Guest Post

  • 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.

  • 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

  • February 9, 2015
    Guest Post

    by Katherine Culliton-González, Chair, Voting Rights Committee of the Hispanic National Bar Association

    This morning the D.C. Circuit federal court heard important oral argument about the fundamental right to vote of persons born in the United States.  That’s right—in Tuana v. United States, the federal court will decide whether U.S. nationals have the right to vote. 

    Like millions of U.S. citizens born in Puerto Rico, millions of “nationals” born in the “unincorporated U.S. territories” in American Samoa and other Pacific Islands cannot vote in the elections of the country that governs their existence.  The overwhelming majority are voters of color—and as we celebrate the 50th Anniversary of the Voting Rights Act, we must wonder why any U.S. citizen or “national” governed by our laws and subject to our jurisdiction would be so flatly and unequivocally denied the fundamental right to vote. 

    Puerto Ricans living on the Island cannot vote in federal elections because they have only limited citizenship under the Jones Act of 1917.  Yet they serve in the military and must abide by the laws of the United States.  Puerto Rico is home to nearly 4 million Latino U.S. citizens who cannot vote to elect congressional representatives or the president.  This Catch-22 can also be traced to a controversial series of Reconstruction-era Supreme Court decisions known as the Insular Cases, which created a doctrine of “separate and unequal” status for more than 4 million Americans living in “unincorporated U.S. territories” such as American Samoans.  First Circuit Judge Juan Torruella argued at a Harvard Law School conference that “the Insular Cases should be soundly rejected because they represent the thinking of a morally bankrupt era in our history that goes against the most basic precept for which this nation stands: the equality before the law of all of its citizens.”