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Undoing Past Wrongs: Chipping Away at Capital Punishment
By Hira Baig Associate Editor, Volume 23 The vast majority of countries, 140 to be exact, consider the death penalty cruel and unusual punishment.[1] The current constitution of Germany, for example, forbids use of capital punishment.[2] Lawyer and activist Bryan Stevenson comments on this policy choice by suggesting there is a connection between Germany’s consciousness of its history and its refusal to use the death penalty.[3] It would be harrowing, after all, for the German government to have a criminal punishment that facilitates the state-sanctioned killing of people after the Holocaust. America, on the other hand, turns a blind eye to its history. Celebrating civil rights leaders and electing a black president does not rid this country of its past sins—especially if those sins are manifesting today in different form. The grave inequality between the races was embedded into our Constitution and our laws. While the Constitution created a form of government for “the people,” it was used for over a century to uphold slavery. Once formal slavery was abolished by the Thirteenth Amendment, the Constitution was used to justify discriminatory treatment, Jim Crow, and today, it is used to embolden our system of mass incarceration. The Constitution also upholds use of the death penalty.[4] The killing of mostly black men is not a violation of the Eighth Amendment, which ought to protect people from cruel and unusual punishment.[5] And in southern states, black defendants are 22 times more likely to get the death penalty if the alleged victim is white.[6] In my home-state of Texas, juries can still sentence mentally ill offenders to death. Texas has one of the busiest death rows in the country, and recently, a lawmaker filed a bill that might curtail use of this punishment.[7] This bill limits the maximum punishment for mentally ill people to life in prison without parole. Mitigating use of the death penalty ought to be considered a valiant effort. After all, Texas uses the death penalty more than any other state.[8]
Clearing the Smoke: Marijuana Reform is a Racial Justice Issue
By David Bergh Associate Editor, Volume 23 Over the past few decades there has been a sea change in the American public’s attitude towards marijuana prohibition. In 1990 only 16% of the US public supported legalization, and 81% were opposed. Twenty seven years later the numbers were 61% in favor of legalization and 37% against.[1] This tectonic shift in opinion is reflected in the fact that there are now 29 states, including Michigan, with medical marijuana programs.[2] Additionally, nine states and the District of Columbia have legalized the recreational use of marijuana.[3] Michigan looks set to join the recreational club this November, as the Michigan Marijuana Legalization Initiative is all but certain to appear on ballots for the 2018 election.[4] The ballot initiative proposes to legalize the recreational use of marijuana for persons 21 and older. Those wishing to sell or produce recreational marijuana will need to obtain a license from the state, and local governments will be able to decide if they want to allow recreational marijuana business within their borders.[5] While the passage of the Michigan Marijuana Legalization Initiative would be a step forward towards addressing the racially disparate impact of the War on Drugs, the proposed Act is no panacea. The movement toward legalization and the public’s growing acceptance of marijuana has thrown the racialized impact of the War on Drugs into sharp relief. On one hand the New York Times trumpets the investment opportunities that the legalization movement has created,[6] and white millennials flock to “ganja yoga” classes in San Francisco.[7] On the other hand Black Americans continue to bear the brunt of drug enforcement, with a police raid on a birthday party in Georgia that led to the arrest of 63 people for less than an ounce of marijuana being only the most recent and widely reported example.[8] So far, neither the nation’s changing marijuana laws, or the shift in public opinion have had a positive effect on the War on Drugs. Marijuana arrests rose in absolute terms from 2000 to 2013, and Blacks are still nearly four times to be arrested for marijuana possession than whites, despite nearly identical rates of usage.[9] This disparity in the treatment of marijuana use is particularly severe in some parts of Michigan, with Black residents of Monroe, St. Clair and Jackson counties being 15 times more likely to be arrested for marijuana possession than their white peers.[10] This reflects the fact that Michigan’s prison population is majority-minority, despite non-Hispanic whites accounting for more than 75% of the state’s population.[11] Even discounting a jail sentence, the effects of a marijuana arrest can be serious and long-lasting. Having a possession arrest on your record can affect custodial rights, public benefits, financial aid for college, and employment prospects, as having any criminal record, even for a minor drug arrest, cuts a job applicant’s chances of getting a call-back in half.[12]
Without My Consent: The Eradication of Protective Consent Decrees
By Rasheed Stewart Associate Editor, Volume 23 The 1994 Violent Crime Control and Law Enforcement Act, passed following the publicly videotaped 1991 beating of African American motorist Rodney King by four LAPD officers and the catastrophic Los Angeles Riots a year later, gave the Civil Rights Division of the U.S. Department of Justice an extraordinary mandate.[1] One of the law's provisions empowered the government to sue police agencies anywhere in the country if they exhibited a “pattern and practice” of using excessive force and/or violating people's civil rights, and to compel them, under a court enforced agreement known as a “consent decree,” to change those practices.[2] Communities in favor of consent decrees, like the city of New Orleans, have found that federal oversight of police practices result in a significant decrease in use of force incidents, due to a more thorough review process.[3] However, not all are in favor of these court-enforced agreements; for example, conservative public officials have routinely criticized consent decrees as being ineffective.[4] Conversely, studies have shown that fewer civil rights lawsuits are brought against state actors within jurisdictions enjoined under a consent decree, compared to the time period when the same jurisdiction was not under a court ordered decree.[5] Despite supporting empirical evidence that consent decrees serve as constructive judicial tools,[6] U.S. Attorney General Jeff Sessions, presumably under the direction of President Trump, has sought to review (or eradicate) all existing consent decrees.[7] Sessions, in a press release announcing significant changes to the Office of Community Oriented Policing Services, stated that control needed to be “returned to the public safety personnel sworn to protect the communities they police.”[8] In absolute contrast is the community of Baltimore, and more specifically the parents of Freddy Grey,[9] who would not want to end federal oversight of a police department riddled with instances of systemic racial practices that severely, and fatally, harm people of color.[10] Further, the people of Ferguson and parents of Michael Brown would not care to be subjected to unwarranted fines and sicced dogs, among other blatantly discriminatory practices in lieu of ‘watchdog’ federal overseers.[11]
Little Justice for Native American Women Victimized by Non-Native Attackers
By Ben Cornelius Associate Editor, Volume 23 In April of 2015, Edith Chavez, a Native American woman, was beaten and knocked unconscious at a North Dakota gas station by an unknown assailant.[1] She was then abducted, drugged, and driven northwest, likely to be sold into prostitution. Prostitution and human trafficking is thriving alongside the oil boom in the state.[2] Thankfully, Edith managed to escape her attacker and a good Samaritan took her to the police station in Williston, North Dakota to make a report.[3] Instead of taking a statement and launching an investigation, however, the police arrested Edith for an unpaid traffic ticket.[4] It was only after the intervention of a female officer at the jail Edith was transferred to that Edith was released and taken to a hospital.[5] Unfortunately, stories like Edith’s are not unique. According to former U.S. Associate Attorney General, Thomas Perrelli, on some reservations, Native American women are murdered at over 10 times the national average.[6] According to U.S. Justice Department records, one in three Native American women are raped during their lifetimes, two-and-a-half times the likelihood for an average non-Native American woman.[7] In 86 percent of these cases, the assailant is non-Indian.[8] The oil boom in the Dakotas has flooded the region with transient workers, many of whom prey on those vulnerable to rape and murder.[9] In addition to rape and murder, human trafficking has also skyrocketed.[10] Since the arrival of Europeans Native Americans have been prime targets for human traffickers, and in other cities that lie near reservations such as Minneapolis, native woman are grossly overrepresented in prostitution.[11] A 2007 review of probation records from North Minneapolis found that 24% of the women charged with prostitution in the area were Native American, yet Native Americans only comprised 2.2% of the population.[12]
With a Side of Higher Mortality: Prison Food in the United States
By Cleo Hernandez Associate Editor, Volume 23 November begins a holiday season in the United States that is stuffed full of increased attention on food. The average American does seem to gain just under one pound of body weight during the holiday season.[1] However, some individuals avoid this holiday gluttony through no choice of their own.[2] Prisoners in the United States on a day-to-day basis have an extremely different interaction with the “food” they are provided. Research about the nature of prison food in the United States is sparse, but there seems to be a general consensus that an inmate does not receive adequate food.[3] The United States Supreme Court has recognized that the prohibition of cruel and unusual punishment in the Eighth Amendment to the U.S. Constitution imposes duties on prison officials to provide prisoners with adequate food.[4] In reality many prisoners encounter food that is primarily a product of state legislative choices about funding, and thus prison meal systems will vary widely from state to state and from prison to prison.[5] This means that in some states prisoners are simply not fed enough. In Gordon County, Georgia prisoners only get two meals per day, served at least 10 hours apart.[6] In Butte-Silver Bow County, Montana, prisoner meals averaged between 1,700 and 2,000 calories per day.[7] Furthermore, the nutritional value of the meals seems to be low, with items like margarine, brownies, and cake tacked on to meager meals in order to reach calorie minimums.[8] Certainly, prisoners are not getting the diet rich in a diverse array of whole grains, fruits, and vegetables recommended by United States Department of Agriculture.[9]
The School to Prison Pipeline Comes to Pre-K
By Elliott Gluck Associate Editor, Volume 23 For years, the startling rates of suspensions and expulsions in America’s public schools have raised concerns for stakeholders across the educational landscape.[1] These disciplinary actions are frequently connected with higher drop-out rates, lower lifetime earnings, and higher rates of incarceration.[2] With African American students facing expulsion and suspension at over three times the rate of their non-Hispanic white peers and American Indian students overrepresented in exclusionary discipline by six times their overall school enrollment, a clear pattern of racial disparity emerges in the current approach to school discipline.[3] Startlingly, in the last few years, research has shown these disparities in school discipline are not confined to K-12, but extend to preschools as well.[4] The first major study exploring suspensions and expulsions in preschools came from Walter S. Gilliam and Golan Shahar in 2006.[5] Their Massachusetts study showed that preschool expulsions occurred at over 34 times the rate of K-12 expulsions and were influenced by larger class sizes, younger enrollees, and elevated “teacher job stress.”[6] While Massachusetts had a relatively low K-12 expulsion rate, these preschool expulsions still occurred at more than 13 times the national K-12 average.[7] Gilliam and Shahar noted that while all states have legal requirements for school attendance starting between ages five and eight, no such law exists for pre-K programs.[8] The authors suggest that, “these laws may reduce expulsion during the K-12 years, because the expulsion would create a legal problem for the parents who would then need to find educational programming for children elsewhere.”[9]Rethinking Death Penalty Reform: The Case Against Death-qualified Juries
By Anonymous Associate Editor Since the U.S. Supreme Court reinstated the death penalty through Gregg in 1976, racial bias has continued to pervade its administration.[1] 34.5% of defendants executed have been Black and 55.6% have been white,[2] despite the fact that only 13.3% of people in the U.S. identify as Black, while 77.1% identify as white.[3] I consider myself an abolitionist regarding the death penalty, as I do not think that it is justified for the state to kill a citizen in any circumstance. However, given these alarming statistics and the dire situation they illuminate, I find that efforts to reform the capital process to reduce racial disparity are also worthwhile. Reformers would do well to focus on the elimination of the death qualification process, as well as Eighth Amendment and Batson challenges to the death penalty.The Continuing Significance of the Non-Unanimous Jury Verdict and the Plantation Prison
By Madeleine Jennings Associate Editor, Vol. 22 In 1934, Oregon voters amended their Constitution to allow for non-unanimous jury verdicts in all non-first degree murder and non-capital cases.[1] The Louisiana Constitution requires unanimity only in capital cases.[2] Grounded in xenophobia and anti-Semitism, the Oregon law was passed by a ballot measure following the trial of a Jewish man who, accused of killing two Protestants, had received a lesser manslaughter conviction following a single juror hold-out.[3] The Louisiana iteration was crafted post-Reconstruction to increase convictions of then-freed Blacks, thereby increasing the for-profit labor force.[4] The State had, for decades, leased convicts to plantation owners and, in 1869, leased its prison and all of its inmates to a former major in the Confederate Army, who later moved the prisoners to Angola, the site of the former plantation, named for the country that was once home to its slaves.[5] Once an 8,000-acre plantation, Angola now sits on 18,000 acres—roughly the size of Manhattan—and consumes its own zip code.[6] Today, it is one of the nation’s largest maximum security prisons, and has been named “America’s Bloodiest Prison.”[7]Concealed Motives: Rethinking Fourteenth Amendment and Voting Rights Challenges to Felon Disenfranchisement
Felon disenfranchisement provisions are justified by many Americans under the principle that voting is a privilege to be enjoyed only by upstanding citizens. The provisions are intimately tied, however, to the country’s legacy of racism and systemic disenfranchisement and are at odds with the values of American democracy. In virtually every state, felon disenfranchisement provisions affect the poor and communities of color on a grossly disproportionate scale. Yet to date, most challenges to the provisions under the Equal Protection Clause and Voting Rights Act have been unsuccessful, frustrating proponents of re-enfranchisement and the disenfranchised alike. In light of those failures, is felon disenfranchisement here to stay? This Note contemplates that question, beginning with a comprehensive analysis of the history of felon disenfranchisement provisions in America, tracing their roots to the largescale effort to disenfranchise African Americans during Reconstruction, and identifying ways in which the racism of the past reverberates through practices of disenfranchisement in the present day. Applying this knowledge to understandings of prior case law and recent voting rights litigation, a path forward begins to emerge.Comparing the Goals of the ACLU’s Racial Justice Program and Criminal Law Reform Project to Hillary Clinton’s Criminal Justice Reform Platform
By Claire Nagel Associate Editor, Vol. 22 Democratic presidential candidate Hillary Clinton has made racial justice and criminal justice reform central issues in her campaign. During the first presidential debate on September 26th, Secretary Clinton responded to a question about how she would bridge racial divisions in the…