Equality and Liberty

  • 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 9, 2015
    Guest Post

    by Chris Edelson, Assistant Professor of Government, American University School of Public Affairs. Edelson is also author of Emergency Presidential Power: From the Drafting of the Constitution to the War on Terror from the University of Wisconsin Press.

    The misstep Republicans took last month on legislation seeking to prohibit abortions after 20 weeks of pregnancy has exposed larger problems related to the party’s position on abortion.  The bill foundered when some House Republicans raised concerns about a provision that would create a “rape exception” to permit abortions after 20 weeks of pregnancy, but only for victims of rape who report the crime.  Republican House member Rep. Carlos Curbelo said he is “pro-life but . . . had concerns about the bill.”  Rep. Curbelo added that he believed the rape reporting requirement caused “a level of discomfort, especially with the females in our conference.”  Republican leaders in the House agreed with Curbelo and canceled a vote on the legislation, apparently based at least in part on concerns that Republican women in the House would vote as a bloc against the bill because of the wording of the rape reporting provision.

    This unexpected development highlights problems in terms of both logic and politics for Republicans when it comes to abortion and, more broadly, when it comes to women.  The Republican Party has taken a position that strongly suggests abortion is never justified, using language reminiscent of anti-abortion arguments that flatly describe abortion as murder.  The 2012 Republican Party platform declared that “the unborn child has a fundamental individual right to life which cannot be infringed.” That language does not seem to leave room for any exceptions – whether they might be for the health of the pregnant woman or for rape.  Logically, it makes sense for the party to take this stance.  If Republicans believe abortion involves the taking of an innocent life – and elected Republicans frequently make clear that they believe precisely this – then it would not make sense for them to support abortion under any circumstances (other than if the pregnant woman’s life is at risk).

    The problem is that polling shows most Americans reject this position and believe women who are pregnant as the result of rape should be able to get an abortion.  Relatedly, in 2012 when Republican senatorial candidates Todd Akin and Richard Mourdock tried to explain why they believed abortion was only permissible in cases of “legitimate rape” (Akin) or that perhaps it is never permissible because pregnancy resulting from rape is “something God intended” (Mourdock), they ended up costing their party otherwise very winnable Senate seats.

    Republicans, of course, remember 2012 very well and have no interest in reminding the rest of the country of the cringe-inducing debate over how best to define rape.  Sen. Lindsey Graham recently suggested that the party needs to “find a way out of this definitional problem with rape” (although, as Joan Walsh observes, Sen. Graham risks stepping in the same trap as Todd Akin simply by alluding to a “definitional” question regarding rape.)  The revival of the rape definition discussion (most recently prompting philosophical musings by a Utah lawmaker about the ability of unconscious wives to have consensual sex) raises a larger problem for Republicans: It seems they just don’t trust women

  • January 30, 2015
    Guest Post

    by Kelli Garcia, Senior Counsel, National Women's Law Center

    Between 2011 and 2013, politicians in 30 states enacted 205 abortion restrictions, ranging from outright and unconstitutional abortion bans to laws intended to make it impossible for providers to offer abortion. Last year alone, fifteen states adopted 26 new restrictions that limit or impede access to abortion, making it harder and sometimes impossible for women to exercise their constitutionally protected right to abortion. This wave of anti-abortion activity has dramatically changed the country’s landscape for women seeking an abortion. According to the Guttmacher Institute, in 2013, more than half the states had at least four abortion restrictions in effect

    These multiple restrictions compound and, for many women, make it impossible to obtain an abortion. In Texas, for example, a woman seeking a medication abortion has to make four separate trips to the provider because of the restrictive laws that exist in that state. She is forced to undergo and view an ultrasound, listen to a description of the fetus' development, wait 24 hours, and then has to make two trips for medication abortion because Texas forces providers to use an outdated protocol rather than following current evidence-based medical practice. And this is if she can actually reach a provider - one out of six women in Texas will have to travel 150 miles or more to reach an abortion provider.

    These laws impose unnecessary monetary costs. These costs are particularly devastating to low-income and poor women who already face significant barriers accessing care. The cost of the abortion itself can be prohibitive, especially when politicians force women to pay out of pocket by prohibiting insurance coverage of abortion. Then, women must arrange for and receive time off work, most likely without pay. They might have to pay for childcare, find a place to stay or make multiple roundtrips to distant clinics, and/or find reliable transportation.  As one provider aptly noted, “[T]he vast majority of women can’t add those travel costs to the cost of an abortion or they can’t take off work.” These restrictions chip away at women’s right to abortion by creating so many barriers that abortion becomes unobtainable.

  • January 20, 2015
    Guest Post

    by Valerie SchneiderAssistant Professor of Law at Howard University School of Law.

    On Wednesday, January 21, the Supreme Court will hear arguments in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc., one of the most important civil rights cases of the 2014-2015 Supreme Court term.  Via this case, the Justices will decide whether disparate impact claims – that is, claims where members of a protected class are disproportionately affected, but where intent to discrimination cannot be proven – are cognizable under the Fair Housing Act.

    Much has been written on the text, legislative history and case law that supports the validity of disparate impact analysis under the Fair Housing Act.  Indeed, as pointed out by many, in the Fair Housing Act’s over 45 year history, every circuit that has examined the issue has either assumed or decided that such claims are cognizable under the FHA.  The Department of Housing and Urban Development also weighed in last year, issuing a rule that clarifies the burden-shifting structure of such claims.  What is less examined, however, is why disparate impact analysis matters, not just as a litigation strategy, but as a behavior-modifier and as a moral imperative.

    Housing segregation was not just sanctioned, but explicitly enforced by public and private actors in our country for over 200 years. During that time, minorities were systematically denied not just access to housing, but access to all of the benefits that flow from housing opportunities:  educational opportunities, economic centers, healthy food, clean air, government services and many other critical threads in the fabric of American life. 

    After over 200 years of enforced segregation, housing discrimination has been prohibited for only 45 years.  Housing discrimination has been outlawed for less than one quarter of this country’s history. To say that prohibiting acts of intentional discrimination alone can reverse the ill-effects of our country’s long relationship with housing segregation is a fallacy.