Moving the Pendulum to Justice, Fairness & Accountability

Presentation for: Eighth Annual Conclave on Diversity Criminal Law Session Louisiana State Bar Association New Orleans, Louisiana March 6, 2015

Presentation by: Angela A. Allen-Bell, Esq. Southern University Law Center Assistant Professor of Legal Writing & Analysis [email protected]

I. Understanding & Confronting the Complexities 1. Police Violence & Minority Communities: . In a 1965 debate, James Baldwin remarked that many members of law enforcement in Southern regions used clubs, guns and cattle prods on African American citizens. He continued: “The government says they can’t do anything about it. If it were white people or white children [being a victim of this], the government could do something about it.”1

. The Black Panther Party formed in 1968. One of their demands was “an immediate end to police brutality and the murder of black people.”2

2. The racial divide: . “It is a terrible thing for an entire people to surrender to the notion that 1/9th of its population is beneath them and, until that moment…comes, when we, the…American people, are able to accept the fact that…we are trying to forge a new identity for which we need each other; that [African Americans are] not…ward[s] of America [nor]…object[s] [of]…missionary charity. [African Americans are]…the people who built the county. Until this moment, there is scarcely any hope for the American dream because the people who are denied participation in it, by their very presence, will wreck it, and, if that happens it is a very grave moment for the West.”3

. “What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it….it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don’t. Rather than rely on race, we use our criminal justice system

1 Leo Sands, 50 Years Since Historic Civil Rights Debate at Cambridge Union, VARSITY, Feb 18, 2015, available at http://www.varsity.co.uk/news/8295#.VOYQv3Zo6wc.email (last visited Feb. 21, 2015) (1954 civil rights debate between James Baldwin and William F. Buckley answering “has the American Dream been achieved at the expense of the American Negro?”).

2 See Redress for Historical Injustices in the United States On Reparations for Slavery, Jim Crow, and Their Legacies 585 (Michael T. Martin & Marilyn Yaquinto eds., 2007) (referencing the Black Panther Party Ten Point Program, What We Want What We Believe).

3 Sands, supra, note 1.

to label people of color ‘criminals’ and then engage in all the practice we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all ways that it was once legal to discriminate against African Americans. Once you’re labeled a felon, the old forms of discrimination—employment discrimination, housing discrimination, denial of the right to public benefits, and exclusion from jury service—are suddenly legal. As a criminal, you have scarcely less rights, and arguably less respect, than a black man living in Alabama at the height of Jim Crow. We have not ended racial caste in America; we have merely redesigned it.”4

3. Race & The Criminal Justice System: . “While minorities have a higher rate of criminal activity in some crime categories, this does not explain why minority defendants who commit the same crimes and have the same criminal history as white defendants are more likely to be denied pretrial release and are sentenced more harshly.”5

. “Under the current state of the law…even if a criminal defendant could access data and prove that he or she is in a class of minority defendants adversely (and disproportionately) affected by a policy or practice, it is unlikely that the defendant could successfully use the existence of the racial disparity as grounds for relief from the government's actions.”6

4. Group Impact: . James Baldwin said: “When I was growing up, I was taught that Africa had no history and neither did I; that I was a savage about whom the less said the better—who had been saved by Europe and brought to America. Of course, I believed it. I didn’t have much choice. Those were the only books there were. Everyone seemed to agree.”7

4 Michelle Alexander, The New Jim Crow Mass Incarceration in the Age of Colorblindness 2 (2010).

5 Cynthia Jones, Confronting Race in the Criminal Justice System The ABA’s Racial Justice Improvement Project, 27 Sum Crim. Just 12, 12 (2012).

6 See id. at 12-13 (2012).

7 Sands, supra, note 3.

. The psychological harm inflicted by the era of terror lynching extends to the millions of white men, women, and children who instigated, attended, celebrated, and internalized these horrific spectacles of collective violence. Participation in collective violence leaves perpetrators with their own dangerous and persistent damage, including harmful defense mechanisms such as ‘diminish[ed] empathy for victims’ that can lead to intensified violent behaviors that target victims outside the original group. Lynching was a civic duty of white Southern men that brought them praise. Southern white children were taught to embrace traumatic violence and the racist narratives underlying it. 8

II. Race, Bias & Policy Making

1. We are not in a post-racial era:

. “[I]t was not until 1978, some 82 years after the infamous Plessy v. Ferguson Supreme Court decision upholding the legality of segregation in Louisiana and throughout the Jim Crow South, that Robert Collins of New Orleans became the first African-American federal judge in the Deep South.”9

. This data was recently presented to the United Nations Committee on the Elimination of Racial Discrimination: 10

8 Equal Justice Initiative, Lynching in America: Confronting the Legacy of Racial Terror 23 (2015), aavailable at http://www.nytimes.com/2015/02/19/opinion/lynching-in-america-a-grim- history.html?_r=0 (last visited March 1, 2015).

9 Marc H. Morial, More Diversity on Federal Bench: Now is the Time, 56 La. B.J. 438, 439 (2009).

10 Racial Justice Now, Status of Descendants of Africans Enslaved in the United States Response to the Periodic Report of the United States of June 12, 2013 to the United Nations Committee on the Elimination of Racial Discrimination, 17 (June 12, 2013), available at http://www.racism.org/index.php?option=com_content&view=article&id=1819:status-of-descendants- of-africans-enslaved-in-the-united-states-daeus&catid=156:cerd&Itemid=160 (last visited Feb. 26, 2015).

. In the words of Sherrilyn A. Ifill, President and Director-Counsel of NAACP Legal Defense and Education Fund:

It is the 50th anniversary of the Civil Rights Act of 1964. It is the 50th anniversary of Freedom Summer. And it is the 60th anniversary of the Supreme Court’s decision in Brown v. Board of Education….What that means…in all of our diversity, in all of our cosmopolitan sophistication…is that this country as you and I have been privileged to know it, is less than 60 years old. As a society in which the principle of equality has true legal meaning, a society without a legally enforced racial caste system, we are less than 60 years old...America is, in essence, an equality teenager. And you remember how you were when you were a teenager. Given to outbursts of frustration and anger. Questioning and not fully appreciating the values that shaped you. Engaging in magical and grandiose thinking – believing that you could be successful without hard work. And underneath it all insecurity and fear of the future. This is America when it comes to race and equality. We are immature, but most assuredly growing up….It is not, as some have said, because we are going backward. It is precisely because we are going forward and because that way forward is new and

unchartered territory for this country that our conflicts have arisen….11

2. Illustrations to Consider a. School-to-prison pipeline and zero tolerance policies.

“The school-to-prison pipeline starts (or is best avoided) in the classroom. When combined with zero-tolerance policies, a teacher’s decision to refer students for punishment can mean they are pushed out of the classroom—and much more likely to be introduced into the criminal justice system….Students from two groups—racial minorities and children with disabilities—are disproportionately represented in the school-to-prison pipeline. African-American students, for instance, are 3.5 times more likely than their white classmates to be suspended or expelled….”12

b. Solitary confinement.13 Special Rapporteur Mendez, using the Louisiana case of the Angola 3 (African American men believed to be held in solitary confinement longer than anyone else in the nation), expressed:

This is a sad case and it is not over….The co-accused, Mr. Woodfox, remains in solitary confinement pending an appeal to the federal court and has been kept in isolation in a 8-foot-by-12 foot…cell for up to 23 hours per day, with just one hour of exercise or solitary recreation. Keeping Albert Woodfox in solitary confinement for more than four decades clearly amounts to torture and it should be lifted immediately….The circumstances of the incarceration of the

11 Sherrilyn A. Ifill, President and Director-Counsel of NAACP Legal Defense and Education Fund, NYU Law School Graduation Address: We’re All Civil Rights Lawyers Now (May 22, 2014), available at http://www.naacpldf.org/press-release/ifill-addresses-nyu-law-school-graduates (last visited June 3, 2014).

12 Marilyn Elias, The School-to-Prison Pipeline, TEACHING TOLERANCE, 39-40 (2013), available at http://www.tolerance.org/magazine/number-43-spring-2013/school-to-prison (last visited March 1, 2015).

13 Louisiana does not appear to be in compliance with the ABA Standards. See ABA Standards for Criminal Justice: Treatment of Prisoners, Standards 23-2.7, 23-2.9, 23-3.8 (2011), available at http://www.americanbar.org/publications/criminal_justice_section_archive/crimjust_standards_tre atmentprisoners.html#23-3.8 (last visited Feb. 26, 2015)

so-called Angola Three clearly show that the use of solitary confinement in the US penitentiary system goes far beyond what is acceptable under international human rights law. 14

c. The War on Drugs. “[T]here is no truth to the notion that the War on Drugs was launched in response to crack cocaine. President Ronald Reagan officially announced the current drug war in 1982, before crack became an issue in the media or a crisis in poor black neighborhoods…The Reagan administration hired staff to publicize the emergence of crack cocaine in 1985 as part of a strategic effort to build public and legislative support for the war…The media bonanza surrounding the ‘new demon drug’ helped to catapult the War on Drugs from an ambitious federal policy to an actual war.”15

d. Transitional justice. . “Georgia, Mississippi, and Louisiana had the highest absolute number of African American lynching victims [between 1877-1950]….and of all lynchings committed after 1900, only 1 percent resulted in a lyncher being convicted of a criminal oﬀense.”16

. With the declassification of documents, some members of the Black Panther Party have been able to realize freedom, but there are still some wrongfully incarcerated as a result of their activism during the civil rights era.17

14 See Juan E. Mendez, Special Rapporteur on Torture, Four Decades in Solitary Confinement Can Only be Described as Torture, United Nations (Oct. 7, 2013), available at http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=13832&LangID=E (last visited Feb. 24, 2015).

15 Alexander, supra note 4 at 5.

16 Equal Justice Initiative, supra note 8 at 15-18.

17 See JASMINE GUY, EVOLUTION OF A REVOLUTIONARY 115-119 (2004) (wherein BPP member Afeni Shakur discusses the Panther 21 trial where thirteen Panthers stood trial for nine months and was acquitted in two hours); See also Susie Day, Real, Real Comrades: What 43+ Years of Prison Mean to Eddie Conway and Paul Coates, available at http://truth-out.org/opinion/item/24342-real-real-comrades-what-43-years- of-prison-mean-to-eddie-conway-and-paul-coates (last visited Jan. 6, 2014) (Discussing Marshall “Eddie” Conway, a BPP leader, who was falsely implicated in the murder of a Baltimore City police officer and falsely

e. Criminalization by Race

1. Groups . Activist Lawyers Many held in contempt or brought up on disciplinary charges due to assertions of discrimination or representation of clients attached to racial causes.18

. Rioters and protesters

imprisoned for over forty-three years); See also Elmer “Geronimo” Pratt, a BPP leader, was falsely imprisoned for over twenty-seven years See generally, In re Pratt, 112 Cal.App.3d 795 (Cal.App. 2 Dist. Dec 03, 1980); Richard Moore Diruba was falsely imprisoned for nineteen years. See City Settles With Panther, ORLANDO SENTINNEL, Dec. 9, 2000, at http://articles.orlandosentinel.com/2000-12- 09/news/0012090285_1_black-panther-richard-moore-trial-in-federal (last visited June 25, 2014) (Disclosing a $490,000 settlement made on the eve of a trial); See generally WARD CHURCHILL & JIM VANDER WALL, AGENTS OF REPRESSION THE FBI’S SECRET WAR AGAINST THE BLACK PANTHER PARTY AND THE AMERICAN INDIAN MOVEMENT 44-52 (2002); See also WARD CHURCHILL & JIM VANDER WALL, THE COINTELPRO PAPERS 112 (1990) (mentioning J. Edgar Hoover’s suggestion that a “deliberate false arrest” campaign be used a method of neutralization); See also Alan Feuer, Defiant Ex-Black Panther Sues Defiant New York Police, N.Y. TIMES, Dec. 4, 2000, available at http://www.nytimes.com/2000/12/04/nyregion/defiant-ex-black- panther-sues-defiant-new-york-police.html (last visited July 12, 2014) (discussing two failed attempts to convict BPP member Richard Moore (also known as Dhoruba al-Mujahid bin Wahad) for shooting two New York Police before he was finally convicted at the third trial in 1973 and noting that he served nearly nineteen years before having that conviction overturned and revealing a subsequent civil settlement in 2000); See also Alan Feuer, Defiant Ex-Black Panther Sues Defiant New York Police, N.Y. TIMES, Dec. 4, 2000, available at http://www.nytimes.com/2000/12/04/nyregion/defiant-ex-black-panther-sues- defiant-new-york-police.html (last visited Dec. 29, 2014) (referencing a $400,000.00 settlement−that took twenty years− between the FBI and BPP member Richard Moore who serve nineteen years in prison after being framed for murder); See also Bobby Seale, Founding Chairman & National Organizer of the Black Panther Party, To Produce A Film Portraying His Life Story, BLACKNEWS.COM, March 21, 2013, available at http://www.blacknews.com/news/bobby_seale_black_panthers_seize_the_time_film101.shtml#.VLmG eE05CUk (last visited Jan. 15, 2015) (Quoting BPP co-founder as saying “most people don't know that we won 95 % of our courtroom cases."); See generally Jeeffrey Haas, THE ASSASSINATION OF FRED HAMPTON (2010).

18 See generally Adjoa Artis Aiyetoro, Can We Talk? How Triggers for Unconscious Racism Strengthen The Importnace of Dialogue, 22 Nat’l Black L.J. 1 (2009); See generally Jeeffrey Haas, THE ASSASSINATION OF FRED HAMPTON (2010).

2. Media

Professor of media & public affairs at George Washington University Robert Entman warns of these media trends:19

Blacks and Latinos are more likely than whites to appear as lawbreakers in the news - particularly when the news is focusing on violent crime.

Whites are overrepresented as victims of violence and as law- enforcers, while blacks are underrepresented in these sympathetic roles.

Blacks in criminal roles tend to outnumber blacks in socially positive roles in newscasts and daily newspapers.

Depictions of black suspects...tend to be more symbolically threatening than those of whites accused of similar crimes....blacks were twice as likely as whites to be shown under some form of physical restraint by police - although all were accused of scary and generally violent crimes.

Black victims are less likely to be covered than white victims in newspaper coverage of crime.

3. Mass Incarceration . “Mass incarceration—not attacks on affirmative action or lax civil rights enforcement—is the most damaging manifestation of the backlash against the Civil Rights Movement.” 20

. One of the great problems we face today is mass incarceration, a tragedy which has been powerfully documented. With almost 1 in 100 American adults locked away behind bars, our incarceration rate is the world’s highest — nine to ten times

19 See Brian Powell, Fox News' Racial Crime Coverage Is Hurting People, MediaMattersBlogf (Aug. 23, 2013), available at http://mediamatters.org/blog/2013/08/23/fox-news-racial-crime-coverage-is- hurting-peopl/195567 (last visited Feb. 28, 2015).

20 Alexander, supra note 15 at 11 (2010).

that of many European countries. This adds up to an overwhelming 2.3 million people in prison and jail today — nearly 40 percent of whom are African American. Yet lawmakers are slow to take action and public outrage is largely absent.

This prodigious rate of incarceration is not only inhumane, it is economic folly. How many people sit needlessly in prison when, in a more rational system, they could be contributing to our economy? And, once out of prison, how many people face a lifetime of depressed economic prospects? When 1 in 28 children has a parent in prison, the cycle of poverty and unequal opportunity continues a tragic waste of human potential for generations.

Americans spend $260 billion every year on criminal justice. That is more than one-quarter of the national deficit. A year in prison can cost more than a year at Harvard. This is not a hallmark of a well- performing economy and society. ***** At today’s high incarceration rates, continuing to incarcerate more people has almost no effect on reducing crime.21

4.Death Sentences & Sentencing in General

Race remains a signiﬁcant factor in capital sentencing. African Americans make up less than 13 percent of the nation’s population, but nearly 42 percent of those currently on death row in America are black, and 34 percent of those executed since 1976 have been black. In 96 percent of states where researchers have completed studies examining the relationship between race and the death penalty, results reveal a pattern of discrimination based on the race of the victim, the race of the defendant, or both. Capital trials today remain proceedings with little racial diversity; the accused is often the only person of color in the

21 Oliver Roeder, Lauren-Brooke Eisen, Julia Bowling & Brennan Center for Justice, What Caused The Crime Decline? 1 (Feb 12, 2015) (citations omitted), available at https://www.brennancenter.org/publication/what-caused-crime-decline#Foreword (last visited March 1, 2015).

courtroom and illegal racial discrimination in jury selection is widespread, especially in the South and in capital cases. 22

f. Why Diversity Matters . “[A] diverse judiciary is essential to the dispensation of colorblind justice. 23

. “[A] key benefit of diversity in the criminal justice system is the increase in the accessibility of the system…with the increasing diversity of lawyers practicing in the criminal field, those in society from diverse backgrounds will less often be left baffled and without satisfactory answers. Rather, through their lawyers they will be able to become participants in the criminal justice system and, as such, shape the direction of its future.”24

g. Professional Obligations & Call to Action

. Refuse to “engage in disengagement.”25 “Shallow understanding from people of good will is more frustrating than absolute misunderstanding from people of ill will. Lukewarm acceptance is much more bewildering than outright rejection.”26

. “Martin Luther King, Jr. called for us to be love struck with each other, not colorblind toward each other.”27

. To exercise discernment where the media is concerned.

22 Equal Justice Initiative, supra note 16 at 21.

23 Morial, supra note 10 at 439.

24 Jason A. Coe, The Role of Diversity in the Criminal Justice System, 33-JUN Champion 62 (2009).

25 Reassessing Solitary Confinement II: The Human Rights, Fiscal, and Public Safety Consequences: Hearing Before the Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Human Rights 113 Cong. 10 (Feb. 25, 2014) (statement of Angela A. Allen-Bell).

26 Martin Luther King, Jr., Why We Can't Wait 97 (1963) (Citing from his April 16, 1963 Letter from Birmingham Jail).

27Alexander, supra note 20 at x (quoting Cornel West, author of the foreword to the book).

. To know, recognize and check bias.

. To understand the far reaching implications of policies before implementation.

. To recognize that “public discussion is a political duty.”28

. To embrace the notion that lawyers have a “duty, when necessary, to challenge the rectitude of official action.”29

. To pursue justice on local, national and transitional levels—“Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects of directly, affects all indirectly…Anyone who lives inside the United States can never be considered an outsider anywhere within the bounds.”30

28 Whitney v. California, 274 U.S. 357, 375 (U.S.Cal., 1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (U.S.Ohio 1969).

29 See MODEL RULES OF PROF’L CONDUCT PREAMBLE 5.

30 King, supra note 26 at 87.