, prejudice."
The all too common presence of that 13th juror is obvious when we look at our nation's criminal justice system.
People of color have contact with the law enforcement and the criminal justice systems in disproportionate numbers. Well-documented patterns of racial profiling, selective enforcement of laws and stop-and-frisk policies also affect minority communities in far greater numbers than Anglo communities.
Indeed, the now 40-year-old "War on Drugs," is little more than a war on people of color. African-Americans are incarcerated for drug offenses at a rate 10 times greater than that of whites yet whites engage in drug use at a much higher rate.
Our nation's prison statistics show most clearly the role of race in our criminal justice system. In a nation where 78 percent of the population is white, 13 percent are black and 17 percent are Hispanic, our prison population profile looks very different. In 2008, Hispanic males were locked up at three times the rate of white men and black men were locked up at seven times the rate.
The policies and practices of our public school and juvenile justice systems also contribute to too many of our children being funneled out of our public schools and into the criminal and juvenile justice systems. The school-to-prison pipeline has snagged more children of color than white children. The Texas legislature has made significant strides in reversing this trend but more work is still to be done if we are to ensure that our taxpayer dollars go toward educating our children, not incarcerating them.
In her statement, joined by Associate Justice Stephen Breyer, Justice Sotomayor wrote that the comments by Prosecutor Ponder "tapped a deep and sorry vein of racial prejudice that has run through the history of criminal justice in our nation."
And she concluded, "I hope never to see a case like this again.
We hope she doesn't either.
Sahar Aziz is an associate professor of law at Texas Wesleyan University School of Law and a fellow at the Institute for Social Policy and Understanding. Stephen Amberg is an associate professor of political science at the University of Texas at San Antonio. Dr. Amberg has previously held the Fulbright Distinguished Chair in American Studies. Both are members of the board of directors of the ACLU of Texas.