An Embarrassment to All Minnesotans:
By Thomas L. Johnson and Cheryl Widder Heilman
Racial profiling has been a hot issue in Minnesota and across
the nation in recent months. While certainly deserving of this
attention, racial profiling is only one aspect of a much larger
issue: the disproportionate number of African Americans, Latinos,
American Indians, and other minorities who are arrested, convicted,
and imprisoned by our criminal justice system.
Although racial profiling and the disparate impact of the criminal justice system on minorities are often presented as "new" issues, they aren't. Many minorities, particularly African Americans and Latinos, have long complained about disparate treatment by law enforcement and the criminal justice system generally. What is new, however, is the increase in the level of racial disparity, particularly here in Minnesota. Minnesota now has the largest disparity between black and white imprisonment rates of any state in the nation.
The demographics in Minnesota are also new. The number of American Indians, African Americans, Latinos, and other minorities has increased -- both in greater Minnesota and in the Twin Cities metropolitan area. The data now available suggest a racial disparity exists within the criminal justice system statewide -- in rural, as well as urban communities.
Finally, the level of recent attention to these issues by public policymakers is new. This is a positive development, because racial disparity is a problem with immense implications that deserve our attention and action.
This article highlights some of what we now know about the disparate numbers of American Indians, African Americans, and Latinos who are stopped, arrested, charged, convicted, and sentenced for crimes in Minnesota. It also offers examples of how the U.S. Supreme Court and the Minnesota Supreme Court have dealt with issues of race in the context of stops by police, charging decisions by prosecutors, jury trials, and sentencing.
The article is by no means exhaustive or dispositive, nor is it intended to be. The problem of racial disparity is complex. What is offered here is a beginning -- an effort to provide an overview of the various dimensions of the racial disparity issue, to spark further discussion and dialogue about what can, and should be done within our communities and our state.
Thomas L. Johnson is the president of the Council on Crime and Justice, a public policy research organization based in Minneapolis. He formerly served as Hennepin County Attorney and is of counsel with the firm of Gray Plant Mooty.
Cheryl Widder Heilman is director of the Center for Reducing Rural Violence, a program of the Council on Crime and Justice.
The authors wish to thank the Research Department of the Council on Crime and Justice and the Council's Racial Disparity Initiative for their assistance in gathering the information and ideas presented in this article.
blacks are about two and one half times more likely to be arrested
and booked than whites following a traffic stop; American Indians
about three times more likely."
Police Stops. Recent attention has focused on police
traffic stops of minority drivers. The racial profiling allegation
is that police use a minority driver's race as a factor, either
alone or in combination, in determining which vehicles to stop.
Arrests. The data from Minneapolis also showed that
minorities are more likely to be arrested as a result of having
been stopped. In Minneapolis, blacks are about two and one half
times more likely to be arrested and booked than whites following
a traffic stop; American Indians about three times more likely.
Prosecution. There is little racial data in Minnesota
to determine what happens to cases when they are brought to prosecutors'
offices for charging. Some limited analysis has been done for
misdemeanor-level crimes within the city of Minneapolis. The
findings showed that a high percentage of the misdemeanor arrests
did not result in convictions and sentences -- for either blacks
or whites. For example, less than 30 percent of those arrested
for giving false information or disorderly conduct were convicted
and sentenced on those charges and less than 15 percent of those
arrested for lurking were convicted and sentenced.
Sentencing. The Minnesota Sentencing Guidelines Commission
keeps extensive data on the race of all offenders who are sentenced
at the felony level. From this data, we know that for felony-level
crimes, whites are less likely than minorities to serve time
What remedies currently exist to address the issues of disparity within the criminal justice system? Constitutional protections, federal civil and criminal statutes, and the Minnesota Human Rights Act all prohibit racial discrimination in the enforcement of the criminal law. The Minnesota Supreme Court has also relied upon its supervisory powers over the trial courts to review issues of disparity. These authorities serve as a check on the justice system -- from the initiation of a police investigation to the prosecutor's charging decision, to the resolution of the case by plea bargain or jury trial, to sentencing by the trial judge. They clearly prohibit intentional discrimination on the basis of race. Nonetheless, as a practical matter, they are all applied in situations where police, prosecutors, and judges traditionally exercise tremendous discretion as they weigh a multitude of factors to employ their best judgment. The limited review of case law set forth below illustrates the difficulties inherent in attempting to utilize current legal remedies to address the broader issues of the extent and the reasons for the disparities within the criminal justice system today.
Police Stops. The 4th Amendment prohibits unreasonable
searches and seizures. Violations of the 4th Amendment can result
in the suppression of evidence in a criminal trial and potential
civil liability under federal statutes such as 42 U.S.C. ¤
1983. The Supreme Court has been reluctant to examine arguments
of disparate treatment under the 4th Amendment, however, focusing
instead on the importance of objective probable cause determinations.
In prior caselaw, Whren v. United States, the Court had refused to consider an officer's subjective motivations for making a traffic stop, ruling subjective intent -- even if that intent is discriminatory -- is irrelevant under the 4th Amendment.8 Presented with information about the disproportionate rate at which African Americans are involved in police stops, the Whren Court ruled the 4th Amendment's prohibition against unreasonable searches and seizures could not be used as a remedy for this problem.9
The Minnesota Supreme Court has voiced its concern that Whren's
focus on objective probable cause may permit police, "who
have enormous discretion in enforcing traffic laws," to
target members of groups "identified by factors that are
totally impermissible as a basis for law enforcement activity."11 Acknowledging that Whren precludes
an inquiry of subjective intent under the 4th Amendment,12, the Minnesota Supreme Court has nonetheless
ruled that police may be civilly liable under Minnesota's Human
"National studies of all types
of crime suggest that prosecutors are more likely to pursue full
prosecution, file more severe charges, and seek more stringent
penalties in cases involving minority defendants than in cases
involving white defendants."
"Over half of Minnesota's
prison population is minority, and Minnesota now has the largest
disparity between black and white imprisonment rates of any state
in the nation: a ratio of 19:1."
Prosecution. Challenges to police activity are not
the only cases involving claims of racial disparity within the
criminal justice system. Selective prosecution claims seek dismissal
of criminal charges on the ground that the prosecutor based the
decision to charge on the defendant's race, a violation of the
Equal Protection Clause of the Constitution.17
To prevail, a defendant in a selective prosecution case must
present "clear evidence" that overcomes the presumption
that prosecutors have properly discharged their duties.
Juries and Sentencing. Issues of disproportionality
in other aspects of the criminal justice system are also difficult
to raise. Disparity within the jury pool can be challenged under
Article 1, Section 6 of the Minnesota Constitution, but only
if a defendant can show "that over a significant period
of time -- panel after panel, month after month -- the group
of eligible jurors in question has been significantly underrepresented
on the panels and that this results from 'systematic exclusion,'
that is, unfair or inadequate selection procedures."21 This decision, in State v. Williams,
was issued shortly after the Minnesota Supreme Court's Racial
Bias Task Force report. Although the Williams Court found
no constitutional violation in the disparate representation of
people of color in Ramsey County's jury pool, the Court nonetheless
announced its intent to use its supervisory power over the trial
courts "to insure that the systems used are increasingly
inclusive in the hope that the faces of the people in the jury
room will soon mirror the faces of the people in the community
Recognizing the difficult practical and legal barriers to
addressing the disparate impact of the criminal justice system
on people of color, Minnesota legislators have been considering
laws which begin to address police activity. Proposed bills call
for increased police training on racial profiling, funds for
cameras in police cars to record police stops, and more data
collection. Recent attention has also been focused on internal
police department complaint procedures as an additional remedy
for people who believe police have targeted them based solely
on their race.
"Stating that 'race or color
alone is not a sufficient basis for making an investigatory stop,'
the Minnesota Supreme Court
has held that official immunity
will not protect police from liability
if their actions
constituted 'a malicious or willful wrong.'"
1 The settlement arises from a civil suit against the state
of New Jersey under 42 U.S.C. ¤ 14141 and 42 U.S.C. ¤
3789d(c), alleging that officers patrolling the New Jersey Turnpike
had the intent of discriminating on the basis of race and that
state police had used criteria or methods of enforcement that
had the effect of discriminating on the basis of race. The settlement
also provides a process for complaints about police activities.
See Consent Decree, United States v. New Jersey, Civ.
No. 99-5970 (D.N.J.) http://www.usdoj.gov/crt/split/documents/jerseycomp.php,
cited in Wesley M. Oliver, "With an Evil Eye and Unequal
Hand: Pretextual Stops and Doctrinal Remedies to Racial Profiling,"
74 Tul. L. Rev. 1409, 1477-78 (2000).
In 2000, the Council on Crime and Justice launched a multiyear initiative to address the racial imbalances in Minnesota's criminal justice system. The Racial Disparity Initiative (RDI) brings together research and advocacy to achieve policy change. The goals of RDI are to:
The projects currently being conducted by the Initiative include an examination of the extent and causes of the racial disparity in arrest rates. Another project focuses on the impact of imprisonment on families and communities. The community -- including both the directly affected communities and the broader community -- participates in the research design and implementation as well as in formulating solutions. To learn more about RDI call (888) 756-9669 or email the Initiative at firstname.lastname@example.org