All content tagged with: Systemic Oppression
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Blackness as Character Evidence
Federal Rule of Evidence 404 severely limits the government’s ability to offer evidence of a defendant’s character trait of violence to prove action in conformity with that trait on the occasion in question. The Rule states that such character evidence is generally inadmissible when offered to prove propensity. The Rule also allows the government to offer evidence of an alleged victim’s character for peacefulness in homicide cases where the defendant asserts the self-defense privilege. Although criminal defendants may offer character evidence under limited circumstances, Rule 404 creates a significant disincentive for doing so. Where a defendant offers evidence of an alleged victim’s character trait to prove action in conformity therewith, this decision not only opens the door for the prosecution to offer positive character evidence on behalf of the victim but it also allows the prosecutor to offer bad character evidence against the defendant. Similarly, if the government offers evidence of a homicide victim’s character for nonviolence to rebut a claim of self-defense, doing so opens the door to the introduction of the victim’s bad character evidence.Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court
The 125th anniversary of Yick Wo v. Hopkins is an important opportunity to recognize the pervasive role of law in oppressive treatment of Chinese immigrants in the nineteenth and twentieth centuries. It is also a good opportunity for the Supreme Court to reflect on four important lessons gleaned from Yick Wo. First, the Court should never lend justification to the evil of class discrimination, even if it has to decline to rule in a case. Second, where there is persistent discrimination against a minority group, the Court must be similarly persistent in fighting it. Third, the Court needs to take legislative motivation more seriously in cases of persistent class discrimination. Finally, the Court cannot give sanction to any dominant group's view that the country's economic and social wealth belongs to them.Systemic Racial Bias and RICO’s Application to Criminal Street and Prison Gangs
This Article presents an empirical study of race and the application of the federal Racketeer Influenced and Corrupt Organizations Act (RICO) to criminal street and prison gangs. A strong majority (approximately 86%) of the prosecutions in the study involved gangs that were affiliated with one or more racial minority groups. All but one of the prosecuted White-affiliated gangs fell into three categories: international organized crime groups, outlaw motorcycle gangs, and White supremacist prison gangs. Some scholars and practitioners would explain these findings by contending that most criminal street gangs are comprised of racial minorities. This Article challenges and problematizes this factual assumption by critically examining the processes by which the government may come to label certain aiminal groups as gangs for RICO purposes. Based on the study findings, the Article argues that this labeling may be driven by systemic racial biases that marginalize entire racial minority groups and privilege mainstream nonimmigrant White communities. These systemic biases are characterized by converging constructions of race and crime, which fuse perceptions of gang-related crime with images of racial minorities. Conflating racial minorities with criminal activity enables the government to rely upon denigrating racial stereotypes in order to engage in invidious practices of racial profiling and to conduct sweeping arrests of racial minorities under RICO. This conflation also shields groups of nonimmigrant White criminal offenders from being conceptualized as gangs and shields nonimmigrant White neighborhoods from the stigma of having gang problems. In practice, this may harm communities that have White gang problems by preventing the government from executing gang-specific interventions within those communities.Racial Cartels
This Article argues that we can better understand the dynamic of historical racial exclusion if we describe it as the anti-competitive work of "racial cartels." We can define racial cartels to include a range of all-White groups - homeowners' associations, school districts, trade unions, real estate boards and political parties - who gained signficant social, economic and political profit from excluding on the basis of race. Far from operating on the basis of irrational animus, racial cartels actually derived significant profit from racial exclusion. By creating racially segmented housing markets, for example, exclusive White homeowners' associations enjoyed higher property values that depended not just on the superior quality of the housing stock but also on the racial composition of the neighborhood. Describing historical exclusion as anti-competitive cartel conduct highlights three aspects of discrimination that other descriptions obscure. First, compared to conventional theory, a racial cartel story emphasizes the material benefits - higher wages, higher property values, greater political power - that Whites derived from anti-competitive exclusion. Second, compared to individualist accounts, the cartel framework emphasizes the collective-action nature of historical discrimination. Third, calling historical exclusion cartel conduct can help to reframe antidiscrimination law as a type of antitrust legal intervention, designed to remedy persistent effects of past anti-competitive exclusion.Racism as “The Nation’s Crucial Sin”: Theology and Derrick Bell
Part I develops Bell's thesis that racism is permanent, an ineradicable structure in American life. Bell's stance here is unrelenting and a direct and deep challenge to liberal notions of racial progress. This section draws out the social facts Bell provides about the status of Blacks in American society and examines Bell's argument for the continuing disparity between the races, particularly the claim that Whites hold on to a property in Whiteness. Part II analyzes Bell's call for action despite racism's permanence. Part III develops Niebuhr's theology of the possibility of action despite sin. Niebuhr too criticizes the liberal-and liberal theological- belief in continuing progress; for Niebuhr, evil is not overcome. Part IV returns to Bell and assesses his religious orientation and the degree it may be receptive to Niebuhr's theology. Part of the assessment here will be whether Bell's stance is more existential rather than religious. Part V concludes by examining some of the larger implications of Bell's thesis: the continuation of deep structures that resist characterization simply as social constructions. Reference will be briefly drawn to the contributions of Bell and critical race theory to a movement beyond nonfoundationalism. Because the Article intends to offer additional grounds for the comprehension of Bell's conundrum-that racism is permanent and yet must be continually fought-the goal is understanding, not criticism. I hence assume Bell's thesis throughout.Locked in Inequality: The Persistence of Discrimination
In this Article, the author argues that the practice of charging school fees to attend public school is an example of locked-in discrimination that persists over time, even in the absence of intentional discrimination. Exploring the lock-in model of discrimination in the unique context of South Africa, Roithmayr makes two central points. First, discriminatory practices often become locked into institutional structures because high switching costs-the costs of moving from a discriminatory practice to an inclusive one—make it too difficult for an institution to discontinue discriminating. Even when institutional actors are fully committed to eradicating racial disparity, they may be constrained from doing so by high switching costs. Second, contemporary antidiscrimination law in the U.S. may be particularly ill equipped to deal with locked-in discrimination. U.S. equal protection jurisprudence only prohibits discrimination that can be traced to an individual or group of individuals who intend to discriminate, and does not address locked-in discrimination that persists even after institutional actors no longer intend to discriminate.Vigilante Racism: The De-Americanization of Immigrant America
Sadly, the de-Americanization process is capable of reinventing itself generation after generation. We have seen this exclusionary process aimed at those of Jewish, Asian, Mexican, Haitian, and other descent throughout the nation's history. De-Americanization is not simply xenophobia, because more than fear of foreigners is at work. This is a brand of nativism cloaked in a Euro-centric sense of America that combines hate and racial profiling. Whenever we go through a period of de-Americanization like what is currently happening to South Asians, Arabs, Muslim Americans, and people like Wen Ho Lee-a whole new generation of Americans sees that exclusion and hate is acceptable; that the definition of who is an American can be narrow; that they too have license to profile. Their license is issued when others around them engage in hate and the government chimes in with its own profiling. This is part of the sad process of unconscious and institutionalized racism that haunts our country.Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities
This Article links unscientific, race-based medical research to a broader, institutionalized pattern of racial profiling of Blacks in clinical decision-making. Far from providing a solution to the problem of racial health disparities, this Article shows that race-based health research fuels a collection of dubious background assumptions, creates a negative profile of Black patients, and reinforces taken-for-granted knowledge that leads to inferior medical treatment. This form of racial profiling is unjust, and also causes countless unnecessary deaths in the Black population.To Yick Wo, Thanks for Nothing!: Citizenship for Filipino Veterans
In this Note, the Author uses science fiction novelist Robert Heinlein's model of citizenship as an analytical framework for examining the historical treatment of Filipino veterans of World War II. The Author Heinlein's conception of citizenship in Starship Troopers was one in which a person can acquire citizenship only through a term of service in the state's armed forces. Similarly, the United States provided immediate eligibility for citizenship to World War II era foreign veterans, but it effectively excluded Filipino veterans from this benefit. The Author examines how the plenary power doctrine in immigration law, has quashed legal challenges by Filipino veterans and created a structural imbalance that not only allows but encourages similar inequities. The Author also notes that while Congress has enacted remedial legislation, this delayed conferral of citizenship without accompanying veteran's benefits is both inadequate and incomplete. Accordingly, the Author suggests that the plenary power doctrine, in the context of the Filipino veterans, must give way to textual reading of the U.S. Constitution which places an express limit of geographic uniformity in the area of naturalization. Drawing from the use of reparations in immigration policy, the Author recommends that further legislative remedies be enacted to ensure that Filipino veterans and their descendants are provided a fair and equitable remedy for their service to the United States.The Charleston Policy: Substance or Abuse?
In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.
