Thinking about my post from last night, I realized how strange you might think me for assuming that there’s greater risk to liberty from police and prosecutors misbehaving than there is from letting a certain number of criminals get off on “technicalities.”
Thankfully, with impeccable timing, we got this report today from the New York Times, summarizing a study by the Equal Justice Initiative, which found that African Americans continue to be unfairly excluded from Southern juries, as prosecutors use their peremptory challenges in order to try black defendants in front of all-white or nearly all-white juries.
The study’s summary states:
We identified counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service. We discovered majority-black counties where capital defendants nonetheless were tried by all-white juries. We found evidence that some prosecutors employed by state and local governments actually have been trained to exclude people on the basis of race and instructed on how to conceal their racial bias. In many cases, people of color not only have been illegally excluded but also denigrated and insulted with pretextual reasons intended to conceal racial bias.
This is just one study, of course. But it suggests something that should be a matter of common sense for everybody, but isn’t: Prosecutors and police officers are just people like you and me, with flaws and biases and selfish motivations. They want to win, or as Mark Kleiman puts it, to “carve notches in their briefcases.” It should be unsurprising that they will try to take advantage of the facts of life (e.g. many Southern whites are going to be predisposed to convict black defendants) in order to advance their careers.***
The reason we have procedural rights is because we realize (or should realize) that the people who run our criminal justice system are not angels. And we recognize (or should recognize) that a criminal justice system with strong procedural rights more closely approximates one run by angels.
The deeper assumption, of course, is that it’s better for a guilty person to go free than for an innocent person to be punished.
***A side note on the issue of racism, which we have been discussing a lot here lately…
When I say that “many Southern whites are going to be predisposed to convict black defendants,” I’m not assuming that they’re all Klansmen or even “racists” as many people seem to define that term. My claim is not that they’re all sitting there thinking “I’m going to put this black man to death no matter what the evidence says.” But they are probably informed by subtle, perhaps unconscious, racial biases and assumptions. Otherwise prosecutors wouldn’t pull stunts like those documented in the EJI study.
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