COURT HEARS BIAS CLAIM IN CRACK CASE.

Byline: Associated Press 

A crack cocaine case involving five Southern California African-Americans sparked a Supreme Court debate Monday over what evidence federal defendants must provide to pursue claims of selective prosecution based on race.

Defendants should have to provide "concrete evidence" of selective prosecution before prosecutors can be forced to answer such allegations in court, Solicitor General Drew S. Days III told the justices.

Defendants who assert such claims should have to show that people of other races were not prosecuted for the same crime, he said.

But a lawyer for the five men charged with trafficking in crack said a lower court properly ordered prosecutors to answer the defendants' claim that they were charged in federal court because they are African-American.

Many crack cocaine users are white, but all 24 of the cases closed by the Los Angeles federal public defender's office in 1991 involved African-Americans, lawyer Barbara E. O'Connor said. That fact was enough to force an inquiry into prosecutors' actions, she said.

Justice Stephen G. Breyer questioned why it would be too difficult to show that people of other races had not been prosecuted.

"I would have thought if there is selective prosecution they would have had lots of examples," Breyer said. "That should be easy. Why isn't it?"

Such records are not always available to criminal defendants, O'Connor said.

Justice Antonin Scalia suggested defendants should have to meet a high standard before being allowed to "put the government on trial" with selective prosecution claims.

"Criminal prosecutions are supposed to be about whether the defendant is guilty of the crime," Scalia said. Prosecutors who act unfairly could be sanctioned without letting defendants go free, he added.

Scalia suggested going even further than a requirement that defendants show a particular federal prosecutor is discriminating on the basis of race.

"Why shouldn't the test be whether this statute is being selectively enforced nationwide?" he asked.

In the California case, a lower court threw out cocaine trafficking charges against the five men after prosecutors refused to explain why they had been charged in federal court instead of in state court. The federal charges carried a much stiffer penalty than was provided under California law.

The Clinton administration is asking the justices to reverse the lower court ruling.

Justice Ruth Bader Ginsburg noted the case is related to the debate over the federal policy of punishing crack cocaine defendants much more harshly than those convicted of crimes involving powder cocaine. Crack defendants tend to be African-American, while powder cocaine.