As has been widely reported, on any given day, almost one in three black men between the ages of 20-29 are in prison or jail or on probation or parole. The statistics in California, where the Armstrong prosecution arose, are even more disturbing. Earlier this month, a study by the Center on Juvenile and Criminal Justice found that nearly 40 percent of African American men in their twenties in California are under some from of criminal justice control. This compares to only 5 percent among white males of the same age. Charges of racial bias by civil rights advocates, criminal defense attorneys and social scientists are typically met with strong denials from law enforcement officials and prosecutors, who argue that these disparities are the unfortunate but inevitable function not of discrimination, but of the higher crime rate in the inner cities.
Prosecutors have enormous discretion in deciding whom to prosecute.
If the race of a suspect, in fact, influences the charging decision, then the whole process is vulnerable to constitutional attack. If Armstrong were convicted under federal law, he would face a 10-year mandatory sentence. If prosecuted under state law, the same defendant could receive as little as jail time and probation. In Los Angeles, where the Armstrong litigation arose, not a single white offender has been convicted of a crack cocaine offense in the federal courts since 1986, when Congress enacted stiff new penalties. Between 1990 and 1992, over 200 white crack dealers were prosecuted by the state authorities in Los Angeles, a period during which the federal authorities prosecuted not one white defendant for crack.