Racial justice

  • February 23, 2015
    Guest Post

    by Lauren-Brooke Eisen, Counsel, Justice Program, Brennan Center for Justice

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

    For decades, America’s incarceration policies have been questioned both for their result of dwarfing every other nation on the planet in the number of people locked behind bars but also for their vast racial disparities.

    Policies enacted during the height of the War on Drugs in the 1980s and 1990s expanded the use of incarceration as a response to rising crime and fear of crime.  These include mandatory minimums, truth-in-sentencing laws, “three strikes you’re out” laws, federal funding targeted for building more prisons and other sentencing regimes that exponentially expanded America’s prison population.

    The numbers are revealing.  Since the 1970s, incarceration in the U.S. has increased steadily and dramatically.  In fact, since 1990 the U.S. has added about 1.1 million additional people behind bars, almost doubling the nation’s incarcerated population.  These prisoners are disproportionately people of color.

    African-American males are six times more likely to be incarcerated than white males and 2.5 times more likely than Hispanic males.  In 2013, almost 3 percent of black males were imprisoned compared to 0.5 percent of white males.  America’s prisons and jails cost more than $80 billion annually – about equivalent to the budget of the federal Department of Education.  This is the phenomenon of mass incarceration.

    A recent report by the Brennan Center for Justice at NYU School of Law provides additional empirical evidence for incarceration’s ineffectiveness at today’s unprecedented levels.  Crime across the United States has steadily declined over the last two decades.  Currently, the crime rate is about half of what it was at its height in 1991.  Violent crime has fallen by 51 percent since 1991, and property crime by 43 percent.

  • February 20, 2015
    Guest Post

    by Alex Kreit, Associate Professor of Law, Thomas Jefferson School of Law; Director, Center for Law & Social Justice; Co-Director, Criminal Law Fellowship Program

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

    In their influential 1970 study of marijuana prohibition in the United States, Richard J. Bonnie and Charles H. Whitebread found that “racial prejudice” was the “most prominent” factor in the passage of early marijuana prohibition laws.  When states began passing these laws in the first few decades of the 1900s, it was not uncommon to see legislatures expressly link marijuana prohibition with race.

    Reporting on a1929 hearing on a marijuana prohibition bill in Montana, for example, the Montana Standard told readers:

    “There was fun in the House Committee during the week when the Marihuana bill came up for consideration.  Marihuana is Mexican opium, a plant used by Mexicans and cultivated by Indians.  ‘When some beet field peon takes a few rares of this stuff,’ explained Dr. Fred Fulsher of Mineral County, ‘He thinks he has just been elected president of Mexico so he starts out to execute all his political enemies.  I understand that over in Butte where the Mexicans often go for the winter they stage imaginary bullfights in the ‘Bower of Roses’ or put on tournaments for the favor of ‘Spanish Rose’ after a couple of whiffs of Marihuana.’ Everybody laughed and the bill was recommended for passage.”

    It is rare to see anyone rely on anything approaching this sort of overt racism in the debate over marijuana laws today.  Indeed, nearly everyone ― prohibitionists and legalization advocates alike ― agrees that racial disparities in marijuana enforcement (and drug enforcement more broadly) are undesirable.  Most also acknowledge the issue is a cause for real concern and action.

    And yet, disparities in marijuana enforcement persist.  A 2013 ACLU report found that blacks are 3.73 times as likely to be arrested for marijuana possession as whites, even though the two groups use marijuana at roughly equal rates.  In New York City, Mayor de Blasio called racial bias in marijuana arrests “wrong and unjust” during his campaign.  But the first months of his administration saw even more total marijuana possession arrests than before, with an alarming racial divide: 86 percent of the people arrested were black or Latino and only 10 percent were white.

    Why is it so hard to address the disproportionate impact of marijuana arrests on communities of color despite widespread acknowledgement that it is a serious problem?  A lot of it has to do with the way marijuana investigations are initiated and the decentralized nature of law enforcement in the United States.

  • February 18, 2015
    Guest Post

    by Ryan P. Haygood, Deputy 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.

    The history-making events of “Bloody Sunday” on March 7, 1965, in Selma, Alabama, ultimately freed the vote for millions of Black voters.  But 50 years later, as we commemorate the march that led to passage of the Voting Rights Act of 1965, we are also reminded that more than two million Black people continue to be denied the right to vote by one of the vestiges of American slavery.

    Black voter registration in Selma in 1965 was made virtually impossible by Alabama’s relentless efforts to block the Black vote, which included requiring Blacks to interpret entire sections of Alabama’s constitution, an impossible feat for even the most learned.  On one occasion, even a Black man who had earned a Ph.D. was unable to pass Alabama’s literacy test.

    On Bloody Sunday, John Lewis and Reverend Hosea Williams led almost 600 unarmed men, women and children in a peaceful march across the Edmund Pettus Bridge from Selma to Montgomery to dramatize to the nation their desire as Black people to participate in the political process.

    As they crossed the highest part of the bridge, the marchers were viciously attacked by Alabama state troopers, who ridiculed, tear-gassed, clubbed, spat on, whipped and trampled them with their horses.  In the end, Lewis’s skull was fractured by a state trooper’s nightstick, and 17 other marchers were hospitalized.

    In direct response to Bloody Sunday, President Lyndon Johnson five months later signed the Voting Rights Act of 1965 into law.  Considered by many to be the greatest victory of the civil rights movement, the Voting Rights Act removed barriers, such as literacy tests, that had long kept Blacks from voting.

    Despite the promise of increased political participation by Black people and other people of color created by the Voting Rights Act, which twice led to the election of a Black president, its full potential has not been realized by one of the last excluded segments of our society: Americans with criminal convictions.

    Today, more than 5 million Americans are locked out of the political process by state felon disfranchisement laws that disqualify people with felony convictions from voting.

    The historical record reveals that to prevent newly freed Blacks from voting after the Civil War, many state legislatures in the North and South tailored their felon disfranchisement laws to require the loss of voting rights only for those offenses committed mostly by Black people.

  • 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 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.