by Jeff Adachi
Printed in The Recorder, September 2005.

60 years ago, a black maid named Lena Baker was tried for capital murder in Georgia. She was charged with shooting a white man who had kidnapped her and threatened her with a metal bar. Her trial, presided over by a white judge and 12 white male jurors, lasted less than four hours. The jury convicted her in less than half an hour, and she was sentenced to die in the electric chair.

Contrast Baker’s case with that of Edgar Ray Killen. Last June, Killen, a former Klansman, was convicted of killing three civil rights workers in Mississippi in 1964. The judge, who gave Killen the maximum sentence, released Killen pending appeal after he served only 6 weeks of his life sentence, said “the state had not proven that Killen was a flight risk or threat.” While six decades separate these two cases, the result in Killen’s case raises serious questions concerning the disparate outcomes for people of color under our system of justice.

Less distant in time are the cases of businesswoman Martha Stewart and rapper Lil’ Kim. While celebrities do not generally provide the best measure of what happens in our justice system, many were surprised when Martha Stewart was actually sentenced to serve 5 months in a federal prison when she was convicted of obstruction of justice, conspiracy and making false statements. The nation, however, took less notice when Lil’ Kim, who was convicted of telling a grand jury that she did not recognize two of her close friends at the scene of a crime, was convicted of perjury but acquitted of the more serious charge of obstruction of justice. Lil’ Kim didn’t fare as well as Martha, receiving a sentence of one year in a federal penitentiary.

Sentences handed down for white collar crimes also seem widely disparate from those handed down in drug and weapon cases. WorldCom Executive Scott Sullivan, who played a leading role in WorldCom’s $11 billion dollar accounting fraud and was later convicted of fraud, conspiracy and filing false reports, received a sentence of 5 years, though he faced a potential sentence of 25 years. Weldon Angelos, a 25 year Latino man, was not as lucky. He was sentenced to 55 years with no possibility of parole for a first time drug offense and possession of a gun. Martin Grass, the Rite Aid CEO who was convicted of defrauding the nation’s third-largest drugstore chain and shareholders, had his eight year sentence reduced by the judge to eliminate “disparity between Grass’ sentence and defendants sentenced for similar crimes.” Tammi Bloom was not as fortunate in seeking to reduce her sentence of 19 years for cocaine distribution after cocaine was discovered in a house her husband shared with his mistress. Her motion was denied.

The impact of race on outcomes in the criminal justices system has been the subject of great debate, particularly in the area of sentences meted out for drug offenses. Although the majority of crack users in the U.S. are white, blacks comprised 84.7 percent of those convicted on crack cocaine charges, Latinos 8.9 percent and whites 5.4 percent. Although Blacks are 12% of the U.S. population and 13% of U.S. drug users, they constitute 38% of all drug arrests and 59% of those convicted of drug offenses. When sentenced for drug offenses in state courts, whites serve an average of 27 months and blacks an average of 46 months. Black men are incarcerated at 9.6 times the rate of white men, and black women are incarcerated at 8 times the rate of white women. African-American youth are 48 times more likely to be sentenced to a juvenile facility than whites, even though white youth are 71% of the youth arrested for crimes.

These troubling statistics belie the fact that today, the existence racism in the criminal justice system is often dismissed by many in the legal profession. According to an ABA survey conducted in 1999, only 6.5% of white attorneys believed that racism exists, compared to 52.4% of black attorneys. If lawyers refuse to acknowledge the existence of racism, one wonders whether the legal profession can be trusted to correct these inequities.

Institutional racism is defined as “the collective failure of an institution to provide an appropriate and professional service to a person because of their color, culture or ethnic origin.” In Lena Baker’s case, the service she was denied was justice. The fact that she was pardoned 60 years after her execution provides some measure of justice, though it did Ms. Baker little good. However, her case should not go unnoticed, for she has joined the legacy of those who have experienced a legal system that continues to doll out bad luck to those who fall on the wrong side of the tracks.

We know that changes are coming to Pardon Applications in Canada (technically called a record suspension). Although we have no specific details about what changes to expect we know that the Public Safety Minister is looking into reversing many, if not all, of the changes that were introduced by the Previous Federal Government. For more details, feel free to visit nationalpardon.org/pardons-canada/.

Jeff Adachi is the Public Defender of the City and County of San Francisco and recently participated on a panel on Racism in the Criminal Justice System at the annual state bar conference.