Equality and Liberty

  • February 17, 2015
    Guest Post

    by Nazgol Ghandnoosh, Ph.D., Research Analyst, The Sentencing Project; author of Race and Punishment: Racial Perceptions of Crime and Support for Punitive Policies and Fewer Prisoners, Less Crime: A Tale of Three States (co-authored with Marc Mauer).

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

    Between 2007 and 2009, black men received federal sentences that were 14 percent longer than those for white men with similar arrest offenses, criminal histories and other prior characteristics.  In their Yale Law Journal article, Sonja B. Starr and M. Marit Rehavi show that prosecutors – not judges – have been the “dominant procedural sources of disparity.”  This is because prosecutors were twice as likely to charge black defendants with offenses that carried mandatory minimum sentences than otherwise-similar whites.  Similar patterns emerge at the state level.  Mandatory minimum sentences have therefore not eliminated sentencing disparities by standardizing judicial decisions as some had hoped.  Instead, mandatory minimums have merely transferred power from judges to prosecutors.

    In my recent report with The Sentencing Project, I outline the major sources of racial disparity in criminal justice outcomes and highlight recent initiatives for targeting these inequities.  Racially biased use of discretion – not just among prosecutors, but also police officers, judges and potentially even public defenders – is just one source of racial disparity in sentencing.

    A second cause is ostensibly race-neutral policies and laws that have a disparate racial impact. For example, drug-free school zone laws mandate sentencing enhancements for people caught selling drugs near school zones.  The expansive geographic range of these zones coupled with high urban density has disproportionately affected residents of urban areas, and particularly those in high-poverty areas – who are largely people of color. A study in New Jersey found that 96% of persons subject to these enhancements in that state were African American or Latino. All 50 states and the District of Columbia have some form of drug-free school zone law.

  • 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.