Criminal Justice

  • February 11, 2015

    by Nanya Springer

    Most Americans are aware that black people in the South were frequently subjected to public executions by white mobs during the Reconstruction era, but the true extent of this practice was not known until very recently.  Yesterday, the Equal Justice Initiative released a report, Lynching in America: Confronting the Legacy of Racial Terror, which documents 3,959 lynchings of African Americans between 1877 and 1950.  The report is significant not just because it found evidence of approximately 700 more lynchings than previously recorded, but also because it reveals the true nature of lynchings and their effect on the African American community and society as a whole – then and now.

    The report notes that lynchings were not merely public hangings, but rather involved severe forms of torture, including castration, dismemberment, flaying and burning.  In addition, lynchings were not typically spur-of-the-moment acts of vigilante justice, but were celebrated events – ceremonious spectacles often attended by the entire white community of a town, including prominent public officials, and written about in the town newspaper.  Those who participated in lynchings did not wear disguises or cover their faces, but no white participant was ever convicted of murder for engaging in the practice.

    Importantly, EJI’s report investigates the role that lynchings played in society during this time, finding that lynchings constituted a form of racial terror used to keep black people subjugated.  A lynching victim was typically accused of a crime – often of raping a white woman – or of a minor offense such as speaking improperly to a white person or wearing a military uniform in public.  Then, without due process, he (or sometimes she) was ritualistically and publicly murdered.  Because the accusations were usually obvious pretense and because white perpetrators were never punished for their actions, lynchings had a deep psychological impact on the black community and also created a culture in which black lives were viewed as unimportant and not valuable.

    EJI Director Bryan Stevenson said, “[t]he geographic, political, economic, and social consequences of decades of terror lynchings can still be seen in many communities today and the damage created by lynching needs to be confronted and discussed.”

    Contact EJI for the full-length report or read the report summary here.

  • February 10, 2015

    by Nanya Springer

    In recent years, there has been much discussion about whether America is now a “post-racial” society.  The introduction of the first non-white family into the White House was accompanied by some enthusiastic declarations of victory over the scourge of racism.  Observers looked to the president and to other successful minorities and decided that yes, racism is indeed over.

    But focusing on the most successful elements of any demographic group proves little, for wealth has the ability to elevate and to insulate.  One area where this is most evident is in the American criminal justice system.  When navigating the justice system, the ability to hire top-notch legal counsel or to post a significant bond drastically affects the outcome of a case.  This is true for both white citizens and for citizens of color.

    Unfortunately, however, racial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color.  There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.

    The result is that Americans of color face disadvantages at every stage of the criminal justice system.  From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white.

  • February 6, 2015
    Guest Post

    by Peter Wagner, Executive Director, Prison Policy Initiative; winner of the 2014 David Carliner Award

    Receiving the American Constitution Society’s David Carliner Award last year was a huge honor and a wonderful celebration of the connection between criminal justice reform and other progressive movements. For too long, progressive movements have all worked in isolation from each other, but ACS and this award have, like its namesake, celebrated our common struggle for justice and human rights.

    I went to law school a decade ago when prison populations were going up and up, and up seemed like the only future. Both the powers that be and the established progressive movement were ignoring criminal justice advocates. The award, named for human rights champion David Carliner, represents an important milestone because it recognizes criminal justice issues – and the victories we have won together over the last decade – as essential victories for the broader progressive movement.

    I co-founded the Prison Policy Initiative to challenge policies that were doing more to exacerbate existing racial and economic disparities in our country than they were doing to respond to crime.  I wanted to collaborate with other criminal justice experts – such as incarcerated people, their families and lawyers – to force our country to confront the fact that our criminal justice system has grown so large that it punishes everyone, including people who are not directly involved in the criminal justice system.

    Take the U.S. Census. The U.S. Census counts incarcerated people as if they were willing residents of the prison location. This would be nothing more than a good item of statistical trivia if there weren't so many people in prison and if we didn't use this flawed data to draw legislative districts. Taking more than 2 million incarcerated people, who are mostly people of color, and deliberately counting them in the wrong communities systematically changes the legislative districts and therefore every political decision our legislatures make. "Prison gerrymandering" is a very subtle but ever-present thumb on the scale of our democracy. That's a large part of why state legislatures prioritize the demands of excessive punishment over more sensible alternatives.

  • January 30, 2015

    Five years after the Supreme Court in Citizens United struck down restrictions on corporate spending in elections, the American political landscape has become one where influence can be bought and the voices of wealthy donors drown out other perspectives. 

    Almost immediately after the Citizens United decision, outside spending in elections spiked.  Over the next five years, it more than doubled.  Super PACs used hefty budgets to produce attack ads against candidates who were not to their liking—affecting outcomes in not only political races, but also in state judicial elections. 

    Judges perceived as being unfriendly to PACs’ interests were attacked under the pretense of being “soft on crime,” resulting in measurably harsher treatment of criminal defendants by state supreme court justices.  Further, the last five years have seen a flood of dark money into elections.  As many commentators have noted, donor secrecy breeds mistrust and, possibly, corruption.

    Americans expect the courts to be fair and impartial, but as special interest groups spend more and more money to influence courts, public faith in these institutions is waning.  Soon, the Supreme Court will have to decide how important judicial independence is to our justice system in Williams-Yulee vs. The Florida Bar, a case that could, if wrongly decided, further diminish public trust in the courts.  For those concerned about Citizens United, Williams-Yulee, or the corrosive impact of unrestrained special interest spending on our democracy, see the following ACS resources:

    Skewed Justice: Citizens United, Television Advertising and State Supreme Court Justices’ Decisions in Criminal Cases, Joanna Shepherd and Michael S. Kang

    Five Years Later, Citizens United Wreaks Havoc on Our Democracy, Fred Wertheimer, ACSblog

    The Top Five Myths About the Democracy For All Amendment, John Bonifaz, ACSblog

    Supreme Court Briefing: Williams-Yulee vs. The Florida Bar, Video

    Interview with Professor Tracey George on Williams-Yulee, Video

    Democracy and Our State Courts: Fighting Back After Citizens United, Video


  • January 29, 2015
    Guest Post

    by Eric Berger, Associate Professor of Law, University of Nebraska College of Law

    The U.S. Supreme Court last week granted certiorari in Glossip v. Gross, in which plaintiffs challenge the constitutionality of Oklahoma’s lethal injection procedure.  Glossip raises important questions about how the Eighth Amendment standard announced by the Court in 2008 in Baze v. Rees applies to experimental drug combinations.  However, the questions presented in Glossip do not directly address the crucial, related question of whether states must disclose their lethal injection procedures to inmate plaintiffs.  To this extent, the Court is putting the cart before the horse.

    Indeed, many death row inmates lack important information about the procedures with which the state plans to execute them.  The problem appears to be worsening as states increasingly conceal more details of their execution procedures.  Courts, for their part, usually reject inmates’ requests to learn this information. 

    In a recent law review article, I argue that these state practices and judicial responses are wrong.  To be sure, some execution procedures, upon closer examination, may be safe and constitutional, but some certainly are not, and courts have no way of distinguishing the safe from the dangerous without inquiring into the details of the procedure.  To this extent, courts have repeatedly blessed execution procedures about which they know virtually nothing.