Racial Epithets in the Criminal Process

Abstract

The evidence of modern bias is often difficult to document and, even when documented, still capable of racially neutral interpretations. In contrast, the use of racial epithets is neither subtle nor ambiguous. Prior to the research that generated this article and our representation of two clients whose cases involved racial epithets, we would have assumed that the use of a racial epithet by a decision-maker in a criminal trial would be rare, but that assumption turns out to be wrong. We also would have assumed that the use of an epithet by any of the decision makers would lead to reversal, but that assumption also turns out to be largely wrong. Examination of modern racial epithet cases reveals the persistence of race-based animosity and the absence, in most jurisdictions, of any significant efforts to ameliorate its influence on criminal cases. We collect the cases and review courts’s reasons for denying relief. Then we consider how a judicial system committed to racial equality would respond to racial epithets in criminal cases. Ultimately, we propose, explain, and defend the following rule: When a (1) decision maker n a (2) criminal case uses a (3) racial epithet to address, describe, or refer to (4) the defendant, or in the case of a lawyer, other defendants he or she contemporaneously represented or prosecuted, and the defendant raises the resulting claim at (5) the first opportunity after he discovers the use of the epithet, the defendant’s (6) conviction should be reversed.

A nation that has made some progress toward the goal of racial justice should both acknowledge that progress and admit that the goal has not yet been achieved. Rooting out the influence of racial epithets, whenever discovered, is a necessary, albeit modest, step toward that goal.

Keywords: death penalty, capital punishment, racial, race