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UNITED STATES of America, Plaintiff,
v.
Edward James CLARY, Defendant.
United States District Court, E.D. Missouri, E.D.
*769 Richard Poehling, Dan Muehlmann, Asst. U.S. Attys., St. Louis, MO, for plaintiff.
Andrea Smith, Asst. Federal Public Defender, East St. Louis, IL, for defendant.
FINDINGS AND CONCLUSIONS OF LAW
CAHILL, District Judge.
Defendant Edward Clary was arrested for possession with intent to distribute 67.76 *770 grams of cocaine base. Clary pled guilty to possession with intent to distribute cocaine base ("crack cocaine"), pursuant to 21 U.S.C. § 841(b)(1)(A)(iii) (hereinafter referred to as the "crack statute"), punishable by a mandatory minimum sentence of 10 years imprisonment. Prior to sentencing, Clary, a black male, filed a motion challenging the constitutionality of the crack statute and contended, inter alia, that the sentence enhancement provisions contained in it and United States Sentencing Guidelines (U.S.S.G.) § 2D1.1 violated his equal protection rights guaranteed by the Fifth Amendment.
The Court scheduled this case for hearing on the motion for a downward departure and the motion challenging the constitutionality of the statute. After extended hearings the Court took this matter under advisement and gave it detailed and exhaustive consideration. Upon evaluating the evidence and legal arguments, the Court issues this memorandum.
Specifically, defendant Clary asserts that the penalty differential of the "100 to 1" ratio of cocaine to cocaine base[1] contained in both the crack statute and the United States Sentencing Guidelines[2] has a disproportionate impact on blacks because blacks are more likely to possess cocaine base than whites who are more likely to possess cocaine powder. Therefore, defendant's argument continues, providing longer sentences for possession of cocaine base than for the identical amount of cocaine powder treats a similarly situated defendant in a dissimilar manner, which violates his right to equal protection under the law.
THE PROBLEM BEFORE THE COURT
Before this Court are two different sentencing provisions contained within the same statute for possession and distribution of different forms of the same drug. The difference the key difference is that possession and distribution of 50 grams of crack cocaine carries the same mandatory minimum sentence of 10 years imprisonment as possession and distribution of 5000 grams of powder cocaine. Both provisions punish the same drug, but penalize crack cocaine 100 times more than powder cocaine!
Congress tells us that the rationale for this sentencing dichotomy which produces harsher punishment for involvement with crack cocaine is because it is so much more dangerous than powder cocaine. As "proof," Congress relied upon endless media accounts of crack's increased threat to society. While Congress may have had well-intentioned concerns, the Court is equally aware that this one provision, the crack statute, has been directly responsible for incarcerating nearly an entire generation of young black American men for very long periods, usually during the most productive time of their lives. Inasmuch as crack and powder cocaine are really the same drug (powder cocaine is "cooked" with baking soda for about a minute to make crack), it appears likely that race rather than conduct was the determining factor.
Although both statutory provisions purport to punish criminal activity for both crack and powder cocaine, the blacks using crack are punished with much longer sentences than whites using the same amount of powder cocaine. This disparity is so significantly disproportional that it shocks the conscience of the Court and invokes examination.
The Eighth Circuit Court of Appeals has rejected numerous constitutional challenges to the crack statute and the United States *771 Sentencing Guidelines.[3] However, the Eighth Circuit acknowledged the "extraordinary disparity in punishment between possession of cocaine powder and cocaine base." United States v. Marshall, 998 F.2d 634 (8th Cir.1993).
"With so much at stake, however, in this and other cases, we are reluctant to say that full exploration of the issues is unwarranted ... in connection with crack cocaine punishments, which continue to perplex many sentencing judges. We do not invite mere repetition of prior rejected arguments, without new facts or legal analysis." Id. at 635 fn. 2.
This Court accepts the Eighth Circuit's invitation to present a novel legal analysis of the adverse disparate impact on blacks resulting from the imposition of 21 U.S.C. § 841(b)(1)(A)(iii). Here is the Court's analysis.
CRIME AND THE LEGISLATIVE RESPONSE
Crime!! The very word connotes fear and panic, resulting in a frenzied attempt to control and curtail criminal actions in today's violence-soaked world. Never before have Americans cringed at the thought of becoming victims of random, irrational assaults; never before has the fear and frustration of average citizens grown to such a level that a "lynch mob mentality" becomes the common emotional reaction to crime.
Today there are so many senseless crimes whose gory details are displayed in living color on living room TVs in America that people, inured to the bloodshed, simply retreat in horror from the senseless details. Crime has always been an unpleasant but ever present segment of life in America, but never has it been so brutally and instantaneously reported in repetitive words and pictures from all segments of the media print, audio, and video. So whether there is more violence, as most believe, or whether the ratio is about the same but appears greater because of the larger population and visual immediacy makes little difference. There is no doubt that the public's perception is so pronounced that the public is prepared no, anxious to pay any price to control crime even to the abandonment of traditional constitutional safeguards.
The media has for years kept up a drum beat of repetitious reporting of the most horrendous criminal actions, intruding upon the grief stricken victims, interrogating them while they are in shock and tears, further enraging the public against anyone even accused of a crime. The presumption of innocence is now a legal myth.
Of especial importance is the fact that crime is no longer segregated to the other side of town. People living in the "better parts" of the community are now subject to the random anger and uncontrolled hatred of psychopaths and weak, frustrated individuals unable to cope with the problems of life. *772 When one reads of the brutal murder of elderly persons in the bedrooms of their ransacked homes, of gangland style executions and drive-by shootings, and ravishment of innocent children of tender years, it is understandable that anxious citizens demand action. Legislators, feeling the heat of the public's anger, scramble to comply with the demands of raging infernos caused by the citizens' ire.
For the last few years there has been a feeding frenzy of responses by lawmakers of every stripe and political persuasion, so that both Congress and state legislators fill the hoppers with proposed bills designed to curtail crime (each one more restrictive or Draconian than those before) in the misguided hope of reducing crime, but in the certainty that, effective or not, it will gain votes.[4]
It is true we need the relief demanded by citizens. It is true that we need firm and stern punishment for many crimes, including life imprisonment in appropriate cases. It is true that the scourges of communities saturated with drugs must be corrected. It is true that the police alone cannot correct this destructive societal force. But it is also true that we cannot continue to ignore the "root causes" of crime, such as poverty, racism, unemployment, and poor education.
It is, therefore, with concern that the Court broaches a subject which, no matter how just and fair it may be, will be seen by some as "soft on crime." No matter how onerous its penalty, and more importantly, no matter how unjust and unequal the penalties may be for one class of criminals, unthinking citizens, frustrated and afraid, say simply, "Lock 'em all up and melt the keys."
This Court favors an omnibus of remedies which include lengthy incarceration, speedy trials, and appropriately severe sentences to deter crime. Drug trafficking must be reduced and drug treatment for addicts must be made available. The biggest single factor in the elimination of drug usage, violence, and crime is JOBS. But meaningful jobs and opportunities must be available. In plain and simple terms, we must utilize both carrot and stick to eliminate the scourge of crime.
Therefore, let this be perfectly clear. This Court does not condone crime in any form or by any class or group, and is firmly convinced that, in these times especially, punishment must be severe enough and imposed with such certainty and promptness as to deter further transgression. The Court is well aware that there are individuals who must be separated from society for lengthy periods, even life imprisonment, in order to protect society. Sadly, there are youngsters for whom deterrents must be imposed early and sternly enough to change their behavior. Our society must be protected from the random and senseless violence that is so much a part of contemporary America, especially in our inner cities where most of the victims reside.
This Court recognizes that the control of crime is the most important goal of sentencing, and a firm and certain punishment must be the major goal in criminal justice. However, such punishment must be fair; it must fit the particulars of the offense and must acknowledge characteristics of individuals.
Let it be further understood that this Court would play no role in furthering the belief that drugs are to be condoned or ignored. Naturally, the greatest effectiveness would come from controlling those nearest the source of the drugs, but even the couriers and street peddlers facilitate the distribution of the deadly substances and they, too, must be punished but to a degree commensurate with their culpability.
The "100 to 1" ratio, coupled with mandatory minimum sentencing provided by federal statute, has created a situation that reeks with inhumanity and injustice. The scales of justice have been turned topsy turvy so that those masterminds, the "kingpins" of drug trafficking, escape detection, while those whose role is minimal, even trivial, are hoisted on the spears of an enraged electorate and at the pinnacle of their youth are imprisoned for years while those most responsible for the evil of the day remain free.
*773 Having clearly stated the Court's conviction that crime cannot be reduced without stern and prompt punishment as well as long range plans to reduce criminal activities, the Court now feels emboldened to express a viewpoint designed to eliminate the disproportional punishment for crack, which would enhance the credibility of the government among black citizens and help restore their faith in believing that equal justice is for all.
THE CHALLENGE TO THE COURT
The Court is faced with the task of resolving whether the crack statute violated defendant Clary's equal protection rights. The equal protection component of the Fifth Amendment Due Process clause commands that similarly situated people must be treated alike. The Court's basic understanding of this constitutional rule is that when one group of people violates the same type of laws as other people similar to them, they should be punished in the same manner.
To determine whether a law treats similarly situated people in a dissimilar manner, a violation of equal protection under the U.S. Constitution, the Court must first determine the appropriate type of judicial review to apply. Judicial review is conducted under one of three different levels of scrutiny depending upon the seriousness of the constitutional violation that triggers the review.
The Court conducts the lowest level of constitutional scrutiny, a rational basis review, to determine whether a law that causes disparate treatment among similarly situated persons serves a rational state or governmental purpose. "Equal protection does not require that all persons be dealt with identically ... [but] it does require that a distinction [that is] made have some relevance to the purpose for which the classification is made." Baxstrom v. Herold, 383 U.S. 107, 111, 86 S.Ct. 760, 763, 15 L.Ed.2d 620 (1966).
The next level of review, intermediate scrutiny, applies when the Court must determine whether the classification scheme included in the law must "fairly be viewed as furthering a substantial interest of the state." Plyler v. Doe, 457 U.S. 202, 217-18, 102 S.Ct. 2382, 2395, 72 L.Ed.2d 786 (1982). "Under this standard, although a law does not involve a facially invidious classification, it will be reviewed if it gives rise to recurring constitutional difficulties." Id.
The highest form of constitutional review that the Court evokes, strict scrutiny, is mandated when the legislative classification incorporates presumptively suspect factors, such as race, or fundamental individual liberties, such as religion. In such cases, once the suspect classification is revealed, the government must prove that the classification is narrowly tailored to further a compelling government interest. For example, racist statutes which on their face and in their direct language created segregated facilities such as restrooms and drinking fountains were struck down by the United States Supreme Court under strict scrutiny.
The difficult situation that a Court must face is to determine whether a statute which is facially neutral was enacted for racial reasons and would thereby have a disparate impact on a particular racial group. Whether or not racial discrimination was involved in legislative action that resulted in a law which, although facially neutral, still has a racially disparate impact "demands a sensitive inquiry into such circumstantial evidence of intent as may be available." Arlington Heights v. Metropolitan Housing Development Corporation, 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977).
Under Arlington, the Supreme Court set forth key factors to evaluate whether a law was motivated by racial discrimination. These factors included the presence of disparate impact, the overall historical context of the legislation, the legislative history of the challenged law, and departures from the normal legislative process. Additional legal precedent has provided the Court with more criteria for its review, such as foreseeability of the consequences of the legislation; however, Arlington provides the Court with the major benchmark to discover the presence of racial influence in the legislative decision making process.
These various levels of constitutional review evolved as a response to the manner in which racism in America has manifested itself *774 within the legal system. Overt racism, evidenced by such occurrences as "Jim Crow Laws," allowed legislators to enact racist laws without reprisals. As civil rights for all Americans became a reality, continued attempts to maintain racial barriers took on the form of more subtle, covert, facially neutral legislation. Examples of this type of legislation included zoning, voting and housing laws.
Today most legislation would not contain overtly racist referrals and, indeed, would eliminate the slightest allusion to racial factors in the words of the legislation itself. But today, despite the fact that a law may be racially neutral on its face, there still may be factors derived from unconscious racism that affect and infiltrate the legislative result.
A HISTORY OF RACISM IN CRIMINAL PUNISHMENT
That black people have been punished more severely for violating the same law as whites is not a new phenomenon. A dual system of criminal punishment based on racial discrimination can be traced back to the time of slavery.[5] In order to understand the role that racism has played in enacting the penalty enhancement for using crack cocaine, one must first take note of America's history of racially tainted criminal laws, particularly drug laws. Race has often served as a significant contributing factor to the enhancement of penalties for crime.
Early in our nation's history, legislatures were motivated by racial discrimination to differentiate between crimes committed by whites and crimes committed by blacks. For example, "An Act Against Stealing Hogs"[6] provided a penalty of 25 lashes on a bare back or a 10 pound fine for white offenders, while nonwhites (slave and free) would receive 39 lashes, with no chance of paying a fine to avoid the whipping. In 1697, Pennsylvania passed death sentence legislation for black men who raped white women[7] and castrated them for attempted rape. White men who committed the same offense would be fined, whipped, or imprisoned for one year.[8]
During Reconstruction, Southern legislatures sought to maintain control of freed slaves by passing criminal laws directed at blacks that treated petty crimes as serious offenses. A Georgia law passed in 1875 made hog stealing a felony. A Missouri "pig law" defined the theft of property worth more than $10 as grand larceny and provided for punishment of up to five years of hard labor. As a result, Southern prisons swelled and became, for the first time, predominantly black. The prison population in Georgia alone tripled within two years.
Prior to the civil rights era, Congress repeatedly imposed severe criminal sanctions on addictive substances once they became popular with minorities.[9] Historically, a consortium of reactionary media and a subsequently inflamed constituency have combined to influence Congress to impose more severe criminal sanctions for use of narcotics once they became popular with minorities.
*775 Media accounts[10] and inaccurate data influenced public opinion about opium smoking. "Ambivalence and outright hostility" toward Chinese coupled with the concern that opium smoking was spreading to the upper classes,[11] provided the foundation for the passage of the 1909 Smoking Opium Exclusion Act. "Yellow Peril" was a term used in the years between the Great Wars to express the fear that the huge population of the Far East posed a military threat to the West. This fear induced an aversion to the opium usage believed to be prevalent in Chinese communities and foisted anti-opium legislation.
The Harrison Act of 1914, the first federal law to prohibit distribution of cocaine and heroin, was passed on the heels of overblown media accounts depicting heroin-addicted black prostitutes and criminals in the cities.[12] The author of the Act, Representative Francis Harrison, moved to include coca leaves in the bill "since [the leaves] make Coca-Cola and Pepsi-Cola and all those things are sold to Negroes all over the South."[13] At one point the bill appeared to be facing defeat until Dr. Hamilton Wright, the American delegate to the Hague Opium Conference, 1911-1912, submitted an official report in which he warned Congress of the drug crazed blacks in the South whose drug habits "threaten[ed] to creep into the higher social ranks of the country" [emphasis added].[14] The images of narcotics and a black rebellion in the South and images of black addicts involved with white women were central to the hysteria that motivated legislative enactments.[15] His report, amplified and personalized by the news media and photographs, helped to shape public opinion regardless of the factual basis. True or not, the black addict became a stereotype not synonymous with most black men.
The Marijuana Tax Act was signed into law on August 2, 1937, after a successful media campaign orchestrated by Harry J. Anslinger,[16] then the Commissioner of the Treasury Department's Bureau of Narcotics. Using the media as his forum, Anslinger graphically depicted the alleged insane violence which he alleged resulted from marijuana use.[17]
In later decades cocaine became associated with exotic groups such as Hollywood entertainers and jazz musicians. It earned the moniker of the "rich man's drug." In the early 1960s and 1970s, cocaine began to move into mainstream society, and became the "drug of the eighties." Even with the widespread use of powder cocaine, no new drug laws were enacted to further criminalize or penalize cocaine possession. The "war on drugs" with respect to powder cocaine was concentrated on impeding international import of the drug or targeted large scale financiers. The social history is clear that so long as cocaine powder was a popular amusement among young, white professionals, law enforcement policy prohibiting cocaine was weakly enforced.
Almost every major drug has been, at various times in America's history, treated as a threat to the survival of America by some *776 minority segment of society. Panic based on media reports which incited racial fears has been used historically in this country as the catalyst for generating racially biased legislation. The association of illicit drug use with minorities and the threat of it "spreading to the higher ranks" is disturbingly similar to the events which culminated in the "100 to 1" ratio enhancement in the crack statute.[18]
RACISM IN TRANSITION
The mid-1860s marked the eve of the demise of slavery. In both the urban North and South, blacks and whites lived side by side but in segregated arrangements. Free blacks were prohibited from using many public conveniences and conveyances. Blacks were systematically segregated. "Jim Crow" laws, a Northern creation, moved South.
Blacks in the North were made painfully aware of white supremacy and black inferiority. Although blacks had token freedom, white constituencies firmly believed that blacks were intellectually, politically, socially, and physically incapable of assimilating into the white mainstream. Even Abraham Lincoln made a clearly politically expedient statement in 1858 when he said:
"I will say then that I am not, nor ever have been in favor of bringing about in any way the social and political equality of the white and black races [applause] that I am not nor ever have been in favor of making voters or jurors of negroes, nor of qualifying them to hold office, nor to intermarry with white people, and I will say in addition to this that there is a physical difference between the black and white races which I believe will for ever forbid the two races living together on terms of social and political equality. And inasmuch as they cannot so live, while they do remain together there must be the position of superior and inferior, and I as much as any other man am in favor of having the superior position assigned to the white race." Woodward, C. Vann, The Strange Career of Jim Crow, p. 21.
It would, of course, be unimaginable for a politician today to make such statements. In the context of what was necessary to solicit political support in 1858, utterances like these were comparatively mild. But today or yesterday, Lincoln's speech would, nonetheless, have a harmful impact upon blacks and is a good example of the effect of "unconscious racism" in his day.
In the anarchy that followed the Civil War, whites became hysterical that blacks would seek insurrectional revenge. As freedmen roamed the countryside and congregated in towns, white reactionary frenzy increasingly put pressure on the federal government to respond.[19] In 1865 President Johnson passed the notorious Black Codes, "intended to establish systems of peonage or apprenticeship resembling slavery." Id. at 23. Until the late 1940s, America solidly entrenched institutionally racist laws and forms of behavior into the social fabric of the country.
In 1945, the legal codes of many states openly discriminated against blacks, denying them the freedom to compete for and enjoy the good things of American life. But around 1950, many of these laws began to be struck down by the federal courts in a series of decisions leading up to Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). Those decisions, however, did not automatically end segregation nor did they move blacks from a position of legal inferiority to one of equality. The legacy of years of slavery and second class citizenship in the wake of emancipation could not be so easily eliminated.
*777 The 1960s were years of great turmoil in America. The assassinations of President John F. Kennedy, Robert Kennedy, and Dr. Martin Luther King left an indelible mark in our nation's history. The civil rights struggle epitomized the inherent principles of American justice and thus provided the moral high ground to those advocating respect for human dignity for all men black and white alike. It was slowly becoming politically correct and morally right to espouse acceptance of blacks into the American mainstream. Overt discrimination was no longer in vogue and could not be publicly displayed. To accept blacks into hitherto closed areas of society was in style. But for many the years of segregation left their mark so discrimination, unconscious though it may have been, still lived.
During the 1970s, victories of the civil rights battles had brought new hopes and heightened expectations to many residents of the inner cities. They then saw the opening wedge of success, at least by a few talented individuals who were entering mainstream America and achieving financial, political, and professional success. The dismal days of "American apartheid" or segregation appeared to be over; public accommodations were opening, albeit grudgingly in some instances, and a new day had begun for the forgotten and poor. Retrenchment set in. Challenges to affirmative action programs were being heard everywhere. While employment was available to the educated and trained, there were fewer menial jobs available. The great reduction in pay for jobs in service industries such as restaurants and labor pools in contrast to factories and assembly lines made such employment only suitable for students or retirees.
IMPACT OF THE 80s.
The 1980s were times of cataclysmic economic change in America. The smoke-stack industries which furnished considerable highly paid employment to many persons with limited formal education were dead, dying, or moving elsewhere. The major corporations were retreading and making more products with more machines but fewer humans, and finally, a pervasive opinion grew that government had to curtail spending for the poor in order to reduce its own budget deficit. Even the grants of the "military-industrial" complex were affected. Local and state governments were getting less and less money returned by the federal government, and therefore most community projects such as hospitals, playgrounds, emergency shelters, and food pantries were closed. Unemployment reached levels as high as 8 percent nationally but in the inner cities it hovered around 20 percent and in some cases soared to levels of 50 to 60 percent for young black men.[20]
The 80s found many communities bereft of the assistance from institutions financed by the federal government, and with virtually no employment, many young residents of the inner cities lost hope and motivation. In their anger and frustration they turned to the most visible source of immediate financial reward drug traffic. Because there were so few employment opportunities otherwise available, and because the immense drug market offered huge profits immediately, many persons were attracted to it. This, in turn, brought competition, and in the absence of regulation (usually enforced by government), turf competition developed which led to more and more gang wars in which the use of military type firearms flourished. Desperate to maintain their share of the obscenely lucrative profits from drug peddling, the gangs became more aggressive and exhibited little sympathy for bystanders caught in the crossfire. It must be noted that in the early years of the drug war few paid attention to the escalating violence among these competing gangs because they were then only killing each other or an occasional hapless victim who lived nearby. The media rarely did more than mention the victims who lived in the inner cities. It was only when suburbanites and European tourists became targets of these desperados that the government responded. Then did much of law enforcement concentrate on "controlling crime," mainly by keeping it boxed up in the ghettos.
Acrimonious relations began to grow in many communities, and a tendency simply to *778 contain the crime in a designated area rather than to try to eliminate it began to form. Highways and fences were used to segregate the troubled zones, and police tried to isolate the residents of inner cities, many times by unjustified harassment and unfair arrests. In a recent 1987 incident, the residents of East St. Louis, Illinois, were blocked from crossing the bridge across the Mississippi River to prevent their attendance at the St. Louis Fourth of July celebration until then Chief U.S. District Judge John F. Nangle, E.D. Missouri, ordered the police department to remove the barriers.
In the mid-1980s a sea change of attitudes toward crime itself had coalesced in America. Prior to this era, the predominant view was that crime was caused by deprivation or neglect and that rehabilitation was the main goal of incarceration. When the media (both press and electronic) became able to reveal instantaneously to the entire world graphic details of any crime occurring anywhere in this nation, the general public became aroused and angered as never before. The repetition of the stories on TV, cable, newspaper, and magazines, fanned the flames of anger into an inferno of fiery frenzy. This anger resulted in town hall meetings, TV crime dramas, pitiful photographs, all generating even more notoriety relating to crime and criminals. Most important of all, those parts of a neighborhood believed to be immune to the spread of crime now found that the plague was spreading, first to the edges of the inner cities and then to the affluent suburbs and even to the distant rural towns and villages.
In assessing judgment and determining fault, all facets of the circumstances must be known and weighed. Picture a city where it is easier to buy cocaine than it is to purchase a loaf of bread.[21] Imagine a town that discourages those who could be role models by denying them mortgages and loans to improve their homes.[22] Think of a community where mothers, barely more than children themselves, serve as one-parent heads of households in a world without fathers.[23] Consider a neighborhood without effective leaders because they all have fled to suburbia. Contemplate the facts that markets and malls are nonexistent; dilapidated buildings serve as hideaways for prostitutes and drug dens; sales bulletins, catalogs, and coupons are never delivered to residents because of their mailing zip codes, thus eliminating opportunities for discounts and lower prices. Remember the children who rarely see a doctor, lawyer, or teacher as a neighbor and whose only source of inspiration is a chain bedecked drug peddler.
These portraits of misery and degradation are the daily world of the inner city resident and are all, part and parcel, products of unconscious racism. Is it any wonder that there is no motivation, no happiness, no hope? It is not strange to recognize that with such misery surrounding them they have lost the ambition to work and to fight, but only await the inevitable death. The terror of long prison terms has little deterrence for them their life is already a prison of despair.
It has been only a little over 30 years since the "legislative prohibition of racial discrimination in major domains of national life." McClesky v. Kemp, 481 U.S. 279, 344, 107 S.Ct. 1756, 1794, 95 L.Ed.2d 262 (Brennan, J. dissenting). Although moderate strides have been taken, we cannot fool ourselves into believing that our decisions are free from the influences of this country's legacy of racial subordination and discrimination. If we deny the influences of the vestiges of racism, we will "remain imprisoned by the past." Id.
UNCONSCIOUS RACISM
Thus, the root of racism has been implanted in our collective unconscious and has biased the ideas that Americans accept about *779 the significance of race.[24] Racism goes beyond prejudicial discrimination and bigotry. It arises from outlooks, stereotypes, and fears of which we are vastly unaware. Our historical experience has made racism an integral part of our culture even though society has more recently embraced an ideal that rejects racism as immoral. When an individual experiences conflict between racist ideas and the social ethic that condemns those ideas, the mind excludes his racism from his awareness.[25]
Conjointly, the root of unconscious racism can be found in the latent psyches of white Americans that were inundated for centuries with myths and fallacies of their superiority over the black race. So deeply embedded are these ideas, that their acceptance and socialization from generation to generation have become a mere routine.
Unconscious racism existed in some limited form during slavery. As outright discrimination against blacks became increasingly politically and socially unacceptable, and, in 1954, in some measure illegal, racist actions metamorphized into more subtle forms of discrimination. As more well-educated blacks flowed into America's mainstream, whites even began to differentiate between the kind of blacks who reflected white values and who were not like "those other" blacks akin to the inner city stereotype.
A benign neglect for the harmful impact or fallout upon the black community that might ensue from decisions made by the white community for the "greater good" of society has replaced intentional discrimination. In the "enlightened and politically correct 90s," whites have become indignant at the suggestion that they harbor any ill-will towards blacks or retain any vestiges of racism. After all, they have black friends. They work with black people every day. They enjoy black entertainers on their favorite television programs every night.
Similarly, police and law enforcement authorities responded that they were also protecting black neighborhoods and black citizens from the scourges of crime and drugs by using harsh "get tough" laws to arrest crack dealers and other criminal perpetrators who lurked in the ghetto. Therefore, the logic continued, it really did not matter what happened to those blacks who did not fit the mold as long as white America was kept protected and safe from them. Hardly any law or measure was too harsh to deal with them, including the crack statute.
When counsel first argued that overt racism was really the basis for the discriminatory crack penalties, this Court rejected that approach out-of-hand, for the Court did not believe that such outrageous and outmoded ideas would affect the legislators of this day and age. But upon reflection, the Court recognizes that while intentional discrimination is unlikely today, unconscious feelings of difference and superiority still live on even in well-intentioned minds. There is a realization that most Americans have grown beyond the evils of overt racial malice, but still have not completely shed the deeply rooted cultural bias that differentiates between "them" and "us."
The illustration of unconscious racism is patently evident in the crack cocaine statutes. Had the same type of law been applied to powder cocaine, it would have sentenced droves of young whites to prison for extended terms. Before the enactment of such a law, it would have been much more carefully and deliberately considered. After all, in these days when "toughness on crime" is a political virtue, the simplest and fairest solution *780 would have been to make the severe punishment for powder cocaine the same as for crack cocaine. But when the heavy punishment is inflicted only upon those in the weak and unpopular minority community, it is an example of benign neglect arising from unconscious racism.
Psychoanalytic theory explains the processes which govern the mind and control mental behavior as primary and secondary. The primary process, the Id, consists of wishes, desires and instincts that strive for gratification, and which occur outside of our awareness. The secondary process, the Ego, happens under conscious control and is bound by logic and reason. "The Ego is required to respect the demands of reality and to conform to ethical and moral laws."[26] The thoughts and desires generated by the Id will not reach our conscious control until screened by the Ego where they are "criticized, rejected or modified" by defense measures.[27] In the case of a conflict, the information from the Id will not pass, thereby remaining in the unconscious, or will pass by "disguising forbidden wishes and making them palatable."[28]
Racism is irrational.[29] It is socially and politically unacceptable. Because the "Ego must adapt to cultural order,"[30] ideas, attitudes, and behavior based upon racial prejudice will be repressed and relegated to the unconscious by the Ego and not allowed to pass to the conscious until they reshape or restructure to be disguised as morally and socially acceptable.[31] When an individual cannot live up to the aspirations and standards of his own conscience, he will rationalize his unexplained conflict in his emotions with a legitimate reason. Hence, racism is forced into the unconscious mind.[32] A person who feels benign toward blacks will nevertheless make decisions and take actions that will harm minorities "because of" their race and consequently create racial stereotypes.[33]
Cognitive theorists promote that "categorization" is a common source of racial stereotypes. Because too many events occur daily for the mind to address them on an individual basis, the mind categorizes experiences in order to make sense of them. The more particular the categorization of groups of people, the more likely the person is to sharply distinguish the characteristics of individuals belonging to the group. Social categories are created through assimilation, which "entails learning and internalizing preferences and evaluations."[34] Stereotyping, assimilating and internalizing occur early in life, usually from parents or television. Becoming fearful of blacks, perceiving blacks as dangerous, different or subordinate, are lessons learned and internalized completely *781 outside of our awareness, and are reinforced by the media generated stereotyping.[35]
Studies of the impact of race on white decision making nearly always explain disparate effects by focusing on negative assessments of, or undesirable outcomes for, nonwhites, rather than positive results for whites. That is, they adopt a conceptual framework in which unconscious race discrimination is triggered by stereotyping.[36]
Whites are rarely introduced to the image of blacks as criminals through direct experience; generally, the media serves to provide and promote these racial caricatures. A fearful white class afraid to encounter a black man results from never being exposed to positive images of black America.[37] Given the racially segregated nature of American economic and social life, the media has played an important role in the construction of a national image of black male youth as "the criminal"[38] in two significant respects which served to enhance penalties for crack cocaine violators: 1) generating public panic regarding crack cocaine; and 2) associating black males with crack cocaine. Ergo, the decision maker who is unaware of this selection perception that has produced his stereotype will believe that his actions are not motivated by racial prejudice.[39]
The influence of "unconscious racism" on legislative decisions has never been presented to any court in this context. Constitutional redress to racial discrimination has resulted primarily from judicial vigilance directed toward correcting overt and facially discriminatory legislation forged first by slavery and followed by continuing racial animosity toward blacks and other ethnic minorities. Remaining still is a more pernicious, albeit intangible, form of race discrimination in the individual's unconscious thoughts that influences the decision making process. As a result, "individuals ... ubiquitously attach a significance to race that is irrational and often used outside their awareness." McClesky v. Kemp, 481 U.S. 279, 332, 107 S.Ct. 1756, 1788, 95 L.Ed.2d 262 (1987) (Brennan, J. dissenting) (quoting Lawrence, The Id, The Ego and Equal Protection, infra fn. 20).
Consequently, the focus on "purposeful" discrimination is inadequate as a response to more subtle and deeply buried forms of racism.[40] In 1909, the United States Supreme Court acknowledged that "[racial] [b]ias or prejudice is such an elusive condition of the mind that it is most difficult, if not impossible, to always recognize its existence." Crawford v. United States, 212 U.S. 183, 196, 29 S.Ct. 260, 265, 53 L.Ed. 465 (1909). Eighty-three years later, Crawford holds: the inquiry to determine racial bias is still "difficult, if not impossible." Without consideration of the influences of unconscious racism, the standard of review set forth in Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) is a "crippling burden of proof." Batson v. Kentucky, 476 *782 U.S. 79, 92, 106 S.Ct. 1712, 1721, 90 L.Ed.2d 69 (1985).
The concomitant twin of racism is class oppression. Race and class bias have always worked together to reinforce systems of social control and economic distribution.[41] Arguably, most forms of overt racism have been eliminated. However, those who choose to discriminate on the basis of race find it easier to achieve the same results by basing their distinctions on class. Ergo, identification of race bias has become more complex, more divisive, and morally more problematic.
On average, blacks experience significantly worse economic conditions than whites, and historically the criminal justice system has dealt more harshly with those who are economically weak. Black people constitute a disproportionate share of persons who exist in absolute poverty. In 1990, there were 33.6 million persons in poverty in the U.S. Althoug