U.S. Commission on Civil Rights

Unequal Justice: African Americans in the Virginia Criminal Justice System

Chapter 1

Citizen Complaints

Many citizens believed that bias in the justice system was responsible for the unfair, harsher treatment African Americans receive. Their complaints and concerns are discussed under four headings: racial profiling, marginal fees paid to court-appointed attorneys, racial bias in sentencing, and restoration of civil rights for ex-felons.

The statement of Warthell Brown Isles illustrates the point that often issues and concerns are not neatly separable; they are intertwined. Starting with the observation, I never thought I would get to bring my case before anyone except my close friends and colleagues, [1] she offered the following summary:

Since 1984, Isles has had a criminal record that she believes was not deserved. She was arrested for forgery and expected to defend her innocence in court. Instead, she said, her attorney acted without informing her and arranged restitution payments as exchange for a plea bargain motion by prosecutors, which effectively closed the case. She fulfilled the court-ordered agreement, which stood as a conviction for petit larceny. She was surprised to be arrested and jailed, and she noted that the bank which processed the forged checks did not accuse her of criminal action. Prosecutors had applied a stereotype of African Americans as criminals and characterized her predicament without full investigation, she believed. Her attorney had represented her interests poorly and did not defend her innocence against prosecutors. She became a convicted felon in Virginia losing the right to register and vote, sit on a jury, serve as a notary public, or own a firearm.

Although she suffered deep embarrassment privately, Isles career as a health administrator progressed despite her criminal record. She owned a luxury automobile, and in 1990 a white male driver passed her suddenly at the driveway of a Hampton bank. She spoke to him about reckless driving and that led to her second brush with the law, which was brought about, she believed, because police harass African Americans in luxury cars. The aggressive driver was actually a plainclothes police officer, who checked her license plate and learned of her prior conviction. Later that day three police cars followed her closely, and she became fearful of the police. She approached them for an explanation and saw the driver she had encountered earlier. He charged her with abusive language in connection with the morning s incident. Unsuccessful in court, in part due to her prior conviction she said, she acquired a second conviction.

In 1991, Isles applied to the Governor for pardon and restoration of civil rights. Her request remains unanswered.[2]

The drug courier profile includes a stereotype of African American or Hispanic drivers in late model luxury cars, causing serious problems for law-abiding African Americans or Hispanics when they drive luxury cars such as Jaguar or Mercedes Benz. Of the four stories of traffic stops due to profiling presented to the Committee, three of the drivers owned the same brand of British-made luxury automobile. These drivers believed that their cars contributed to police noticing them, placing them under suspicion, and treating them aggressively.

Here is the story of Navy Lt. Commander Robert Lee Cobb, a Vietnam veteran and engineer trained in radar calibration. Cobb said that he had been profiled on several occasions in his British luxury car.[3] On one occasion, when he received a speeding citation from a Norfolk police officer, he decided to challenge it because, this time, his knowledge of radar made him especially dubious of the charges.[4] He followed the established complaint process and sent copies to the mayor of Norfolk.[5] As a complainant, he was unsuccessful in his protest. He believed that despite flaws in the police statement, the judge in traffic court decided in favor of the police officer in order to maintain some sense of integrity for the police in the eye of the general public.

The Norfolk Police Department's commanding officer in response to Cobb's complaint against the officer replied: 

There is insufficient evidence to support an allegation of misconduct by any member of this department at this time. Therefore, no further action will be taken.[6]

He added that because police seemed intent on using racial profiling, he and his wife were fearful that they could be the next victims of police beating or drug planting. His encounters with police were disconcerting, on one hand, because he felt a need to avoid entrapment and troubling, on the other hand, because racial profiling was an assault on his dignity. He said:

I have had police to run up along side me, look over at me, hoping that I would speed away or give them some reason to stop me. I was targeted because of the complexion of my skin. And it's not right.[7]

Joyce Hobson, activist, schoolteacher, and former president of the SWIS Legal Defense Fund, told the Committee that the community comment session created a rare opportunity for public venting of sentiments about police practices.[8] She discussed two incidents of police misconduct she experienced. In a retrospective account of the Hampton 4 case, she said: 

As for my personal harassment [by police] as spokesperson of SWIS Legal Defense Fund, it came in the following forms: verbal, written, wiretapping of my home telephone, searching of my school records, being followed by police officers, a death threat. Mind you, that these tactics have not stopped: just last week I was followed by a policeman.[9]

For several days prior to the Hampton meeting, she was followed by police patrols.[10] She believes the harassment was an attempt by the police to intimidate her.[11]

Profiling complaints were given to the Committee as examples of the justice system allowing police officers to act upon prejudicial stereotypes about African Americans. The seriousness of a traffic stop is in its potential for escalation.

As in other parts of the Nation, many low-income defendants in Virginia are African Americans. They must bear the financial costs of litigation with few available resources and, when unable to afford legal counsel, are asked by the court to accept a court-appointed attorney to represent them.

According to Virginia law, the State provides caps on fees paid to court-appointed attorneys regardless of the time spent by the attorney.[12] The general district court that tries misdemeanor charges provides $100 for attorney fees in defense of an indigent in a criminal case.[13] The circuit court tries misdemeanor and felony charges that may lead to confinement in jail or prison. Court-appointed attorney fee caps for such charges are $882 if conviction may be punishable by confinement in prison for more than 20 years, $318 for other felony charges, and $132 for misdemeanor charges punishable by confinement in jail.[14] This schedule of fees places Virginia the lowest in rank among the jurisdictions which have caps. Although Mississippi is the next lowest in rank, its $1,000 cap for court-appointed attorney fees is 10 times that for Virginia's district court and Mississippi also allows for the payment of expenses beyond the cap at the discretion of the court, not to exceed $25 per hour.[15]

Virginia attorneys affected by the caps would like changes, including proposed 20 40 percent increases supported by the Judicial Council of Virginia as well as the Virginia State Bar, the Virginia Bar Association, the Virginia Trial Lawyers Association, and additional interested organizations.[16] At a time when competent legal counsel can command $235 per hour, the $100, $132, $318, and $882 caps for court-appointed attorney compensation fall far too short by comparison.[17]

Although defense attorneys often enter into these cases for reasons of public service, the financial pressure of the State's fee caps on their livelihood makes it difficult for them to provide energetic, competent counsel for poor clients, of whom African Americans are the vast majority.[18] According to an informal survey of lawyers conducted by the Virginia College of Criminal Defense Lawyers in 1999, many court-appointed attorneys acknowledged that the time and attention they devote to various cases often relate to the amount of payment they expect, leaving indigent clients underserved.[19] Estimating the cost of business overhead at an average $35 50 per hour, the survey respondents pointed out that within 2 or 3 hours their overhead costs exceed the compensation allowed for misdemeanor charges.[20] The higher caps for attorney fees associated with felony charges also cover only a small fraction of a court-appointed attorney's costs for what are often complex lengthy trials on such charges. The potential out-of-pocket cost is a financial disincentive for court-appointed attorneys.[21] Dennis W. Dohnal, chair of the Ad Hoc Committee on Court-Appointed Counsel Fees of the Virginia State Bar, said: 

The criminal justice system in the Commonwealth of Virginia is designed to fail poor people.[22]

Most of the attorneys surveyed seldom visited the crime scene or interviewed witnesses who had not come to their offices, or used computer-assisted legal research, although they are typical steps in cases for retained clients.[23] The attorneys were so affected by the potential financial loss associated with appointed cases that they seldom took time to examine information about prospective jurors prior to jury selection, although this could be readily done in a visit to the clerk of the court, and could be beneficial for their indigent client.[24]

The public attitude about this issue was expressed by Frederick Carter, who was in the audience during the community comment session of the Committee's factfinding meeting:

Unless you are charged with a capital offense, $100 is what the [court-appointed] attorney is forced to work with . . . they do not even give money for investigation. And often, hiring an investigator is critical to get the facts. That could be an innocent man whose whole life gets put on hold for a year.[25]

Supporting the principle of court-appointed counsel, however, Carter stated that society has a moral duty to protect innocent persons from imprisonment.[26] Not only are current fee caps woefully inadequate for a fully developed defense in court, but indigent African Americans are going to jail at a cost to taxpayers of $20,000 per year who might have been acquitted if they had enough to pay private counsel.[27]

Four speakers complained of racial discrimination by judges. A Hampton Jail inmate, Hubert James, who participated in the community comment session by mail, asserted that the judge in his trial was:

prejudiced against blacks and long-hairdo hippie types and minorities that appear before him. . . .  He is quicker to sentence blacks and minorities with stiffer and more severe sentences . . . when dealing with whites, he suspends and reinstates or places them in drug programs, returning them back to society.[28]

Similarly, Troussant D. Lett wrote from his cell in the Williamsburg-James City Jail that he had encountered two circuit court judges who delivered racially biased treatment and harassment from the bench.[29] He charged that his formal complaints against the sitting judges were dismissed by the Judicial Inquiry and Review Commission (JIRC) without an investigation.[30]

Murray L. Steinberg of Richmond, president of the Family Resolution Council, also complained about judicial bias, claiming not racial prejudice but bias against the cause of fathers rights.[31] He was not an inmate although he had been jailed three times.[32] The jail stays lasted up to 60 days as punishment for tardiness under the terms of a child visitation schedule that a divorce court ordered him to follow as the noncustodial parent.[33] This fathers rights advocate had filed two complaints with the JIRC, alleging judicial bias.[34] Reporting that both complaints were dismissed, he said about the process:

The Judicial Inquiry and Review Commission (JIRC) . . . has recommended a judge be removed only three times in 26 years. Only five times has the JIRC recommended a judge be censured. Either we have had the best judges in the country or the worst system of review.[35]

Mr. Steinberg, though not a lawyer by training, became familiar with legal forms through reading the law and filed actions in district and Federal courts in his causes.[36] In response to one such action, an opposing attorney complained to the Virginia Bar Association (VBA).[37] This complaint led to legal action by the VBA and the Virginia Attorney General, which brought Steinberg a conviction on charges of unauthorized practice of law.[38] He summed his view saying, We have a system of foxes guarding the fox house. [39]

Restoration of Civil Rights for Ex-felons

Changes in law enforcement policy, drug markets, and violent crime increased the pressure for incarcerations in the mid-1980s and 1990s.[49]  Accordingly, the composition of prison populations also shifted during the period to become heavily composed of minorities, and disproportionately African American.[50] The Sentencing Project, a Washington, D.C., based research group, reported that 51 percent of State and Federal prison populations is African American and 15 percent Hispanic (of any race), with 90 percent of the total prison population being confined in State institutions.[51] In 12 States and the District of Columbia, African Americans were incarcerated at a rate more than 10 times that of whites.[52] Virginia is one of 38 States and the District of Columbia in which racial disparity in the rate of incarceration has worsened since 1988.[53] For example, the black-white ratio nationwide was 6.88 in 1988, increasing to 7.66 in 1994, whereas this ratio in Virginia was 6.38 in 1988, lower than the national average, but increased to 8.16 in 1994, far exceeding the national average of 7.66.[54]

Unlike in most other States, Virginia does not restore voting and other civil rights to ex-felons upon their return to society.[55] Whenever convicts are released from prison custody, they receive a pamphlet from the Secretary of the Commonwealth (SOC) advising them of their status:

If you have ever been convicted of a felony in Virginia or elsewhere, you may not vote, hold public office, or serve on a jury in Virginia. Likewise, you have lost the right to serve as a Notary Public. There is usually only one way to have your voting and other civil rights restored and that is by an act of the Governor of Virginia.[56]

There were 11 former felons at the community comment sessions of the factfinding meeting who had applied and were waiting to hear from the Governor about regaining their rights denied to them under State law.[57] One petitioner was still waiting after 10 years of no response from the Governor's office, another for 8. They had no choice but to interpret the unanswered applications as tantamount to denial. Without feedback, these petitioners had no way of knowing the strength or weakness of their pleas. They felt strongly that they were owed a response or an explanation from the Governor's office or its designee.

Eldora G. James believed she had strong reasons for the Governor to grant clemency to her son, Delano Graves, then an inmate at the Nottoway Prison and a former Norfolk State football player.[58] She was seeking pardon for medical reasons.[59] Her son, who was serving a 101-year sentence, had been beaten and harassed from the first days of his incarceration, she said.[60] After a squabble began on the prison basketball court, a gang of inmates descended on Graves with a baseball bat, and he sustained a brutal beating.[61] His injuries were so severe and medical attention so limited that he now has the mental capacity of a 5-year-old.[62] Prison medical staff predicted that another blow to the head would kill her son.[63] Ms. James is fearful and desperately pleaded to the Governor for her son s removal from prison, but received no response. Although the treatment she received is hardly different from that of others seeking clemency, she wondered nonetheless why government officials displayed such insensitivity.[64]

Regarding the process of applications for civil rights restoration, the Committee learned that applicants pleas for pardon are first screened by the Governor s office, and then investigated by the SOC, who upon investigation refers them to the Governor.[65] Once with the Governor, there are no procedures or time restraints that the Governor must follow.[66] Applications that the Governor approves go back to the SOC for further processing.[67] That office notifies the applicants and maintains permanent records of all restorations that serve as the official source for status inquiries.[68] For example, voter registrars contact the SOC before allowing anyone with a criminal record to register.[69]

Disenfranchisement of former felons is widespread in Virginia. The prison population was 30,380 inmates in 1998.[70] In the previous year 10,072 inmates left prison and returned to society.[71] The SOC began keeping computerized files in 1985, and a total of 32,500 requests for pardon have been received since then.[72] This represented an average 2,500 applications per year. Only 7.5 percent of all the applications for pardon (4,741 restorations out of 62,500 over the past 25 years) have been granted.[73]

Once lost, the right to vote is difficult to regain through a restoration process that is time consuming and rarely successful. Concerned about this extensive disenfranchisement and its political consequences, Virginia State Senator W. Henry Maxwell, who represented Hampton and Newport News, estimated that 245,000 Virginians cannot vote because of criminal convictions and 60 percent of them (145,000) are African American males.[74] He pointed out that the justice system has a profound impact on African American political rights.[75] With a large portion of its community unable to vote because of criminal records, the political strength of African Americans, he believed, was being sapped to a degree which was once the result of racist poll taxes and Jim Crow laws. He observed:

One in three African American males between the ages of 20 and 29 is in prison or under court supervision [in Virginia] . . . and such overrepresentation increases at each stage in the criminal justice system.[76]

Reflecting on the high rate of incarceration of African Americans, which had devastating effects on the jailed individuals and their communities, Virginia State Senator Maxwell restated the conclusion of the Sentencing Project:

[As] prison becomes a common experience for young males, its stigmatizing effect is diminished and current crime control policies may actually be increasing the severity of the problem.[77]

Dismayed that so many young African Americans will spend prime years of their lives in prison, Virginia State Senator Maxwell believes the challenge before society is to understand the socioeconomic dynamic involved in the current crisis, its political component, and defend the next generation against an intergenerational cycle of criminal influences and political disconnection.[78]

Carrying this concern into the Virginia General Assembly, Virginia State Senator Maxwell cosponsored legislation creating the Joint Subcommittee Studying the Status and Needs of African-American Males in Virginia (Joint Subcommittee).[79] The Joint Subcommittee was established by the 1996 General Assembly and was continued each year to the present.[80] Its wide-ranging mandate includes review and assessment of historical, cultural, socioeconomic, familial, psychological, and political dynamics, as well as the effects of stereotyping on the African American community and society's image of African American males in the media.[81] Through a series of studies, the Joint Subcommittee intends to examine health problems, high school graduation rates, advanced instruction in secondary schools and higher education, standardized educational testing, employment opportunity, economic independence, and family violence as these affect African American males in Virginia.[82] Regarding the justice system, the Joint Subcommittee's goal is to:

establish a demographic profile of African American males in Virginia, including their representation in state and Federal correctional facilities. . . . Compare the status of African American males in Virginia to white, Asian, and Hispanic males; and provide a comprehensive evaluation of the status and needs of African American males in Virginia, and recommend appropriate and feasible alternatives [to assist them].[83]

On November 10, 1998, the Joint Subcommittee convened a statewide symposium on criminal justice, Justice Without Race: Building a New Consensus. [84] Among a spate of proposed legislation resulting from the Joint Subcommittee s briefings and meetings is H.J.R. 605, a proposal to study the voting rights of felons.[85] The bill was supported by the subcommittee during the 1999 session.[86] While most legislative proposals arising from the Joint Subcommittee's effort have not been enacted, a recent bill geared to curbing racial profiling by police passed out of the subcommittee in 1999.[87]  The measure established a joint committee to study traffic stops of minority drivers and certain other police practices.[88]

Representative Robert C. Bobby Scott, Jr., whose congressional district covers much of the Peninsula, talked about economic justice, the war on drugs, its racial aspect and heavy societal costs.[89]

Representative Scott said that there was too little relief for underemployed and unemployed persons, ill-housed and homeless families, and undereducated and unschooled youth.[90] Regarding the administration of justice, he was critical of the Virginia General Assembly for passing legislation that required convicted felons to serve at least 85 percent of their sentences before release, abolished parole, and imposed mandatory life sentences for third-time felons.[91] This so-called truth in sentencing policy, he believed, is swelling prisons with low-income people and diverts resources needed to address difficult social problems.[92] He urged Virginians to reorder their priorities and direct resources to economic issues that would alleviate some of the financial pressures on poor and moderate-income families.[93] Helping persons at the bottom of the economic ladder will bring them greater access to a living wage, especially for African Americans, and lessen the temptation to engage in criminal behavior to alleviate poverty.[94]

Representative Scott recalled that in 1986 and 1988, as a result of congressional legislation, the Federal criminal code provides inordinate penalties for first-offense cocaine trafficking, penalizing offenders for possession of 5 grams of crack cocaine the same as possession of 500 grams of the powder form:[95] (a) 5-year mandatory minimum penalty for possession of 5 grams or more of crack cocaine or 500 grams or more of powder cocaine; (b) 10-year mandatory minimum penalty for possession of 50 grams or more of crack cocaine or 5,000 grams of powder cocaine.[96] An overcriminalization of crack cocaine in the war on drugs has been an unmitigated disaster for young African Americans. This group is almost exclusively among the prisoners rounded up in police sweeps of open-air crack cocaine markets.[97] These captives in the war on drugs seldom include whites, who tend to conduct their illicit trade behind closed doors, inconspicuous to police and passersby.[98]

According to Representative Scott, a ranking member of the House Judiciary Committee, the Congress was aware that the crack-powder sentencing disparity would overburden low-income African Americans, but was unmoved by all arguments against the measures. Nor was it ready to take advice from the congressionally established U.S. Sentencing Commission, which concluded:

While some aspects of crack cocaine use and distribution suggest that a higher penalty for crack offenses compared to powder cocaine offenses is appropriate, the present 100-to-1 quantity ratio is too great. . . .[99]

Representative Scott observed that increasing numbers of African Americans come under criminal justice supervision as a result of drug offenses.[100] There was, however, little understanding of the drug distribution process into which these individuals become involved.[101] A recent study of young men who were involved in the Washington, D.C., drug trade provided an insight into the allure of drug trafficking.[102] Researchers found, somewhat surprisingly, that two-thirds of the offenders had been employed at the time of arrest, primarily at low-wage jobs with a median income of $800 a month.[103] Drug dealing became a type of moonlighting for some of these young men, with the daily sellers achieving median earnings of $2,000 a month in drug sales.[104] A lack of viable options to escape poverty leads vulnerable and desperate persons to high risk taking and disastrous misjudgment of the effects of illegal activity and jail on their lives.