U.S. Commission on Civil Rights

Unequal Justice: African Americans in the Virginia Criminal Justice System

Chapter 3

 Law Enforcement Treatment of African Americans

The law enforcement officials who participated in the factfinding meeting were Linda A. Curtis, Commonwealth's attorney for Hampton; Howard E. Gwynn, Commonwealth's attorney for Newport News; and Major Carl J. Wyche of the Hampton Police Department.[1] Curtis and Gwynn answered questions about prosecutors accountability, their discretion in the charging process, and their role in the transfer of juveniles into adult status for the purpose of trial and sentencing in district court. Wyche addressed issues covering community policing, the number and kinds of civilian complaints against police, the perspective on race, and the racial impact of drug law enforcement.

Prosecutors

Virginia's prosecutors, called Commonwealth s attorneys, are empowered under State law to bring indictments to court and in some cases initiate initial charges in criminal proceedings on behalf of local government and the people. As constitutional officers, Commonwealth s attorneys are elected to 4-year terms and are not subordinate to the State attorney general.[2] They are essentially without supervisors in the justice system. Curtis said that the election process is the avenue for evaluating Commonwealth's attorneys and holding them accountable.[3]

Reflecting a community view that the local justice system lacked accountability, community organizer Shaun Brown stated:

The legal system here reflects the authority, control, and interest of those holding political power . . . As a result of this, extralegal variables, such as your level of poverty, the color of your skin, your age, your sex, your education, and your ability to find a lawyer that will not be threatened, increases the severity of sentencing directly or indirectly here on the Peninsula.[4]

Brown s comments were a sign of frustration that accountability systems seemed not to work for citizens who have grievances against justice officials. Elected Commonwealth's attorneys, like the defense attorneys, are subject to the Code of Professional Responsibility, primarily administered by the Virginia State Bar (VBA), a mandatory bar organization that regulates conduct of all attorneys licensed to practice law in Virginia.[5] The VBA frequently receives allegations of misconduct from aggrieved persons about the actions of judges, defense attorneys, and Commonwealth's attorneys.[6] These allegations, however, result in few investigations of Commonwealth s attorneys because the VBA typically takes no action on allegations of misconduct in areas that fall within a prosecutor's discretion.[7] Although the investigations into other types of complaints have been about one per year,[8] the pace of VBA investigations quickened dramatically in 1999 with three investigations in 6 months time.[9] Notably, in July 1999, VBA settled in a case that involved Giles County s Commonwealth's attorney,[10] whose court-ordered public reprimand and assessment for court costs was the first such sanction in memory of a sitting Commonwealth's attorney.[11] Entrusted to uphold high standards among licensed practitioners, the VBA will investigate and disbar lawyers who fail to fulfill their ethical and professional obligations.[12] For Commonwealth's attorneys, however, grievance procedures leave them to conduct their offices without review of their discretionary decisions. 

According to the prosecutors, the vast majority of criminal charges come from police investigations and only a small number of charges through citizen warrants.[13] Curtis noted that her first knowledge of charges usually comes when a defendant makes an initial appearance in district court.[14] At that point, she continued:

We generally know only the defendant's name and what the charges are, and it's probably a week or 10 days later that a police report comes over that gives us substantive information about the events as to how the offenses came about, what the investigation revealed, witness statements, and all that sort of thing. So the charging decision in Hampton largely is made at the police department level.[15]

Curtis and Gwynn said that their offices use less than 5 percent of their time for charges developed without police involvement and these come through a grand jury.[16] An example of this is prosecution of public officials. Their offices do not have powers to investigate and develop evidence of criminal actions.[17] I don't have an investigative staff. I simply have lawyers who go to court, Curtis said.[18] Commonwealth s attorneys get calls from citizens who are unhappy about something, but have no ability to prosecute or to act without an investigative report, which comes through a police agency, according to Curtis.[19] 

Curtis does not see the Commonwealth's attorney as the victim's advocate.[20] She said that Commonwealth's attorneys must make an independent assessment of evidence in every case brought to their attention.[21] As prosecuting attorneys, however, they do advise victims about the dropping of charges or inappropriate penalties in cases when asked about such factors, Curtis explained.[22]

According to Curtis and Gwynn, the police department occasionally asks about possible charges before making it a formal action.[23] Usually these inquiries are by telephone call, without the Commonwealth s attorney's having a document about the suspect. The telephone conversations with police cover facts in the case, assessment of possible charges, and agreement on charges.[24] In homicide cases, police officers move to make arrests based on the prosecutor's interpretation of police information, although this happens in a very small percentage of cases.[25]

Regarding juvenile transfer to adult court, the prosecutors have unilateral power under State law to decide whether juvenile defendants should be bound over to stand trial as adults.[26] Curtis explained that the request to transfer juveniles to adult court is based on whether the person is going to be amenable to treatment within the criminal justice system and/or the severity of the offense.[27] She added age as a possible factor for consideration.[28] Mr. Gwynn was concerned about the transfer system that permits trials of 14-year-olds as adults.[29] He said:

You have a system where the majority of [Common wealth's attorneys] offices don't have African Americans in those offices, where the decisions could be unconsciously based on race just because a person making the decision has not had a full-based cultural background but does not understand, for example, that not every person who commits a crime is a criminal and should not be subjected to the full range of punishments and sanctions that the system has to offer.

I am fully aware of what the consequences are of sending juveniles to the adult system. Not only are they forever tried as adults, but we know putting a 15- or 16-year-old in the penitentiary is going to make a worse criminal than when he went in.[30]

The transfer provisions were used more frequently over the past 10 years because more juveniles were accused of serious crimes.[31] The sharpest escalation in transfers took place in 1996, after new statutes giving prosecutors more authority took effect.[32] In tracing the history of transfers and race in Virginia, University of Virginia, T.C. Williams Law School professor Robert E. Shepherd, Jr., said:

Children of color are dealt with more severely within the juvenile justice system than majority youth are. And there has been a perception that that severe treatment tends to increase as the youth penetrates more deeply into the system. . . .

 By 1991, arrests of children of color represented 46 percent of all juvenile arrests, 53 percent of the part I offenses. . . . and transfers to adult courts increased to 75 percent. Three-quarters of all youth across the Commonwealth that were transferred to be tried as adults were minority youths. . . . We started talking about why is this occurring. We discovered that it was a mix of things, and I don't think there's any question but that racism plays a part, whether its unconscious or conscious . . .[33] 

Currently, transfer is automatic for murder charges that may lead to the death penalty or for aggravated malicious wounding.[34] In cases of violent felonies, transfer is at the discretion of the prosecutor.[35] In nonviolent felonies the judge has discretion over whether to transfer a juvenile to adult court.[36]

Curtis reported that her office is not transferring juveniles to adult status at any higher rate after the new law enhanced the power of prosecutors, except in cases of murder that may lead to the death penalty and vicious physical assaults resulting in serious bodily injuries.[37] Referring to the large numbers of African American males caught up in the justice system, she denied that factors such as race enter into her decisionmaking process.[38] And, she denied that race played a part in decisions concerning juvenile transfers to circuit court.[39] Acknowledging the racial climate in Hampton, she recalled:

[Hampton] City Council appointed a unity commission 2 years ago . . . to look at the issues of dealing with race relations in the city. . . . The justice system came out in that study very poorly, and that, I'm sure doesn't surprise any of you; but what might have surprised you, was that the opinions were similar across racial lines. Clearly, if the public doesn't have confidence in our justice system, or feel that they will get a fair shake, then crimes go unreported, witnesses refuse to come to court and participate in that process, and the whole system doesn't work.[40]

Police

Several speakers complained that police officers manipulated the charging process, which put law-abiding persons into legal jeopardy and stretched evidence to inflate indictments, thereby worsening the predicament for defendants. Allegations of improper police tactics ranged from arousing fear by intrusive surveillance to violent beatings.[41] For example, Joyce Tucker of Portsmouth said that Hampton and Newport News have racist cops who have been assaulting, calling young African American males racial slurs, and concocting charges against African American males for years.[42] Citizens were virtually helpless against police misconduct, these speakers alleged.

Despite police policy against abuse, the enforcement of such standards produced few disciplinary actions. For example, of the 554 allegations of misconduct filed between 1993 and 1998 by civilians or in connection with internal police investigations against Hampton police officers, two-thirds (374 complaints) were disposed of as exonerated, unfounded, or not sustained by the police department after its internal review. In the remaining one-third of the complaints (180 allegations), substantiation of police misconduct lead to 147 disciplinary actions by the police department. Over half of the disciplinary actions taken by the police department (74 cases) referred the officer to counseling, while termination was imposed 22 times, although in 7 cases the imposed termination was reduced due to Hampton personnel policies. Of the 554 allegations of misconduct filed between 1993 and 1998, only one-third of these complaints were sustained, resulting in disciplinary actions. Of the 147 disciplinary cases, a total of 15 officers were terminated, while over half of them (74 cases) were referred to counseling (see table 2). (The Hampton City Police Division takes the position that these statistics do not warrant an inference that, while the division has adopted policies regarding the proper use of force, those policies are not enforced.)[43] 

Many speakers were skeptical of the policy against police abuse because their complaints about police misconduct seemed to have little effect on police personnel. Wyche acknowledged that police do not communicate any information about internal investigations of complaints or actions taken by the department to enforce its policies.[44] According to him, this is a source of frustration for police as well because favorable information would foster community trust.[45] He said:

See, that is one of the problems in the community at large. In other words, we send a documented letter that we did find or agree it was excessive use of force used; however, we cannot discuss what happened in terms of discipline as a result of that sustained complaint, neither can I discuss it openly to the community at large because it would be jeopardizing the suit.

So what happens is we do not have the opportunity to go to the community and say, this is what happened and this is how we resolved those particular issues, other than quoting some statistics, basically how many complaints come in, how many sustained, and what were the dispositions of those type of complaints, if asked.[46]

With regard to community policing, Wyche, who was then guiding the community policing program, said Hampton police started a community policing approach around 1988, after realizing:

Strict enforcement, or just massive arrest, does nothing unless we also treat the community. That commitment spearheaded the kind of partnerships we formed within the community.[47]

According to Wyche, community policing involves a variety of police practices that partner with community groups, civic leaders, residents, businesses, and others to come together in terms of problem resolution.[48] 

We come to an agreement through a consensus with that neighborhood, we will use informants to help identify those people who are trafficking drugs into the neighborhoods. Together we decide upon what services will be needed and what type of strategies will be enacted. That becomes our strategic [plan].[49]

Wyche stated, without citing specific numbers, that the vast majority of drug arrests in Hampton involve African American males.[50] However, he believed that racial bias by police officers was not the principal contributing factor.[51] He explained that community residents make more complaints about African Americans than whites, especially for drug crimes, although drug use between the two groups is nearly equal.[52] An underidentification of white drug users and dealers, he suggested, is the result of police responding to citizen complaints.[53] Although whites may be just as active in drug crimes, African Americans are almost exclusively among the lowest level of trafficking, the open-air drug market.[54] In most cases, these obvious drug traffickers set up shop in predominantly African American, economically disadvantaged areas of the city where they are familiar with the community and comfortable operating.[55] Uniformed police officers closer to the minority community's residents respond to tips and complaints that often involve African American drug dealers and users on the streets.[56]

Referring to the overwhelming proportion of African American males among drug arrests, Wyche cautioned that such arrest data leads to a mistaken view that drug crime and addiction are principally African American problems.[57] Crack cocaine affects whites as much as African Americans, and whites are more frequent marijuana users.[58]

A problem far more serious than police practice, Wyche pointed out, is unequal opportunity for drug addiction therapy for African Americans. African Americans seek drug treatment, but become discouraged by long waiting lists for residential services, while few whites must wait for therapy.[59] White addicts, he said, are also more likely than African American addicts to have health insurance coverage or other means of payment.[60] Newport News Commonwealth's Attorney Howard E. Gwynn concluded that the drug problem would persist despite the high human cost of drug trafficking.[61] He blamed the persistence of drug supply on two factors.[62] First, police have difficulty stopping cocaine traffic because nearly all supplies come from outside the United States.[63] The money that is available through drug trafficking makes involvement in this trade a tempting proposition. Although lower level trafficking commands a small fraction of drug profits, young African Americans risk jail because the sums of money are larger than any they might acquire otherwise.[64]