Judge Pamela Alexander served as a District Court Judge in Minnesota for nearly a quarter century. She presently serves as the President of the Council on Crime and Justice. The Council is a nonprofit organization whose mission is to build community capacity to address the causes and consequences of crime and violence through research, demonstration and advocacy.

Minnesota Justice Monthly

Frederick Douglass’ assessment of the significance of race in the criminal justice system made more than a century ago is still appropriate today. Although there is much discussion and occasional celebration of racial progress in many aspects of American life, the same cannot be said concerning racial progress in the American criminal justice system. At our 2011 Minnesota Justice Forum, we learned that there is still much work to be done.

In order to look towards solutions to the problem of race in the criminal justice system, we must first look to history to explain why we are now in the state we are in and what we must do to change it.

Prior to the framing of the U. S. Constitution slavery of people of African descent had been in existence for over 100 years in the United States. It was not until 1865 when the 13

th Amendment to the Constitution was added abolishing slavery that African Americans equaled one full person rather than the 3/5’s as compromised in the Constitution. When the Founding Fathers uttered the words “We hold these truths to be self-evident that all men are created equal.” They did not include Blacks or Native Americans in that pronouncement. In virtually all of the court cases decided beginning with the early colonial period to the Civil War, blacks were the subject of much litigation but were never parties to that litigation because of their status as property subject to ownership by others. Native Americans were not considered citizens as well and thus did not have full access to the American Judicial system either.

American “due process” never applied to Blacks in this country until after the Civil War. Numerous conflicts arose because of this anomaly, the most famous and well known case being that of Dred Scott. This is of significance to Minnesota because he actually ran as far as the Minnesota territory before he was returned to his owner. After Dred Scott it became clear that Blacks and Native Americans were not considered “citizens” of the United States and therefore not protected by the Constitution. The debate continued on and eventually culminated in the Civil War and the Emancipation Proclamation officially ending slavery and preserving the union of the United States. However, the political view and the legal status of now “free” Blacks really changed very little. Post reconstruction era segregation laws called the “Black Codes” were established curtailing the ability of Blacks and other people of color to become full citizens in this country.

Segregation took a toll on America for years to come and most of those disputes ended up in Court. Congress eventually nullified the Black Codes with a series of Civil Rights Acts and the 14

th and 15th Amendments to the Constitution but the effect went on for years with some vestiges still today. The Courts for years have tried to overcome the historical legacy of racism and inferiority through litigation and legal interpretation.

Frederick Douglas said in 1862:

Race and the Criminal Justice System.

It is not a new phenomenon that people of color have been more severely punished for violating the same law as white Americans which can be traced back through history as well; I will give you a few examples:

In 1809 it was illegal to steal hogs and the punishment was as follows, whites if guilty would receive a penalty of 25 lashes or a 10 pound fine, while non-whites (slave or free) would receive 39 lashes on their bare back with no option to pay a fine.

In 1697 Pennsylvania passed death sentence legislation for a black man who raped a white woman and castrated them for attempted rape while a white man who committed the same offense would be fined, whipped or imprisoned for one year. I would note that there was no penalty for raping a Black woman.

During reconstruction, Southern legislatures sought to maintain control of freed slaves by passing criminal laws directed at blacks only. These laws turned offenses normally thought of as petty offenses into felonies and as a result, southern prisons swelled and became predominantly black for the first time. The prison population tripled in Georgia within a two year time frame because of these new laws.

The Harrison Act of 1914 was the first federal law to prohibit the distribution of cocaine and it was passed on the heels of overblown media accounts depicting cocaine addicted black criminals and prostitutes in the inner cities. In later years cocaine became associated with jazz musicians (black America’s only form of original music) and the penalties remained severe. It was not until the early 1960’s when cocaine became associated with Hollywood and became known as the “rich man’s drug” that these penalties were examined.

The same was true for marijuana use, while it was associated with communities of color, possession and use remained a felony but when it moved into mainstream society the penalties became less severe. Today possession of a small amount of marijuana is a petty misdemeanor while in the 40’s and 50’s many black males went to prison for possessing that same small amount.

Then we have had the 25 year debate on “crack vs. powder” cocaine which continues today with differentiated sentences for the same drug based on the perception of the user. There are literally hundreds of cases nationwide that have debated this issue and the discriminatory impact on African Americans of which I am intimately aware.

If you would like to read one of the most exhaustive and compelling analyses of race in the criminal justice system concerning issues of racial discrimination I would refer you to 101 Harvard Law Review 1472 (1988) entitled: Developments in the Law – Race and the Criminal Process.

I give you this historical backdrop to continue our discussions on racial disparities because we cannot bury our heads when it comes to facing that fact that racism still exists and sometimes finds itself inside the criminal justice system and we must be diligent in our efforts to stop it. The work and words of presenters at our Justice Forum were both heartening and clear reminders that there is still much work to be done. When we utter the famous words: “We hold these truths to be self-evident that all men (and women) are created equal.” We need to actually mean it, practice it and apply it to all.

Judge Pamela G. Alexander

President, Council on Crime and Justice