Racial justice

  • December 9, 2016

    by Christopher Wright Durocher

    The optics were stark—12 jurors, six white men, five white women and one black man, sat in judgment of Michael Slager, the white police officer who shot and killed Walter Scott, a black man, in North Charleston, South Carolina. The results were depressingly familiar—a jury unwilling to convict a police officer for unjustified use of force. The question lingers—if prosecutors cannot secure a conviction against a police officer in a case this egregious, can they ever?

    For those who pay attention to the rare cases in which police officers face prosecution for their use of force, the result was eerily similar to the case again University of Cincinnati police officer Ray Tensing. Less than a month ago, Tensing's trial also ended when a predominantly white jury in Ohio—six white men, four white women and two black women—were unable to reach a verdict in his trial for killing Sam DuBose, an unarmed black motorist.

    The disturbing video evidence in the killings of Scott and DuBose, along with the other evidence presented at the trials, make the inability of the juries to reach a guilty verdict difficult to fathom. That is, until you consider who was actually sitting on those juries and what they were being asked to decide. 

    Both juries failed to adequately reflect the racial diversity of the communities from which they were selected. In Slager’s case, his attorney successfully struck seven people of color from the jury pool, leaving only one black juror, even though North Charleston’s population is 47 percent black.  In Tensing’s case, not only was the jury predominantly white, but reports indicate that four jurors agreed with the statement from the juror questionnaire that “Some races and/or ethnic groups tend to be more violent than others.”

  • October 28, 2016
    Guest Post

    by Erwin Chemerinsky, Dean and Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law.  Co-counsel for City of Miami in Bank of America v. City of Miami and Wells Fargo v. City of Miami

    On Tuesday, Nov. 8, the Supreme Court will hear oral arguments in two significant civil rights cases that raise the question of whether a city can sue to enforce the Fair Housing Act. Bank of America v. City of Miami and Wells Fargo v. City of Miami concern whether a city has standing to sue to challenge discriminatory lending practices of banks. The Court should follow well-established law in this area and allow these suits to go forward.

    The Fair Housing Act, adopted in 1968, not long after the death of Dr. Martin Luther King, Jr., broadly prohibits race discrimination in housing. As the Supreme Court noted just two years ago in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, that the law represents Congress’s response to economic and social forces that “left minority families concentrated in the center of the Nation’s cities,” where “residential segregation and unequal housing and economic conditions” resulted in “neighborhoods marked by substandard housing and general urban blight.” The Act declares the “policy of the United States to provide, within constitutional limitations, for fair housing throughout the United States.”

    The Act makes it unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race [...] or national origin.” It also forbids discrimination by “any person or other entity whose business includes engaging in residential real estate-related transactions […] in making available such a transaction, or in the terms or conditions of such a transaction, because of race […] or national origin.” Two years ago, in Texas Department of Housing and Community Affairs, the Court held that the Act prohibits practices that have a racially discriminatory impact.

  • October 19, 2016
    Guest Post

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

    The statement from the International Association of Chiefs of Police (IACP) at their annual conference in San Diego has been described as “historic” and “significant” in acknowledging and apologizing for “actions of the past and the role that our profession has played in society’s historical mistreatment of communities of color.”  This apology is “historical” in coming from an organization that has long remained mute in the face of the oppression, racism, discrimination, violence and criminal wrongdoing that have characterized policing for many black and brown men and women in the United States. 

    Terrence Cunningham, the IACP President, offered, “There have been times when law enforcement officers…have been the face of oppression for far too many of our fellow citizens,” but “that this is no longer the case.” (Author emphasis). And so, according to Cunningham, “today’s officers are not to blame for the injustices of the past,” as if what has gone on in Baltimore; Ferguson, Missouri; Chicago; New York City; Cleveland; Waller County, Texas; North Charleston, South Carolina; Washington, DC; Charlotte, North Carolina; Baton Rouge; Tulsa; and Falcon Heights, Minnesota, since 2014, is some distant, forgettable and forgivable part of the history of long ago and far away. 

    Observers and commentators have called Cunningham’s remarks a commendable first step and it is. And one should acknowledge that the IACP necessarily needs to frame its “apology” in terms that are palatable to the 800,000 law enforcement officers who work in the 18,000 law enforcement agencies in the United States. Words need to be chosen very carefully so as not to offend the sensitivies of the members of the Fraternal Order of Police (FOP) who are suffering the debilitating symptoms of the so-called “Ferguson Effect,” while simultaneously fighting the so-called “War on Cops.” 

  • October 12, 2016
    Guest Post

    by Matthew Stanford,  Senior Law Student at the University of California, Berkeley School of Law; Articles & Essays Editor of the California Law Review and President of the ACS Student Chapter at the University of California, Berkeley School of Law

    To the surprise of no one, the first presidential debate was short on substance, long on bluster. But one real issue that emerged from the spin-induced haze was the constitutionality of “stop-and-frisk.”

    During the debate, moderator Lester Holt suggested that the controversial and long used police practice of stopping people on the street and patting them down for weapons had been deemed “unconstitutional in New York, because it largely singled out black and Hispanic young men.”

    An onslaught of Trump and Clinton surrogates followed with their respective positions on the constitutional upshot of U.S. District Court Judge Shira A. Scheindlin’s 2013 decision.

    Prognostications about the narrow ruling’s certain demise on appeal––that is, if the appeal had continued to fruition––inevitably led to accusations of moderator bias. Most notably, former New York Mayor Rudy Giuliani penned an op-ed suggesting that the Second Circuit’s removal of Judge Scheindlin from the case amounted to a reversal of her underlying ruling. To be sure, that logic is flawed: removing a judge is an administrative decision, not a ruling on the merits.

    But a more disturbing trend has emerged from the week’s stop-and-frisk chatter. Far from discussing the merits of the decades-old doctrine that allows police discretion to stop people on the street, the campaigns prefer instead to carry on with the punch and parry about moderator bias and candidate performance––sacrificing yet another critical discussion on the altar of media ratings that has come to define contemporary electoral culture.

  • October 10, 2016

    by Christopher Durocher

    Nearly a decade ago, the Supreme Court held that it is unconstitutional to take race into account in assigning students to particular schools, even if the goal is to integrate those schools. Chief Justice John Robert’s opinion for the majority dismantled two school districts’ desegregation plans and erected a roadblock to the legacy of Brown v. Board of Education. He justified the Court’s holding with the solipsistic truism that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” Two cases before the Supreme Court this term present the type of undeniable, explicit racial discrimination that speak directly to the Chief Justice’s colorblind philosophy. How the Court handles these questions of racism will determine the fate of two men and will also highlight the Court’s repeated unwillingness to acknowledge the implicit racism that infects our criminal justice system.

    Pena Rodriguez v. Colorado and Buck v. Davis are cases that in many ways could not be more distinct. Miguel Angel Pena Rodriguez was convicted of three misdemeanors for allegedly attempting to grope two teenage girls. Dwayne Buck was convicted of murder. Mr. Pena Rodriguez was sentenced to two years’ probation and required to register as a sex offender. Mr. Buck was sentenced to death. What they do share are juries that were both infected with explicit appeals to racist stereotypes, which in turn fatally compromised the deliberation process.

    In Mr. Buck’s case, during the penalty phase of the trial his own attorney called an expert witness, Dr. Walter Quijano, who testified that Mr. Buck was more likely to commit crimes in the future because he is Black. In Texas, where Mr. Buck was tried, future dangerousness is an element the jury must unanimously find in order to impose the death penalty. The prosecutor then exploited the expert’s testimony in his closing arguments to convince the jury that Mr. Buck was too dangerous to have his life spared. The jury returned a sentence of death.

    In Pena Rodriguez, the jury was in the midst of heated deliberations, when, according to two jurors’ affidavits, one member of the jury who identified himself as a former law enforcement officer, made a series of racist comments. These included observations that the defendant likely committed the crime because where the juror “used to patrol, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls.” The juror also dismissed an alibi witness, who was also Latinx, because the juror claimed that the witness was an illegal immigrant, though the witness was in fact a legal resident. The jury was unable to reach a verdict on a felony charge, but found Mr. Pena Rodriguez guilty of three misdemeanors.