Racial justice

  • June 19, 2017
    Guest Post

    *This piece originally appeared on JOTWELL.

    by SpearIt, Associate Professor of Law, Thurgood Marshall School of Law

    Devon W. Carbado, From Stopping Black People to Killing Black People: The Fourth Amendment Pathways to Police Violence, 105 Cal. L. Rev. 125 (2017), available at SSRN.

    Why is it so easy for police to kill Black people?

    The answer to this question is urgent in light of ongoing police violence across the country. Virulent videos of Blacks subjected to police aggression have spread nationwide by phones, computers, TVs and tablets. These troubling, yet spectacular visuals, have pulled the covers back to allow mainstream America to see the dark and ruthless nature of law enforcement. Unarmed Blacks have senselessly died by strangling, tasing, and shooting in the back at the hands of police. Recently reported was an unarmed man shot despite his being on the ground with hands raised in surrender. Another was reportedly killed despite lawfully carrying a firearm. The ample proof of police wrongdoing raises alarming flags about the status quo, where police killing of Blacks is prevalent and successful prosecution of police is not.

    In this article, Devon Carbado offers a compelling answer. He asserts that Fourth Amendment doctrine paves a path for police to engage civilians, especially Blacks, in ways that escalate into violence and death. Police officers are embodied with various levels of discretion in their enforcement efforts, and can be motivated by social motives, including cultural biases. Carbado shows, with meticulous detail, how Fourth Amendment doctrine leaves racism virtually unchecked in policing practices. Rulings by the Supreme Court on search and seizure make it clear that where police have a pretext to stop a person on the street or in a vehicle, the seizure is lawful so long as the officer has a requisite level of suspicion to make the stop. That there is little constitutionally to curb the police’s use of discretionary power when choosing one person over another puts a sarcastic twist on the meaning of “con” law.

  • December 29, 2016
    Guest Post

    by Christopher Kang, ACS Board Member and National Director of the National Council of Asian Pacific Americans

    Supporters of Sen. Jeff Sessions’s nomination to become attorney general defend his civil rights record by pointing to his role in passing the Fair Sentencing Act, which reduced the disparity between sentences for crack and powder cocaine offenses. In the context of Sen. Sessions’s overall civil rights record and his opposition to criminal justice reform, even full-throated leadership on this issue would not be enough to overcome concerns about him becoming our nation’s top law enforcement officer, but given efforts to use this law to deflect from that overall record, a closer look is necessary. I was the lead White House legislative affairs staffer on the Fair Sentencing Act and I can tell you that Sen. Sessions’s efforts were only somewhat helpful—and since then have been a far cry from leadership.

    Background and History

    In 1986, Congress established new sentences for cocaine offenses: possession of five grams of crack cocaine (roughly the weight of two sugar cubes) triggered a mandatory minimum five-year sentence, while trafficking 500 grams (approximately one pound) of powder cocaine triggered the same sentence. This disparity was often referred to as a 100:1 ratio and because more than 80 percent of crack cocaine offenders have been African American, the disparity has had an undeniable racial impact.

    In 2001, Sen. Sessions introduced legislation to reduce this disparity to 20:1. However, his approach was to only slightly increase the amount of crack cocaine necessary to trigger a mandatory minimum sentence—and to couple that with decreasing the amount of powder cocaine necessary to trigger a mandatory minimum sentence.

  • 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.”