U.S. Commission on Civil Rights

Unequal Justice: African Americans in the Virginia Criminal Justice System

Chapter 2

Racial Overrepresentation

Arrests

Arrests are commonplace in most of the Nation's urban minority areas. Writing about African American males, Jerome E. Miller found that in 1992 on any given day in the District of Columbia, 42 percent of nonwhite adult males ages 18 to 35, were in jail, in prison, on probation/parole, out on bond, or being sought on arrest warrants.[1] A similar survey in Baltimore showed that 56 percent were under justice supervision.[2] Miller observed:

Very little of this pandemic jailing had to do with serious or violent crime. It was mostly directed at those accused of offenses against public order and other lesser offenses . . . Absent some unusual condition, in very few of these cases would a white person of moderate means, with adequate legal representation, expect to be jailed.[3]

Virginia arrests were also disproportional by race, according to information from the Virginia State Police.[4] Table 1, based on information from State police statistics for 1997, shows arrests divided into the most serious crimes, called part I felonies, and the remaining crime categories, called part II felonies. African Americans were 51 percent for part I and 40 percent for part II arrests, although African Americans were just 20 percent of Virginia's population.[5]

Arrest is the first of three stages of the administration of justice system, followed by prosecution, and sentencing, if found guilty. In each of the three stages of the administration of justice system, the involvement of African Americans tends toward overrepresentation. This tendency toward African American overrepresentation in the justice system needs to be understood at each stage of the administration of justice system because government officials use discretion at each stage that may affect the treatment of individuals.

Racial bias may enter inadvertently into (1) police decisions to arrest or release individuals, (2) Commonwealth's attorneys judgments on what charges to prosecute or drop, and (3) judicial sentencing and prison terms. Discretionary decisions influenced by subtle inadvertent racial discrimination are barriers to fairness in the administration of justice as pernicious as overt actions of racial prejudice.

Nationwide 43 of every 100 individuals arrested for felonies either did not have to face prosecution because charges against them were not pressed or their cases were dismissed outright at the first court appearance.[6] Virginia officials would like to have similar statistics, but were unable to generate such data.[7] According to James McDonough, who directs the Criminal Justice Research Center of the Virginia Department of Criminal Justice Services, Virginia police departments, Commonwealth's attorneys, courts, and correctional institutions use incompatible recordkeeping systems for tracking cases.[8] The recordkeeping systems vary in the type of information that they produce.[9] Not only is the information different for each agency, the information they collect is difficult to retrieve because agency archives are often stored in paper documents and incomplete.[10] The records of the Virginia criminal justice system are fragmented, and analysis of racial disparity across the agencies cases will require an extraordinary amount of time spent locating, compiling, and analyzing data from files across the Commonwealth.[11] This information gap means that Virginia State officials cannot generate the type of data that will foster public confidence in law enforcement by providing objective analysis of racial disparity statistics in the justice system. Deprived of critical data, the Virginia public is left to wonder about the meaning of unexplained disparity statistics. For example, in 1997, 57 percent of all arrests were whites compared with 42 percent African Americans, but whites were only 32 percent of the prison population while African Americans were 67 percent.[12]

McDonough believed that it might be necessary for some State-level office to promulgate uniform standards for recordkeeping. The standards would aim to achieve statewide standardization of criminal justice records. Standardized records could be used to address civil rights questions such as whether race is a factor in patterns of practice involving prosecutor discretion.[13] According to him, there is no Virginia agency with powers to superintend Commonwealth's attorneys, who are locally elected officials.[14] Since the Commonwealth's Attorneys Services Council (CASC) prepares newly elected Commonwealth's attorneys to run their offices with short-term courses on administrative procedures, he suggested the CASC may be in the best position to develop administrative standards for Commonwealth's attorneys, if Commonwealth's attorneys choose to develop such standards.[15] Commonwealth's attorneys have not developed a system for statewide cooperation, tending to focus on their local jurisdiction.[16]

Juvenile Crime

Donald Faggiani, senior researcher of the Criminal Justice Research Center of the Virginia Department of Criminal Justice Services (CJRC), highlighted juvenile crime, notably murder, as an alarming aspect of racial disparity in the justice system.[17] In addition, more juveniles are arrested for serious crimes at younger ages and for firearms use.[18] The peak age of juveniles arrested for murder decreased from 22 in 1984 to 19 in 1994, and juveniles were 12 percent of arrests for violent crimes in 1986 but 16 percent in 1994.[19]

Between 1986 and 1994, 439 juveniles were arrested for murder in Virginia.[20] Approximately 80 percent of the juveniles arrested were African American, 19 percent were white or Mexican American, and 1 percent Asian or Pacific Islander.[21] CJRC determined that almost 54 percent of the juveniles arrested for murder were arrested for killing an acquaintance, and firearms were used by almost 82 percent of those juveniles arrested.[22]

Of these juveniles convicted in circuit court in Virginia from 1986 through 1994, 240 were convicted of murder and 2,791 were convicted for offenses other than murder, totaling 3,031 juveniles tried in circuit court and convicted.[23] Of murder convictions, 76.3 percent were African American males and 17.9 percent were whites.[24] Among the other convictions, 68.1 percent were African American and 29.7 percent were white.[25]

Sentencing

In 1982 the Governor of Virginia appointed the Special Task Force on Sentencing in anticipation of reform that was then under study in Virginia and also a focus of debate across the Nation.[26] When the Special Task Force on Sentencing issued its final report in December 1983, it concluded that wide variations on the use of incarceration and length of prison terms for similar offenses and offenders existed across Virginia.[27] It also concluded that these variations were partially attributable to factors like the race and socioeconomic circumstances of the offender and the location of the court.[28] In 1985 the Judicial Conference of Virginia reviewed the task force's findings and decided to pursue the development of voluntary sentencing guidelines as a device to correct for unwarranted sentencing disparity.[29]

By 1989 a pilot project of the Judicial Conference produced the Virginia Sentencing Guidelines.[30] Development of the guidelines was based on analysis of the largest and most comprehensive database of its kind in the country: 33,573 felony sentences were analyzed.[31] Richard P. Kern, study director of the guidelines pilot project for the Judicial Conference, reported that voluntary compliance of sentencing guidelines significantly decreased racial disparity in sentencing.[32] More than 75 percent of sentencing in the pilot project conformed to the Virginia Sentencing Guidelines and were race neutral.[33] In 1991 the Virginia Supreme Court approved the sentencing guidelines for judicial practice everywhere in the State.[34]

Three years later, in 1994, the Virginia General Assembly passed sweeping truth-in-sentencing legislation that transformed the system by which felons are sentenced and serve prison time in the Commonwealth.[35] This legislation created a new system of sentencing guidelines and the Virginia Criminal Sentencing Commission (VCSC) to oversee it. The newly approved sentencing guidelines are still voluntary to the extent that judges must state in writing any departure reasons.[36]

Two years after the legislative action, VCSC reported that the VCSC has successfully ushered in a new era of felony sentencing in the Commonwealth. [37] These changes accomplished the aim of keeping convicted felons in prison for longer periods.

According to Richard P. Kern, who is director of the VCSC, the new sentencing guidelines system, as was the old, is designed to ensure fair and consistent punishment for felons without regard to nonlegal factors such as race, gender, and socioeconomic status.[38] The consequences of Virginia's new truth-in-sentencing system caused many African Americans to have a differing view than VCSC s. They watched with concern as increasing numbers of African American men were taken from their communities for long periods of incarceration imposed under the new guidelines.

Presuming that judges comply with this recommendation at the rate that they've shown in our other guidelines . . . we will see a significant core of black defendants who otherwise would have gone to prison, now going into this treatment program under our new guidelines.[40]

The vast majority of persons likely to be affected by this new guideline will be African American because they make up 85 percent of persons in this target group in Virginia.[41]