Equality and Liberty

  • February 16, 2015
    Guest Post

    by Harvey Fiser, Associate Professor of Business Law at Millsaps College

    All eyes are once again focused on our southern states and their leaders for again defying federal court orders.  This time, as last, is about violating the constitutional rights of its citizens.  The latest in the long line of outspoken obstructionists is Alabama Supreme Court Justice Roy Moore.  Moore, infamous for once being removed from his position on the Alabama Supreme Court for defying a federal court order to remove a 2.6-ton monument of the Ten Commandments from the rotunda of Alabama’s Supreme Court building, is the lead mouth-piece on the current issue of same-sex marriage. 

    On Monday, February 9, after a denial of a stay request by both the Eleventh Circuit and the United States Supreme Court, United States District Court Judge Granade’s order took effect.  The order declared Alabama’s bans on same-sex marriage violate the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.  On that Monday, same-sex couples were allowed the same marriage rights as all other couples in Alabama – until they weren’t. 

    Perhaps forgetting the commandment, “remember the Sabbath and keep it holy (Exodus 20:8),” Justice Moore, on Sunday, February 8, set aside any Sabbath work restrictions and issued an Administrative Order prohibiting all probate judges in Alabama from granting marriage licenses to same-sex couples despite the federal court order.  Moore supported his order with the technical fact that neither the United States Supreme Court nor the Supreme Court of Alabama had ruled on the Alabama laws – never mentioning the denial of a stay by the U.S. Court of Appeals for the Eleventh Circuit five days prior.  The U.S. Supreme Court did act the next day, and, on Monday, February 9, the path was cleared for same-sex couples to marry in Alabama again.  Surely this satisfied Moore’s Sunday declaration.  Except, it didn’t.

  • February 13, 2015
    Guest Post

    by William Yeomans, Fellow in Law and Government, American University Washington College of Law; Faculty Advisor to the Washington College of Law ACS Student Chapter

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    The recent killings by police officers of Michael Brown and Eric Garner, and the failure of grand juries to charge the responsible officers under state law, once again have elevated the relationship between minority communities and the police forces that serve them onto the national stage.  The issue has periodically gained attention following dramatic incidents, such as the beating of Rodney King in 1991, the killing of Amadou Diallo in the Bronx in 1999 and the multiple killings on the Danziger Bridge in New Orleans following Hurricane Katrina.  These incidents are invariably racially charged, and they invariably cause victims, families and communities seeking a remedy for racial injustice to turn to the federal government to pursue federal criminal civil rights charges.

    Yet, unknown to most people – including confused “experts” rolled out by the media – the federal criminal law pursuant to which these cases are prosecuted, 18 U.S.C. 242, does not require proof of racial intent as an element of the crime.  Indeed, the vaguely worded statute subjects to criminal liability anyone who “under color of any law . . . willfully subjects any person . . . to the deprivation of any rights . . . secured or protected by the Constitution or laws of the United States . . . .”  The statute was originally enacted in 1866, narrowed in 1909, and has since been revisited only to enhance its penalties.  Congress’s failure to update the statute means that a law that was enacted 149 years ago for application in a very different society to very different circumstances – and which has subsequently been largely rewritten through judicial interpretation – is the principal federal tool for prosecuting police officers.

    Section 242 was originally enacted as a buffer between freed slaves and southern states, but along with most of Reconstruction’s civil rights protections, it fell into disuse through restrictive judicial interpretations and a failure of political will.  Restrictive readings of “color of law” and the scope of constitutional rights, and the Supreme Court’s attempt to save the statute from unconstitutional vagueness by requiring proof of specific intent, undermined the statute.  Under the Court’s interpretation, juries must find that the defendant knowingly engaged in conduct that violated a clearly established federal right even though he need not have been aware of the legal definition of the right.  The mental jujitsu required to apply the standard has befuddled juries ever since and made the Department of Justice cautious in enforcing the statute.

    The statute also requires the identification of a federal right.  The Court has held that a shooting or beating while a suspect is being taken into custody is a seizure which, pursuant to the Fourth Amendment, must be reasonable.  Reasonableness requires an objective calculation of what a reasonable officer would do, but it must take into account all of the pressures, uncertainties and confusion that confronted the defendant officer.  Therefore, on one hand the standard is objective, but its application becomes subjective when taking into account the officer’s perceptions. 

  • February 13, 2015
    Guest Post

    by Christina Swarns, Director of Litigation, NAACP Legal Defense and Educational Fund, Inc.

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

     

    “Hands up, don’t shoot.”

    “I can’t breathe.”

    “Black lives matter.”

    These are the now ubiquitous chants, hashtags and mantras that stand as succinct and eloquent expressions of the current crisis in race and criminal justice.  They also effectively capture the struggle for racial justice throughout our nation’s history and embody a call to action.  Thus, “hands up, don’t shoot” reminds us that while some have the capacity to devalue and destroy life, a gesture of surrender can also become a symbol of strength.

    “I can’t breathe” speaks to the poignant frailty of human life and the way in which violence intended to silence can instead embolden the oppressed.  And “black lives matter” is a profound reminder of the important work that remains to be done in order to achieve true racial justice in our country.

    “Hands Up, Don’t Shoot”

    On August 9, 2014, Michael Brown was shot to death by a police officer in Ferguson, Missouri.  Witnesses stated that Mr. Brown’s hands were up in surrender before he was killed.  Although this testimony later faced scrutiny and contradiction, the indication that a law enforcement officer responded to non-violence with lethal force struck a dangerously tender nerve that ignited a wave of protests across the country.  The public skepticism – and anger – about the criminal justice system’s treatment of Black people was compounded by the Missouri grand jury’s subsequent decision not to indict the officer that shot and killed Mr. Brown.

    This image of a White police officer using lethal force against a Black man in surrender is powerfully evocative of past events.  Almost 50 years ago – on “Bloody Sunday,” March 7, 1965 – state troopers in Selma, Alabama, violently assaulted 600 unarmed men, women and children who peacefully attempted to march across the Edmund Pettus Bridge to draw national attention to their fight to participate in the political process.  Law enforcement officers clubbed, spat-on, whipped and trampled with horses the protesters who had stopped to pray.

    Then, as now, this image of police answering non-violence with violence shocked and horrified the nation.  In response, President Lyndon B. Johnson addressed a joint session of Congress about the importance of voting rights; the NAACP Legal Defense & Educational Fund, Inc. secured an order allowing the march to proceed safely; and the Voting Rights Act was passed in August of 1965.

    Thus, “hands up, don’t shoot” speaks to not just the police brutality currently plaguing Black communities, but also the power of collective, strategic organizing and legal action.

  • February 12, 2015
    Guest Post

    by Jennifer Taylor, Staff Attorney, Equal Justice Initiative

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

    This country’s commitment to the jury system, enshrined in founding documents like the Declaration of Independence and Bill of Rights, is rooted in the ideal that the people should play a central role in the enforcement of societal standards.  In reality, however, racial discrimination in the selection of juries is a longstanding and enduring feature of American criminal justice.

    Prior to the Civil War, laws and customs rooted in white supremacy largely restricted jury service to white men.  During the Reconstruction era that followed the war and the abolition of slavery, the 14th Amendment declared all natural-born Americans – including African Americans – citizens with all associated rights and privileges.  The Civil Rights Act of 1875 included a provision outlawing race-based discrimination in jury service.  And in 1880, the U.S. Supreme Court in Strauder v. West Virginia struck down a statute restricting jury service to whites.  This progress was short lived.

    Southern lawmakers soon stopped passing explicitly discriminatory jury service laws but continued empaneling all-white juries during the late 19th and early 20th Centuries using highly discretionary practices controlled by white officials.  In an era of racial terror –characterized by widespread lynching of African Americans – discrimination in jury selection allowed all-white juries to remain a standard feature even in largely black counties, empowered lynchers to exact brutal racial violence with impunity and no fear of prosecution or conviction, and rendered the Constitution’s promise of full citizenship a hollow guarantee.

    Judicial intervention was slow and inconsistent.  In 1935, the Supreme Court overturned the death sentences of the Scottsboro Boys in Norris v. Alabama because black people had been excluded from serving on the trial jury, but then in 1945 the Court upheld a Texas county’s token policy of including exactly one black person on each grand jury.  By the 1960s and 1970s, the Court adopted and consistently enforced a rule that jury lists and venires must represent a “fair cross-section” of the community.  In response, the method of discrimination soon shifted from the composition of the jury pool to the selection of the final jury.

  • February 11, 2015
    Guest Post

    by Jennifer Carreon, M.S.C.J., Policy Researcher, Texas Criminal Justice Coalition, and Sarah Bryer, National Juvenile Justice Network

    *This post is part of our two-week symposium on racial inequalities in the criminal justice system.

     

    In the past decade, there has been a lot of good news in the field of juvenile justice reform – not least the series of four landmark U.S. Supreme Court decisions that, beginning with Roper v. Simmons in 2005, recognized the developmental differences that separate children and teens from adults, including their lessened culpability and enormous capacity for change.  At the same time, most states have significantly cut the number of youth they incarcerate.  Between 2001 and 2011, the number of youth confined in the U.S. declined by 41 percent.

    What’s more, new data from Texas shows that incarcerating fewer youth and serving more of them in the community makes communities safer.  Since 2007, the state has closed nine youth prisons, even as the juvenile arrest rate fell to a 30-year low.  In a report released at the end of January, the Council of State Government’s (CSG) Justice Center analyzed 1.3 million individual case records spanning eight years and assembled from three state agencies.  CSG found that youth who were incarcerated were 21% more likely to recidivate than youth handled locally.

    But it’s not time to break out the champagne yet: In spite of a decade of reform, racial disparities are worse than ever.  A new national study looking at racial and ethnic disparities between 1980 and 2000 found that Black and Hispanic boys were far more likely to be sent to a secure facility than white boys for similar behavior.  In the U.S. in 2011 (the most recent year for which data is available), Black youth were incarcerated five times as often as White youth; Latino youth twice as often; Native American youth three times as often.  If we think of the juvenile justice system as a maze with pathways in and out, it’s clear that youth of color have far more pathways into the maze than White youth do, and they’re lucky to find a pathway out.

    Even in states where significant juvenile justice reforms have been undertaken, the ratio of youth of color receiving dispositions in juvenile court has gotten worse, not better.  In Texas – where the CSG report provides powerful evidence that youth justice reform has produced promising results – one sees disproportionate numbers of youth of color at every decision point in the system, and with Black youth in particular, who appear at almost twice the rate one would expect compared to their numbers in the general population.