To say that the recent Supreme Court case of Connick v. Thompson has racial undertones is akin to observing that the Pacific Ocean is wet.

Yet a majority of the Court (in an opinion written by Justice Thomas) resolutely and steadfastly averts its eyes from race throughout the entire opinion.  It is not until page 3 of Justice Ginsburg’s dissent that we learn that Thompson is African-American.  Even then, we are left to guess that Connick is White, and race is not presented as relevant to the case.

Connick concerned multiple Brady violations (improper withholding of exculpatory evidence) by prosecutors in Orleans Parish, Louisiana.  Because of those violations, John Thompson spent 18 years in prison—14 of them on death row.  The legal question presented to the Court was whether the district attorney office’s “failure to train” on the requirements of Brady was actionable under Section 1983.

The majority held that a district attorney could generally rely on law school, the bar exam, CLE requirements, and the ethical standards of the profession to ensure that all prosecutors in his or her office were aware of and would comply with the Brady requirements.

If the Court were not “colormute,” it might have noted the following:

John Thompson is Black.

Harry Connick, Sr., former district attorney of Orleans Parish, is White.

As of January 1, 2010, 42% of Death Row inmates nationwide were Black.

As of 1998, 98% of chief district attorneys in states with the death penalty were White.

As of the mid- to late 2000’s, 40% of prison inmates were Black.

As of 2000, 89.2% of attorneys were White.

Criminal justice profs Brett Garland, Cassia Spohn, and Eric Wodahl have referred to the disproportionate incarceration in the U.S. of citizens of color, especially men, as “the critical race and justice issue of the 21st century”.

Law prof Bill Quigley of Loyola New Orleans has asserted that

[t]he biggest crime in the U.S. criminal justice system is that it is a race-based institution.”

Prosecutors play a significant role in this institution.

The VERA Institute of Justice’s Prosecution and Racial Justice (PRJ) initiative has identified four points of prosecutorial discretion at which racial bias can affect decisions:  case screening, charging, plea offers, and final disposition.  VERA’s PRJ is working with prosecutors in three U.S. counties—San Diego, California; Milwaukee, Wisconsin; and Mecklenburg, North Carolina—to first identify racial disparities through data analysis and then to instigate culture changes in prosecutors’ offices that will counter the institutionalized racism caused by often-unconscious bias.

To the PRJ and its partners, racial bias in prosecutorial discretion can be identified and addressed.

Perhaps the real “failure to train” in Connick, then, centered not on Brady but on possible racial bias–intentional or unintentional–in the exercise of prosecutorial discretion.

Being aware of and countering such racial bias are not universally taught in law school, not tested on the bar exam, not mandated in CLE courses, and not explicit in the ethical standards of the profession.

If they were, the next time a tsunami from the Pacific washes in, the Court might acknowledge that it’s barely treading water.