Justices Hear Arguments That Prosecutors Target Blacks In Drug Cases

The Supreme Court heard arguments Monday in a case involving whether federal prosecutors are targeting blacks for drug trafficking charges, a question that arises against a backdrop of national debate over how stiff prison terms for crack cocaine fall disproportionately on blacks.

In a tense hour of give-and-take, the justices appeared wary of forcing the government to explain its charging practices without preliminary evidence showing that black and white drug defendants are treated differently.

If a black defendant seeks to allege “selective prosecution,” Justice David H. Souter suggested, he should offer evidence of the experience of white drug suspects.

“I would have thought if there is selective prosecution,” said Justice Stephen G. Breyer, “lots of examples” would exist.

Five Los Angeles defendants have claimed they were singled out in 1992 for federal prosecution on charges of operating a “crack house.” They claim prosecutors are steering black suspects into federal court and white defendants into state court, where a guilty verdict can mean less than half the prison time. Monday’s case tests what sort of evidence is enough to raise a legitimate claim of selective prosecution and require the government to produce information relating to charging procedures.

Lower courts ordered such production of documents, known legally as “discovery,” based on a showing that of the 24 federal crack cocaine cases closed by the Los Angeles public defender’s office in 1991, all involved black defendants.

But Solicitor General Drew S. Days III Monday stressed the courts’ long-standing protection for prosecutorial discretion. He said defendants should have to show “concrete evidence” of discrimination and that prosecutors are treating similarly situated defendants differently.