Racial justice

  • May 8, 2015
    Guest Post

    by John Paul Schnapper-Casteras, Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, Inc., which filed a brief in support of marriage equality, together with the NAACP. Follow him on Twitter @jpscasteras.

    It was a familiar scene at the U.S. Supreme Court: states argued that allowing certain couples to marry would impose long-term harms upon children, families and social institutions. They contended that it is not the judiciary’s place to scrutinize restrictions upon the freedom to marry.  And they fell back upon the claim that the definition of marriage is a longstanding tradition.

    No, I’m not talking about last week’s argument on same-sex marriage; I’m referring to the 1967 case of Loving v. Virginia, which ultimately struck down bans on interracial marriage as unconstitutional. Switch a few names and adjectives and you could have approximated swathes of the oral argument from 48 years ago, listening to Virginia defend a central vestige of segregation.  Indeed, Virginia now acknowledges that it had supported interracial marriage bans and school segregation with “the same arguments offered by marriage equality opponents today” and powerfully concedes that it was on the “wrong side” of those issues.

    The resemblance should come as no surprise.  Civil rights groups like the NAACP Legal Defense Fund and NAACP have long advanced briefs and analyses about the logical and legal parallels between interracial marriage and same-sex marriage.  Recently, Bloomberg and the Wall Street Journal released new studies comparing our nation’s ability to progress on these two issues.  Courts around the country have recognized the enduring relevance of Loving’s holding that “the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness” and that “all the State’s citizens” possess a fundamental right to marry.

    Likewise, last week, the justices repeatedly focused on Loving, referencing it ten times in the transcript and another half-dozen times indirectly.  Justice Kagan explored how “Loving was exactly what this case is” and Justice Breyer explained that the states’ reliance upon tradition today is “the same way we talk[ed] about racial segregation.”  The Solicitor General put it eloquently: allowing states to discriminate against same-sex couples “will approximate the nation as a house divided that we had with de jure racial segregation,” and he did not “know why we would want to repeat that history.”

  • May 7, 2015
    BookTalk
    Allegiance
    A Novel
    By: 
    Kermit Roosevelt

    by Kermit Roosevelt, Professor of Law, University of Pennsylvania Law School

    In 1896, in Plessy v. Ferguson, the Supreme Court upheld a Louisiana law that segregated railroad cars by race.  The Equal Protection Clause, the majority explained, prohibited discrimination that aimed to stigmatize or oppress a group, but racial segregation did not.  It was, instead, a reasonable, good faith response to the way things were.  In 1954, in Brown v. Board of Education, the Court changed its mind.  Segregation was inherently stigmatizing, it said, and anything to the contrary in Plessy was overruled.

    This pattern ‒ initial acceptance of a certain kind of discrimination followed, years later, by its rejection ‒ has repeated itself with each major civil rights movement in our constitutional history.  Plessy yields to Brown; Bowers to Lawrence; Bradwell v. Illinois (which upheld Illinois’ exclusion of women from the practice of law) to modern sex equality cases like United States v. Virginia.

    But how does this constitutional progress occur?  It is not, I’ve suggested, the work of heroic philosopher judges, discerning the true meaning of the concept of equality.  Nor does it rely on diligent historians, uncovering the understandings of the people who ratified the Fourteenth Amendment.  It happens because social movements change the minds of the American people about what is or is not oppressive, stigmatizing, or invidious.  It is the judicial recognition of a change that occurs, first and primarily, outside the courts.

    That change is the expansion of what Attorney General Francis Biddle called “the compass of sympathy” ‒ the scope of our ability to look at others and see our shared humanity.  Social movements changed the outcome of constitutional cases by convincing Americans that those who had seemed different were not so unlike them after all; that the aspirations and desires of blacks, or women, or gays, were fundamentally the same as those of the rest of society, and that what these groups sought was not special rights or unique privilege but equality and inclusion.

  • May 4, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack College; 27-year veteran of Boston Police Department

    I applaud Marilyn Mosby's swift and decisive move in charging the six Baltimore police officers on Friday, May 1 with crimes ranging from second-degree murder to manslaughter, assault and false imprisonment, and I'm hopeful that she'll get the result that she's seeking, if that’s what the interests of justice determine is warranted.  However, I don't believe that the Baltimore officers will be convicted of any murder or manslaughter charges and that this likely result will lead to more civil unrest.  According to The Washington Post, in order to secure a guilty finding in Maryland for second degree murder in the death of Freddie Gray, (the “depraved heart” murder), the judge or jury must agree that there is proof beyond a reasonable doubt of three necessary elements for conviction: (1) that the defendant (here the police transport van driver, Officer Caesar Goodson), actually caused Freddie Gray’s death; (2) that Officer Goodson’s conduct itself posed a very high risk to endangering Gray’s life; and (3) that Goodson, aware of the risk he was causing to Gray’s life, acted with extreme disregard of the life endangering consequences of his actions.

    To secure a manslaughter conviction, even for involuntary manslaughter, prosecutors must convince a judge or a jury (and these will likely be jury trials), that the officers in Baltimore knew or should have known that their actions were a direct threat to Gray’s life and that what the police did in arresting, subduing and transporting Gray was something they knew was inherently dangerous or that it was done with a reckless disregard for human life.

    Prosecutors will face an uphill and arduous battle in securing convictions against these six police officers, even given the current climate of public skepticism, mistrust, and suspicion (and even disdain) of the police that began in earnest in Ferguson last August.  For what the police engaged in on April 12 in Baltimore, even in its violence, brutality and senselessness, was nothing if not the routine and mundane activities of the police, particularly in communities of color in cities across the United States. What happened to Gray, we may very well learn from defense counsel in the upcoming trials of the officers, was standard operating procedure (with an unintended, accidental and tragic result), perhaps even in compliance with police policy, as well as tactics and strategies that the officers were trained in, and all in a day’s work in the perilous, violent and dangerous world that the police believe that they toil in selflessly, thanklessly and courageously every day.  This is the police narrative, always and already, and one that prosecutors will need to challenge vigorously in order to secure any convictions against the “Baltimore Six.” 

  • May 1, 2015
    Guest Post

    by Atiba R. Ellis, Professor of Law, West Virginia University College of Law. Follow him on Twitter @atibaellis.

    The New York Times recently published a story entitled, “1.5 Million Missing Black Men.” The graphic portrayed how the war on drugs, American policies of mass incarceration and other structural forces, have left these African American men and their communities oppressed in the United States because these men are incarcerated, disabled from full citizenry or deceased.

    A purely academic discussion of this data and its meaning was what this blog post was supposed to be about.  But over the past weekend, we saw the city of Baltimore, Md. react to the fact that Freddie Gray is now missing forever.  Gray’s fatal injuries, inflicted during his custody of the Baltimore Police Department, provide us a specific case of an African American man going missing. Mr. Gray’s death puts into relief how one person loses his life due to the policies and structures of inequality, and the Baltimore police officers involved have now been charged in Mr. Gray’s death.

    Yet it isn’t simply Gray’s death that teaches us something about structural racism. The uprising that occurred in reaction to Gray’s funeral, the reaction to opinion leaders and the Internet opinion-sphere all teach us something about how our language regarding racism falls prey to a gap of misunderstanding and misperception. This is a multilayered problem reflective of the complicated tableau of race in America.

    On one level, Gray’s death is one more tragedy that we can add to the long list of tragedies that seem to target African American men. Gray is forever missing, along with Eric Garner, Tamir Rice, Michael Brown and many more. And, as Professor Elwood Watson points out, black women like Dr. Ersula Ore or Kathryn Johnston similarly suffer violence, abuse and death due to this same system of oppression.

    Though the factual circumstances vary, it appears that all these people I’ve named are the casualties of either the war on drugs, the effects of declaring poor minority neighborhoods “high crime neighborhoods,” police bias against people of color or all of the above.  This results in their individual and communal struggles against siege policing and its short and long-term effects. Because of these factors, these men and women lose their lives or their livelihoods in a manner not subject to due process. 

  • April 29, 2015
    Guest Post

    by Tom Nolan, Associate Professor of Criminology, Merrimack School of Education & Social Policy; 27-year veteran of Boston Police Department

    Back in the 1970s and 1980s, the “bad old days” of policing, we called them “screen tests” in the Boston police department—slamming the vehicle brakes suddenly to force a handcuffed prisoner’s head into the Plexiglas (or screen) barrier that separated the rear prisoner transport area from the front of the police vehicle.  Prisoners who flunked the “attitude test” were often administered these “screen tests.”  Apparently the equivalent referent in Baltimore is “rough ride” and in Philadelphia the “nickel ride.”  It appears as though Freddie Gray may have been subjected to a Baltimore PD “rough ride” that led to his spine being severed and to his subsequent death on April 19.

    After years of settling excessive force lawsuits against the police in Boston that resulted in significant payouts in tax dollars to plaintiffs, the Boston police department in the late 1980s and early 1990s instituted a training regimen that emphasized constitutional protections and respect for civil rights and civil liberties.  Even more importantly, police administrators conveyed the severity with which they took allegations of excessive force and police brutality in imposing unprecedented sanctions against officers found to have engaged in such practices.  Officers received suspensions without pay for months at a time; some were terminated and even sent to federal prison.  The message went out to officers in the Boston police department: Engage in excessive force practices and brutality at tangible risk to your career, your future and maybe even your liberty.  So-called “screen tests” became largely a relic of the past.

    The message apparently never made it to Baltimore (or New York City, or Cleveland, or North Charleston, or Albuquerque or Ferguson).  Although the Boston police have had their share of excessive force allegations in recent years, strict accountability and a robust disciplinary process have seen the sustention of excessive force allegations sharply curtailed.