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June 17 - July 6, 2020
Supreme Court ruled in McCleskey v. Kemp that racial bias in sentencing, even if shown through credible statistical evidence, could not be challenged under the Fourteenth Amendment in the absence of clear evidence of conscious, discriminatory intent.
The study found that defendants charged with killing white victims received the death penalty eleven times more often than defendants charged with killing black victims. Georgia
analysis to see if nonracial factors might explain the disparities. Yet even after accounting for thirty-five nonracial variables, the researchers found that defendants charged with killing white victims were 4.3 times more likely to receive a death sentence than defendants charged with killing blacks.
The very evidence that the Court demanded in McCleskey—evidence of deliberate bias in his individual case—would almost always be unavailable and/or inadmissible due to procedural rules that shield jurors and prosecutors from scrutiny.
To date, not a single successful challenge has ever been made to racial bias in sentencing under McCleskey v. Kemp
“Though the law itself be fair on its face, and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations, between persons in similar circumstances … the denial of equal justice is still within the prohibition of the Constitution.
In May 1996, the Supreme Court reversed. As in McCleskey, the Court did not question the accuracy of the evidence submitted, but ruled that because Armstrong failed to identify any similarly situated white defendants who should have been charged in federal court but were not, he was not entitled even to discovery on his selective-prosecution claim.
Lawyers typically have little information about potential jurors, so their decisions to strike individual jurors tend to be based on nothing more than stereotypes, prejudices, and hunches.
The Court sent a clear message that appellate courts are largely free to accept the reasons offered by a prosecutor for excluding prospective black jurors—no matter how irrational or absurd the reasons may seem.
their criminal activity is more likely to be conducted outdoors. Concentrating law enforcement efforts in locations where drug activity will be more easily detected is viewed as a race-neutral organizational necessity.
Seattle residents were far more likely to report suspected narcotics activities in residences—not outdoors—but police devoted their resources to open-air drug markets and to the one precinct that was least likely to be identified as the site of suspected drug activity in citizen complaints. In fact, although hundreds of outdoor drug transactions were recorded in predominantly white areas of Seattle, police concentrated their drug enforcement efforts in one downtown drug market where the frequency of drug transactions was much lower.
The Supreme Court dismissed the case, however, ruling that Lyons lacked “standing” to seek an injunction against the deadly practice. In order to have standing, the Court reasoned, Lyons would have to show that he was highly likely to be subject to a chokehold again.
the Supreme Court has ruled that the state and its offices are immune from federal suits for damages under the Eleventh Amendment to the Constitution (unless they consent), and the state can’t be sued for damages for constitutional violations in state court either.
In United States v. Brignoni-Ponce, the Court concluded it was permissible under the equal protection clause of the Fourteenth Amendment for the police to use race as a factor in making decisions about which motorists to stop and search.
In fact, in New Jersey, whites were almost twice as likely to be found with illegal drugs or contraband as African Americans,
Housing discrimination against people branded felons (as well as suspected “criminals”) is perfectly legal. During
Similarly, a California study reported that an estimated 30 to 50 percent of individuals under parole supervision in San Francisco and Los Angeles were homeless.
period ranging from a number of years to the rest of one’s life.50 This is far from the norm in other countries—like Germany, for instance, which allows (and even encourages) people to vote in prison. In fact, about half of European countries allow all people behind bars to vote, while others disqualify only a small number
All your life you been taught that you’re not a worthy person, or something is wrong with you. So you don’t have no respect for yourself. See, people of color have—not all of them, but a lot of them—have poor self-esteem, because we’ve been branded. We hate ourselves, you know. We have been programmed that it’s something that’s wrong with us. We hate ourselves.82
are we willing to demonize a population, declare a war against them, and then stand back and heap shame and contempt upon them for failing to behave like model citizens while under attack?
the era of mass incarceration is something akin to “gangsta love.” While race and sexual orientation are perfectly appropriate aspects of one’s identity to embrace, criminality for its own sake most certainly is not.
There is another path. Rather than shaming and condemning an already deeply stigmatized group, we, collectively, can embrace them—not necessarily their behavior, but them—their humanness. As the saying goes, “You gotta hate the crime, but love the criminal.” This is not a mere platitude; it is a prescription for liberation. If we had actually learned to show love, care, compassion, and concern across racial lines during the Civil Rights Movement—rather than go colorblind—mass incarceration would not exist today.
The U.S. Census Bureau reported in 2002 that there are nearly 3 million more black adult women than men in black communities across the United States, a gender gap of 26 percent.
“The system is not run by a bunch of racists,” the apologist would explain. “It’s run by people who are trying to fight crime.” That response is predictable because most people assume that racism, and racial systems generally, are fundamentally a function of attitudes.
permanent racial undercaste. The total population of black males in Chicago with a felony record (inside and outside prisons) is equivalent to 55 percent of the black adult male population and an astonishing 80 percent of the adult black male workforce in the Chicago area.21
It achieves racial segregation by segregating people in prison—the majority of whom are black and brown—from mainstream society.
According to one study, during a twelve-year period, the number of people returning from prison back home to “core counties”—those counties that contain the inner city of a metropolitan area—tripled.
Arguably the most important parallel between mass incarceration and Jim Crow is that both have served to define the meaning and significance of race in America.
Today mass incarceration defines the meaning of blackness in America: black people, especially black men, are criminals. That is what it means to be black.
As Wideman explains, when “to be a man of color of a certain economic class and milieu is equivalent in the public eye to being a criminal,” being processed by the criminal justice system is tantamount to being made black, and “doing time” behind bars is at the same time “marking race.”57 At its core, then, mass incarceration, like Jim Crow, is a “race-making institution.” It serves to define the meaning and significance of race in America.
“interracial racial caste system” may seem like an oxymoron. What kind of racial caste system includes white people within its control?
notable difference between Jim Crow and mass incarceration is that many African Americans seem to support the current system of control,
Many African Americans today believe that uplift ideology worked in the past and ought to work again—forgetting that ultimately it took a major movement to end the last caste system, not
going to college. The genius of the current caste system, and what most distinguishes it from its predecessors, is that it appears voluntary.
“the burden belongs to the nation, and the hands of none of us are clean if we bend not our energies to righting these great wrongs.”
is: a new caste system thinly veiled by the cloak of colorblindness. Hundreds of thousands of people of color are swept into this system and released every year, yet we rationalize the systematic discrimination and exclusion and turn a blind eye to the suffering. Our collective denial is not merely an inconvenient fact; it is a major stumbling block to public understanding of the role of race in our society, and it sharply limits the opportunities for truly transformative collective action.
Two decades later, former NAACP Legal Defense Fund lawyer and current Harvard Law School professor Lani Guinier published a memoir in which she acknowledged that, “by the early 1990s, [civil rights] litigators like me had become like the Washington insiders we were so suspicious of….
The “politics of respectability” has influenced civil rights litigation and advocacy, leading even the most powerful civil rights organizations to distance themselves from the most stigmatized elements of the community, especially those who break the law.
development directly traceable to the increase in the penal population. During the much heralded economic boom of the 1990s, the true jobless rate among noncollege black men was a staggering 42 percent (65 percent among black male dropouts).
we would need to release approximately four out of five people currently behind bars today.
often promise far more to local communities than they deliver.19 All of these corporate and political interests have a stake in the expansion—not the elimination—of the system of mass incarceration.
These debates are worthwhile, but it is critical to keep in mind that the question of how we do reform work is even more important than the specific reforms we seek. If the way we pursue reforms does not contribute to the building of a movement to dismantle the system of mass incarceration, and if our advocacy does not upset the prevailing public consensus that supports the new caste system, none of the reforms, even if won, will successfully disrupt the nation’s racial equilibrium.
But even assuming that our nation achieved as much as a 25 percent reduction in crime overall through mass incarceration, it still means that the overwhelming majority of crime—75 percent—persists despite mass incarceration, and despite mass incarceration costing nearly $200 billion annually. As a crime reduction strategy, mass incarceration is an abysmal failure. It is largely ineffective and extraordinarily expensive.
Our blindness also prevents us from seeing the racial and structural divisions that persist in society: the segregated, unequal schools, the segregated, jobless ghettos, and the segregated public discourse—a public conversation that excludes the current pariah caste.
the ideal of colorblindness is linked to a commitment to individualism.
The uncomfortable truth, however, is that racial differences will always exist among us. Even if the legacies of slavery, Jim Crow, and mass incarceration were completely overcome, we would remain a nation of immigrants
in many respects African Americans are doing no better than they were when Martin Luther King Jr. was assassinated and riots swept inner cities across America. The child poverty rate is actually higher today than it was in 1968.
the new caste system depends, in no small part, on black exceptionalism. The
Rather it seems that an aspect of human nature is the tendency to cling tightly to one’s advantages and privileges and to rationalize the suffering and exclusion of others. This tendency is what led Frederick Douglass to declare that “power concedes nothing without a demand; it never has and it never will.”
that the real work of movement building had only just begun.64 A human rights approach, he believed, would offer far greater hope for those of us determined to create a thriving, multiracial, multiethnic democracy free from racial hierarchy than the civil rights model had provided to date.
