Other courts

  • 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  The statute was originally enacted in 1866, narrowed in 1909, and has since been revisited only to enhance its penalties.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    Section 242 was originally enacted as a buffer between freed slaves and southern states, but along with most of Reconstruction’s civil rights protections, it fell into disuse through restrictive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

    by Caroline Cox

    In Thursday’s Senate Judiciary Committee Executive Session discussion, four nominees were held over until a later meeting: Alfred Bennett, George C. Hanks, Jr., and Jose R. Olvera, Jr. to be U.S. District Judges for the Southern District of Texas and Jill N. Parrish to be a U.S. District Judge for the District of Utah. 

    Despite change in leadership of the Senate Judiciary Committee, the pattern of Republican obstructionism continues with the use of the procedural tactic to “hold over” judicial nominees. Alliance for Justice critiques the practice in a recent blog post.

    The Detroit Free Press reports that in a meeting with President Barack Obama at the White House this week, Muslim-American leaders asked the president to nominate a Muslim-American to the federal bench. There has not yet been a federal judge in the U.S. who is Muslim.

    Vocativ provides a list of the senators that have been the most likely to vote against Obama appointees and stall the judicial nomination process. 

  • 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 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.