50 Years After March on Washington, A New Dream

Tomorrow marks the fiftieth anniversary of the March on Washington for Jobs and Freedom. On Saturday, thousands marched on Washington to commemorate the anniversary. I’ll be attending the events in D.C. For me, one of the most important dreams to shine a light on is the one to end mass incarceration, what some have referred to as the “new Jim Crow.” This short video (11:52 – h/t Julie Netherland) explains more about the problem of mass incarceration and what one man in Dothan, Alabama is doing to address it:

Broken on All Sides: New Documentary about Race and Criminal Justice

Matthew Pillischer has just completed a new documentary about race and criminal justice in that is worth checking out. Here’s a trailer for the film (6:58):

The film includes an interview with Michelle Alexander, author of The New Jim Crow, which we’ve written about here before. While most third year law students are busy studying for the bar exam, Matthew Pillischer found time to produce and direct a documentary film about this important social justice issue. I don’t know how he did that, but I’m glad he did as his film promises to bring this important issue to a much wider audience.

Retired Supreme Court Justice: Capital Punishment ‘Shot Through with Racism’

The New York Times is reporting that retired Supreme Court Justice Stevens has written an essay that offers a devastating critique of the death penalty as “shot through with racism.”  In a detailed, candid and critical essay to be published soon in The New York Review of Books, Stevens wrote that personnel changes on the court, coupled with “regrettable judicial activism,” had created a system of capital punishment that is “shot through with racism, skewed toward conviction, infected with politics and tinged with hysteria.”  While other justices (e.g. O’Connor and Souter) have offered some commentary since retiring, their rather abstract discussions of legal issues is, apparently, nothing like the blow-by-blow critique in Justice Stevens’ death penalty essay, which will be published in The New York Review’s Dec. 23 issue and will be available on its Web site on Sunday evening.

In 2008, two years before he announced his retirement, Justice Stevens reversed course and in a concurrence said that he now believed the death penalty to be unconstitutional.  But the reason for that change of heart, after more than three decades on the court and some 1,100 executions, has in many ways remained a mystery, and now Justice Stevens has provided an explanation.  He will also be on “60 Minutes” on Sunday night.

The essay is actually a review of the book Peculiar Institution: America’s Death Penalty in an Age of Abolition, by David Garland, a professor of law and sociology at New York University. The book compares American and European approaches to the death penalty, and in the essay Stevens appears to accept its major conclusions.  Garland attributes American enthusiasm for capital punishment to politics and a cultural fascination with violence and death.  According to the New York Times article, Stevens notes that the problems with the administration of capital punishment extend beyond the courthouse and into the voting booth.  Referring to the “race-based prosecutorial decisions” allowed by the 1987 McCleskey v. Kemp, ruling that even solid statistical evidence of racial disparities in the administration of the death penalty did not violate the Constitution, Stevens wrote:

“That the murder of black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.”

This bold move by a retired Supreme Court Justice is good news for those concerned with the injustice of capital punishment.

Oscar Grant Trial Begins: No African Americans on Jury

The shooting of Oscar Grant, an African American man, while he was handcuffed and lying face down on a train platform by a white Bay Area Rapid Transit (BART) cop in January, 2009 sparked renewed attention on the racial injustice system that some are calling the New Jim Crow.  This past week the trial of Johannes Mehserle started and the jury selection process seems to illustrate the (unconscious) and systemic racism in criminal law. The result: there are no African Americans on the jury in a trial of a white cop accused of killing an unarmed, handcuffed black man.   While some are suggesting that this trial breaks new ground because of the video footage from cellphones of bystanders who witnessed the shooting, the jury selection process suggests that this is another manifestation of the racial caste system.

(image from Flickr/cc: hensever)

Officially, it is against the law to discriminate on the basis of race in the process of jury selection.  In 1986, the Supreme Court in the Batson v. Kentucky decision, found that the Fourteenth Amendment prohibits prosecutors from discriminating on the basis of race when selecting juries.

Unofficially, however, racial bias in jury selection is rampant.  And, the Supreme Court and lower courts have tolerated all but the most egregious example of racial bias in jury selection, and this is usually put in practice through something called “peremptory strikes.”    Both prosecutors and defense attorneys are permitted to strike ‘peremptorily’ jurors they don’t like — that is, people they believe won’t respond favorably to the evidence or witnesses they intend to present at trial.  What this means in practice is that peremptory strikes are notoriously discriminatory.  In addition, jury pools tend to be disproportionately white for a number of reasons, including the felony-disenfranchisement laws that permanently exclude 30% of men from jury service for life.  Thus, the practice of systematically excluding black jurors has not been stopped by the Batson v. Kentucky decision.  What the law requires is that the prosecution must come up with a race-neutral, or “color blind,” excuse for who they exclude from the jury, which is an exceedingly easy thing to do.    (M.Alexander, The New Jim Crow, New York: The New Press, 2010, pp.116-120).

This trial brings with it a mix of feelings from powerlessness to a strong desire to see justice prevail.   Dr. Boyce Watkins sums up this when he writes:

What’s most egregious about cases like this one is the sense of powerlessness that many in the black community feel, when one of our own is killed by police in what appears to be a highly questionable situation. Police are not accustomed to having their authority questioned, and some of us forget that officers are human like the rest of us, often carrying a temptation to abuse their authority. Unless a reasonable explanation can be provided regarding why this officer shot an unarmed young man in the back, there is no reason for anyone to believe the officers should be found innocent. Let’s hope these jurors do the right thing.

I, too, hope the jurors do the right thing.   I wouldn’t say that I’m optimistic about that happening.