Summary of the Problem:  A fair system of justice is a cornerstone of our legal system and guaranteed by our Constitution. The influence of bias and disparate treatment in this system is unacceptable, and should be guarded against through a review and evaluation of racial and ethnic disparity in federal prosecutions.

            For more than two decades, the proportion of racial and ethnic minorities entangled within the criminal justice system has grown exponentially: members of minority populations now comprise more than two-thirds of persons convicted of offenses in federal courts; and nearly three-quarters of federal prisoners are either black or Hispanic.   Decisions made by U.S. Attorneys about whom they will prosecute and the types of offenses they prioritize for enforcement can have a strong impact on this disparity.

            The bipartisan Justice Integrity Act, introduced in the 110th Congress by Sens. Biden, Cardin, Kerry, and Specter, provides a mechanism by which pilot programs would be established in ten federal districts to evaluate issues of racial and ethnic fairness in the practices of U.S. Attorney offices.  The Act is intended to develop data that will disclose whether and to what extent (a) racial and ethnic disparities are attributable to criminal justice policies and practice; (b) any policies and practices that do produce disparities are fully justified as appropriate responses to criminal behavior; and (c) disparities may be attributable in whole or in part to discrimination or unconscious bias.

Proposed Solutions:

            Legislative Changes:  Pass the Justice Integrity Act, S. 3245 and H.R. 6518 from 110^th Congress.

Jurisdiction:

            Legislative Branch:  Senate and House Judiciary Committees

Background:

            Legislative Branch:  The bill was first introduced at the end of the 110th Congress.  In the Senate, it has two Republican co-sponsors. The U.S. Sentencing Commission has indicated strong support for the legislation. In the House, where it was introduced by Rep. Cohen and  Rep. Bobby Scott, has indicated interest in holding a subcommittee hearing on the bill before the end of the session.

Potential Allies, Potential Opposition, and Public Opinion:

            Potential Allies: 

            Potential Opposition:  Sen. Sessions (R-AL) was unsupportive of the legislation before the bill's introduction because of objections raised by the Department of Justice about inserting questions of racial disparity in assessing prosecutorial decisions. The Department's position was that no racial disparity was unwarranted.  Given the recent history of law enforcement using racial profiling, and the significant discretion granted to federal prosecutors, it seems essential to study and ensure that bias and unwarranted disparity does not exist.

            Public Opinion:  According to a poll conducted by Belden, Russonello & Stewart for the ACLU, entitled Raising the Topic of Race: Analysis of a national survey on race, crime, drugs and justice, a majority of Americans believe the criminal justice system is doing a poor job of assuring fair treatment for everyone accused of a crime, regardless of income or race.  Furthermore, 58 percent of respondents believe an African American who is arrested receives worse treatment than a white person charged with the same crime.  About half believe the same is true for Hispanics.

Experts:

• Erek Barron, Sen. Biden's Judiciary Counsel
• Steve Salzburg, ABA Criminal Justice Section and George Washington University law professor
• Marc Mauer, The Sentencing Project
• Angela Jordan. Davis, ABA Criminal Justice Section and Washington College of Law at American University
• Wayne McKenzie, Vera Institute of Justice

For Further Information:

Seepage 47 of the ABA's Justice Kennedy Commission Report, http://www.abanet.org/crimjust/kennedy/JusticeKennedyCommissionReportsFinal.pdf.

Recommendations for Federal Criminal Sentencing in a Post-Booker World http://constitutionproject.org/sentencing/article.cfm?messageID=245&categoryId=7 

Principles for the Design and Reform Of Sentencing Systems: A Background Report, http://constitutionproject.org/sentencing/article.cfm?messageID=148&categoryId=7 

Mandatory Justice:  The Death Penalty Revisited, http://constitutionproject.org/pdf/mandatoryjusticerevisited.pdf