The Ronald H. Brown Center for Civil Rights and Economic Development

Chipping Away at the VRA One Court Decision at a Time

Janai Nelson — Thu, 29 May 2008 14:30:00 GMT

Against the backdrop of a high stakes, history-making, mega-media election cycle, the United States Supreme Court has been deciding important and noteworthy election law cases in areas as wide-ranging as voter identification requirements, judicial elections, and the regulation of political parties. The long-term impact of these decisions on the shape of American democracy has received relatively little popular attention in light of the immediate focus on the presidential elections. One election law opinion issued just this week, Riley v. Kennedy, underscores this point.

Despite its highly technical facts and likely narrow application, Riley is significant because it limits the reach of an integral provision of one of the most transformative civil rights statutes and bodies of American election law—the Voting Rights Act of 1965 (VRA). By chipping away at the expansive reach of Section 5 of the VRA, the Court may be signaling a waning appreciation for this anchor provision of the Act, as well as for the broader statute itself which has safeguarded voting rights throughout the country for over four decades. More important, the Riley decision comes at a precarious time for Section 5 of the VRA as Northwest Austin Municipal Utility District v. Mukasey (NAMUDNO), a Texas case that challenges the constitutionality of Section 5 as a whole, will soon be poised for Supreme Court review.

Section 5 of the VRA was originally enacted to serve as an aggressive antidote to the pervasive and persistent voting discrimination against African Americans by state actors in the South and was later expanded to include jurisdictions in other regions of the country. In short, Section 5 requires that all new election practices and laws be pre-approved or “pre-cleared” by a federal district court in Washington, D.C. or the Department of Justice before going into effect. The underlying notion is that federal oversight of state voting decisions is needed in light of the pernicious history of discrimination in the jurisdictions covered under Section 5. Whether a proposed voting change is ultimately precleared depends on whether the proposed voting law or practice will put minority voters in a worse position than their present status or, in other words, whether the voting change is “retrogressive.”

Riley narrows the pool of voting changes subject to Section 5’s protections. Specifically, Riley holds that, if a state’s highest court overturns a voting law, even one that had been precleared and enforced temporarily, the earlier law can go back into effect without any federal inquiry as to whether minority voters are now in a worse position than when the overturned law was in place. While this scenario may not be common, the practical consequences of this holding in the Riley case and the broader implications concerning the Section 5 of the VRA are more readily apparent when you consider Riley’s specific facts.

Riley originated in Mobile County, Alabama, which is covered under Section 5 of the VRA, as is the entire State of Alabama. In 1985 the Alabama State Legislature enacted (and the Department of Justice precleared) a law providing that mid-term vacancies on the commission must be filled by special election and not by gubernatorial appointment as had been the practice since the passage of the VRA. This new law was challenged in Alabama state courts in 1987 and again when a vacancy arose in 2005 in District 1 of the three-member Mobile County Commission. That same year, the Alabama Supreme Court held that the law providing for special elections violated the Alabama State Constitution. As a result, a vacancy was created in District 1 and Governor Bob Riley appointed fellow Republican Juan Chastang to the commission to fill it. District 1 is overwhelmingly Democratic and over 62% African American.

The Alabama State Legislature subsequently enacted a new law providing that midterm vacancies be filled by special election. Merceria Ludgood, an African-American female lawyer and Democrat, handily defeated Chastang with 80% of the votes in the special election that followed the state court decision. Ludgood’s term expires in November of this year; however, there is already talk of Chastang’s immediate reinstatement to the commission in light of the Riley decision. Considering the overwhelming lack of support for Chastang in District 1, this result that would seem to mock the ideals of the VRA and Section 5 in particular. The return to gubernatorial appointment would clearly place minority voters in District 1 in a worse position than they had been under the overturned law by forcing District 1 voters to be represented by someone who received a disproportionately low number of votes.

Justice Ginsburg, who authored the Court’s 7-2 decision in Riley, went to significant lengths to suggest that the opinion is limited to its facts. However, by elevating a state court’s decision above the longstanding, congressionally endorsed limitations on state’s rights that give the VRA its force, the Court seems not only to be indicating decreased support for the VRA, but seems to be exhibiting deference to more conservative concerns of the Court. Indeed, while Riley may seem like a strict case of statutory interpretation on its face, statutory interpretation is rarely, if ever, conducted in a vacuum where the VRA is concerned. Rather, the gradual weakening of Section 5 that was set in motion by the Rehnquist court in earlier decisions like Georgia v. Ashcroftand Bossier Parish School Board v. Reno, and later reversed through congressional reauthorization of the special provisions of the VRA in 2006, seems to have found a second wind and a new direction in the Roberts court.

Even some of the more faithful gatekeepers on the Court have expressed doubt as to the propriety of the VRA’s current scope in light of the impressive reform that has been achieved by its enforcement. Justice Stevens wrote in a dissent, joined by Justice Souter, that “it may well be true that today the statute is maintaining strict federal controls that are not as necessary or appropriate as they once were.” Moreover, if Chief Justice Roberts’s acknowledged fixation during the Riley oral argument on the statutory language linking Section 5 to practices “in force or effect on November 1, 1964” is any indication of his position, it is conceivable that he would opt to limit Section 5’s reach to benchmarks set in 1964 when the VRA was first enacted. Thankfully, the Court did not take this up in the Riley opinion.

Riley’s deference to state courts in derogation of the congressional intent underlying the VRA seems even more misplaced when you consider the recognized role that certain state courts, like those in Alabama, have played historically in perpetuating discrimination in voting. Notably, prior to 1985 when a voting rights challenge was brought successfully under another provision of the VRA, no African American had ever been elected to the Mobile County Commission. Justice Stevens points to the history of discrimination in Alabama in the last few pages of his dissenting opinion in Riley, which is the only part of the entire opinion that provides historical context for the enactment and continued enforcement of Section 5.

As noted above, these issues are most concerning in light the NAMUDNO case, which raises a direct challenge to the constitutionality of Section 5. Inasmuch as Riley is based on a narrow set of facts, the NAMUDNO case has broad and sweeping potential. Both cases indicate a growing skepticism in federal courts toward the role the VRA plays in the present-day electoral arena and, to the extent that the Court’s opinion in Riley is a bellwether, there should be growing concern by those who share an appreciation for the continued relevance of the VRA and one of its most powerful tools.

Barack Obama’s Patriotism, Reverend Jeremiah Wright’s Rage & Anger Among Middle-Class African Americans

Cheryl L. Wade — Fri, 28 Mar 2008 16:02:00 GMT

I was not surprised when Michelle Obama said that she was “really proud of” her country for the first time in her adult life. I am surprised, however, that her comments astonished so many white Americans. I am an African American woman with a law degree, and even though I share these things in common with Michelle Obama, I will not attempt to explain what I think she meant by her statement. I mention Michelle Obama’s remarks because I am stunned that so many white Americans are bewildered and disconcerted when African Americans express sentiments that reveal disappointment, and sometimes even anger, about our nation, its history, and the status of African Americans today.

In the middle of March, the entire nation was introduced to Reverend Jeremiah Wright, Barack Obama’s pastor. More than two weeks later, television pundits and citizens are still talking about video clips and church bulletins revealing parts of Reverend Wright’s incendiary statements about the United States, Israel and white Americans. Few have seen the entire texts from the bulletins, or heard any of Wright’s sermons in their entirety. Some have observed that his statements may be distorted by a lack of context. For example, one frequently played clip shows Wright damning America without including his explanation that America will be damned if it continues to follow domestic and foreign policies that Wright sees as racist. In any event, some of what I have heard from Wright is alarming, and it is clear that he is angry.

Several days after the dissemination of the Wright video snippets, Obama delivered a speech about his church, his pastor, and racial reconciliation. Obama forcefully condemned Reverend Wright’s incendiary statements, but at the same time, Obama acknowledged Wright’s anger. In his speech, Obama spoke of the humiliation that African American men and women of Wright’s generation suffered, and observed that this humiliation has not “dissipated”. Most white Americans do not seem to understand the depths of black anger and the reasons why many African Americans of all generations and at every socioeconomic level are enraged, even in the twenty-first century. Many white Americans are especially stunned that middle-class, well-educated African Americans share in the rage of their less privileged brothers and sisters.

Well-educated, professional African Americans, despite their privilege, have much about which to be angry. In 1993, in his book, The Rage of a Privileged Class, Ellis Cose described the anger with which many privileged African Americans live, attributing a significant portion of that anger to the sophisticated and subtle discrimination that occurs in the workplace. It is distressing that almost all of the grim statistics and anecdotes that Cose described persist in this first decade of the twenty-first century. In 2008, middle-class African Americans face employment discrimination that impedes their climb up the corporate ladder. Many professional African Americans are stuck in middle management while white men occupy the ranks of senior management at the very top of workplace hierarchies. Disparities in wealth and income between professional black Americans and similarly educated white Americans persist in 2008. Employment decisions about promotion and pay involve subjective decision making on the part of white managers and executives who may be inevitably burdened with unconscious assumptions about black achievement based on our nation’s history of racism.

It is interesting that some of the dynamics of race relations in the workplace have been replicated in the 2008 race for the nation’s top job. Geraldine Ferraro and others have claimed that Obama is some sort of affirmative action beneficiary. According to them, his status as an African American does not disadvantage him. Ferraro and others argue that Obama’s race, not his message or talent, explains his success. Many African Americans interviewed for books about workplace discrimination describe similar experiences with white colleagues who conclude that the success of black professionals is attributed to some imagined affirmative action efforts, rather than the black employee’s talent.

It is certainly true that white women face significant impediments to their advancement up the corporate ladder, or into the white house. But white women, including Hillary Clinton, are free to talk about the difficulties they face as women attempting to break through a glass ceiling. Some observers call the barriers that people of color face in the employment context a concrete ceiling, but minority employees are reluctant to talk about the discrimination they face. The reasons for the hesitancy to talk about these racial realties are varied and complex. Some people of color want to avoid claiming victim status. Others realize that their white colleagues think that racism is a thing of the past that no longer affects the lives of African Americans, especially those who are well-educated professionals. In his quest for the nation’s top job, Obama tried to avoid the quagmire of racial discourse in the interest of racial reconciliation and coalition building.

But Obama was not allowed to continue with his race-neutral campaign. He was forced to make a speech about race. In this speech, Obama referred to a long list of items that demarcate the boundaries between the experiences of black and white Americans. Some of his references were historical. But some of his speech chronicled the present-day disparities between black and white Americans: the unfair treatment of some black Americans in the criminal justice system; a lack of basic services in some black neighborhoods; economic discrimination that precludes black Americans’ accumulation of wealth; the inferior schools that black children attend. Most of these injustices infect the lives of poor black Americans.

Many middle-class and affluent African Americans are angry about the injustices that plague the lives of poor black citizens, but their anger is exacerbated by what one observer called the “daily murders” that African Americans face, regardless of class or gender. There are many examples of these daily murders. I will provide just one. Near the entrance of the Central Park Conservancy garden, there is a statue and monument paying tribute to J. Marion Sims. The tribute reads as follows: “Surgeon and Philanthropist....His brilliant achievement carried the fame of American Surgery throughout the entire world. In recognition of his services in the cause of science and mankind....” In her book, Post Traumatic Slave Syndrome, Joy DeGruy Leary explained that J. Marion Sims performed surgical experiments on enslaved African women and infants in the middle of the nineteenth century. The women and infants were not anesthetized because Sims concluded that they were able to endure the pain because of their “race”. One of his experiments included attempts to realign the skulls of infants with a tool used by shoemakers. Most of the infants died, providing Sims with the opportunity to experiment with the corpses of his small victims. Well-educated African American professionals, the ones most likely to read Leary’s book, pay taxes to, and contribute to the success of a nation that has not atoned for the atrocities committed against our foremothers and forefathers. In twenty-first century America, we thrive even while we walk in the shadows of monuments constructed in honor of the men who enslaved and tortured our ancestors. And, we are expected to do so without being angry.

Many middle-class African Americans are angered by the implicit racism that is part of the feminist movement supporting Clinton’s candidacy. Again, I will provide one example of this racism. When I told my friend, a white woman, that I supported Obama she asked me this question: “How are you able to get past Obama’s sexism?” I told her that I considered Obama a feminist, not a sexist. My friend responded by saying that she heard a report that Obama’s campaign played a rap song at one of his rallies as the Senator and his family walked onto the stage. The rap song was misogynist, she explained. The rapper used the word “bitch” repeatedly. Another white woman who was with us at dinner confirmed the report stating that the sexist epithet seemed to have been directed against Hillary Clinton. She even told me the name of the rap song. None of the Obama supporters to whom I spoke after this exchange had heard this report. Another colleague, a white woman, with whom I discussed the conversation, found an article describing the numerous reports of this rumor, explaining that it was completely false. Obama’s campaign had never played rap music at any rally. I was stunned that the two white women who heard the reports believed them so easily. They, like me, are law professors, but they were quick to believe this implicitly racist account of one of Obama’s rallies. They were quick to believe in the “reports” that tainted Obama with the stain of misogynist rap music. The “logic” of the false reports and the feminists who so easily believed them is as follows: some rappers are misogynist; most rappers are black; Obama is black, so it is easy to believe that he used misogynist rap lyrics against Clinton at one of his rallies.

Middle-class, well-educated African Americans are more likely than poor African Americans to read Leary’s book, or have a conversation similar to the one that I had about Obama and rap music with white Americans who are also well-educated and relatively affluent. Each of us will react to instances like this differently. Some of us will seethe with rage like Obama’s pastor. Some of us will feel no anger at all. Most of us will fall somewhere between these two extremes.

I am astounded that many white Americans do not understand the anger of middle-class African Americans and its pervasiveness. I am even more baffled about the expectations that some white citizens have for “well-adjusted” black Americans who either feel no anger, or who refuse to allow their anger to play a central role in their interaction with others. These black citizens are expected to live in this nation without having some aspect of their lives touch some other black American who is wounded, and whose views regarding race and politics are extreme. Most astounding about the recent discourse about Obama and Reverend Wright is that some dare to question Obama’s patriotism, not because Obama is angry or bitter, but because his pastor is.

Many white Americans expect that a black politician will not be connected in any way to a black American who is angry and bitter about this nation’s racist past and present. This is impossible, even for a patriot like Obama.

Yes We Can!

Leonard Baynes — Thu, 21 Feb 2008 18:26:00 GMT

On the night of the New Hampshire primary, Harvard Law School-educated Barack Obama continuously repeated the refrain: “Yes, we can!” He then gave several examples where people of color were told that they were not ready, and couldn’t achieve their dreams. Obama, using his law degree, served as a community organizer, law professor and U.S. Senator. As we celebrate Black History Month, it is important for young people to take Obama’s message to heart and realize that they too can become lawyers and aspire to the presidency.

People of color have become lawyers even when discrimination was rampant. In 1848, George Boyer Vashon became the first black lawyer admitted in New YorkState. Because clients refused to hire a black lawyer, he tried publishing and ultimately moved to, and was admitted to practice in, Washington, D.C. William Tucker Garvin was one of eighteen children from rural South Carolina. In 1931 Garvin graduated from St. John’s. He was the first black assistant district attorney in Queens and the first African American to serve on the Queens local school board. Garvin later had a successful legal career in private practice. Growing up in a tenement in Chinatown, Thomas H. Lee graduated from St. John’s in 1936 and became the first Chinese American lawyer licensed in New YorkState. In 1951 he became an Assistant U.S. Attorney in Manhattan and later had a successful career in private practice. Cora Walker was one of the first black women to practice law in New YorkState. In 1947, she graduated from St. John’s. Her mother attempted to discourage Walker from becoming a lawyer, fearing that her daughter would face double discrimination for being both black and woman. Ignoring her mother’s warnings, Walker had a successful career as a litigator in her own law firm in Harlem.

Phillip Roache was the first black law professor at St. John’s. Before attending law school, Roache worked as a token clerk for the MTA. He graduated from St. John’s in 1954 and served as a family court judge. In 1987, civil rights activist and scholar Haywood Burns became the dean of CUNYLawSchool also becoming the first black dean of any New YorkState law school.

Despite these successes, the gains in minority admission to the legal profession are small. In New YorkState, approximately 3.4% of the lawyers are African American, even though blacks comprise 16% of New YorkState’s and 27% of New York City’s population. A study by John Nussbaumer at ThomasCooleyLawSchool shows that nationwide 63% of black and 52% of Puerto Rican law school applicants are rejected, as compared to 35% of whites. The Ronald H. Brown Center Study of the fifteen law schools in New YorkState shows that between 2000-2006, black enrollment declined 20% and Puerto Rican enrollment declined 54%. In fact, there are three New YorkState law schools that have no Puerto Rican law students even though Puerto Ricans are the largest Latino/a demographic in New YorkState. As law schools place more emphasis on the Law School Admission Test (LSAT) in deciding which applicant to admit and fail to consider other indicia of achievement, higher hurdles exist for black and Latino/a law school applicants.

The Ronald H. Brown Summer Law School Prep Program is designed to increase the pool of qualified applicants and can serve a model for other law schools to use in finding constructive solutions to the underrepresentation of black and Latino/a law students. After sophomore year, college students are taught law school classes by law school professors, intern with state court judges for two weeks, and then do four weeks of internships with the district attorney’s offices of Queens and Brooklyn. After their junior year, the same students come back for a specially designed LSAT Prep class with extra tutoring provided by law school students. On average, the Prep Program students saw an increase of nine-points on their LSAT scores.

Monica Moran, of St. Albans, participated in the Prep Program and is now a first year student at GeorgeWashingtonLawSchool. Moran described her experience as follows: “I really felt like a law student attending my first days of law school, and the Prep Program reassured me that studying of law was part of my future.”South Jamaica native Derell Kennedo, who scored in the top percentile on the December LSAT, said: “The specially designed LSAT class and the support of the law student tutors gave me the confidence I needed to ace the LSAT exam.”

The Prep Program expands the pool of qualified students of color eligible to attend law school. With the right mentoring, these students can achieve high scores on the LSAT and get into the law school of their dreams. In the future, these students will be poised to assume leadership positions reflective of the diversity of the State, the City, and Queens. One of them might even be the next Barack Obama. The success of the Prep Program demonstrates that, with the right kind of mentoring: YES WE CAN!

Talking Sense About Sentencing

Michael A. Simons — Mon, 28 Jan 2008 21:06:00 GMT

By almost any measure, the United States has one of the harshest and most severe sentencing systems in the world. Last month, the Department of Justice announced that almost 2.4 million Americans are incarcerated. One out of every 31 Americans is under the supervision of the criminal justice system.

It has not always been so. For most of the last century, our incarceration rates were modest and fairly steady. We incarcerated between 100 and 200 people out of every 100,000 Americans – rates that were comparable to the rates of other industrialized democracies. But then, about three decades ago, our approach to criminal justice policy changed. As politicians strove to be “tough on crime” and as law enforcement waged the “war on drugs,” our prisons began to swell. By 1980, our incarceration rate had reached 220. Since then, it has increased over 300%.

According to the latest statistics, 738 out of every 100,000 adults in the United States are locked up. There isn’t another country in the world with an incarceration rate this high. Not Russia (611). Not Cuba (487). Not South Africa (333). Not Mexico (196). And certainly not any other industrialized democracy, like England (148), Australia (126), Canada (107), Germany (95), France (85), or Japan (62). The Sentencing Project has collected the statistics.

How did we get here?

A large part of the answer lies in our approach to narcotics offenses. In the 1970s, New York’s then-Governor Nelson Rockefeller pushed a new approach to drug crime: lengthy prison sentences for modest amounts of drugs. The idea was simple. The shocking nature of these sentences would accomplish what treatment and rehabilitation could not. Drug dealers would be taken off the streets, and others would be deterred from taking their place by the fear getting similar lengthy sentences.

A decade later, the federal government followed suit, enacting tough mandatory sentences for drug crimes. The most Draconian of these sentences involve crack cocaine, which is punished at a rate 100 times greater than cocaine, even though the differences between the two drugs are negligible. Congress decreed that simple possession of five grams of crack (worth less than $200) would require a five-year prison sentence. An offense involving fifty grams of crack would require a ten-year prison sentence. Because of the patterns of drug use and drug enforcement, the burdens of this 100:1 ratio – and the burdens of the war on drugs in general – have fallen disproportionately on members of minority communities.

And “tough on crime” policies have not been limited to drug offenses. The 1980s also saw Congress transform federal sentencing by eliminating parole and creating mandatory Sentencing Guidelines. Before the Sentencing Guidelines went into effect in 1987, judges had enjoyed wide, almost unfettered, discretion. The dominant purpose of sentencing was to rehabilitate offenders, and judges were free to impose whatever sentence they felt best fit the crime and the defendant’s situation. The parole board would then decide when the defendant was sufficiently rehabilitated to be released (usually long before his sentence was complete).

The Sentencing Guidelines changed all that. Judges were required to use a mathematical formula to calculate a score for the crime, which was then combined with another mathematical formula for the defendant’s “criminal history,” and then plotted on a grid to yield a “sentencing range.” The resulting ranges were narrow, usually mandatory, and often quite severe. The goal of rehabilitation had been replaced by the goals of deterrence and incapacitation. A concern with individualization had been replaced by a devotion to uniformity.

In the 1990s, this trend toward severity continued, as more and more states eliminated parole, and most enacted some version of “three strikes and you’re out.” “Life without parole” became an increasingly popular sentence. When a California judge imposed a 50-year sentence on a repeat offender who had shoplifted three golf clubs, it wasn’t seen as outlandish. Instead, the United States Supreme Court found that the sentence was “justified” by the “public safety interest in incapacitating and deterring recidivist felons.”

This state of affairs has not escaped criticism. Indeed, most thoughtful observers agree that our current addiction to incarceration is indefensible. One prominent critic has been Supreme Court Justice Anthony Kennedy, who is not generally known as “soft” on crime. In a speech at the American Bar Association’s Annual Meeting in 2003, Justice Kennedy summarized what he saw as the deplorable state of our sentencing system. In addition to decrying the sheer number of Americans incarcerated, he noted that we spend over 40 billion dollars each year to warehouse those millions of people. Justice Kennedy also highlighted the undeniable connection between sentencing and race:

“Nationwide, more than 40% of the prison population consists of African-American inmates. About 10% of African-American men in their mid-to-late 20s are behind bars. In some cities more than 50% of young African-American men are under the supervision of the criminal justice system.”

Justice Kennedy also lamented the demise of judicial discretion and the proliferation of mandatory minimum sentences that in too many cases are both “unwise and unjust.” Finally, he protested the dehumanizing experience of prison and our willingness to lock people up and then forget about them:

“We must try ... to bridge the gap between proper skepticism about rehabilitation on the one hand and improper refusal to acknowledge that the more than two million inmates in the United States are human beings whose minds and spirits we must try to reach.”

Justice Kennedy’s conclusion was stark and unassailable: “Our resources are misspent, our punishments too severe, our sentences too long.”

And, yet, there may be hope.

Recent developments suggest that the pendulum of severity may be swinging back toward moderation. A few years ago, the Supreme Court ruled that the Constitution requires that the federal Sentencing Guidelines be advisory, not mandatory. In two cases decided last month involving lengthy sentences imposed on drug dealers, the Court made clear that judges have discretion to impose sentences below the narrow Guidelines range if the defendant’s individual situation warrants. At the same time, the United States Sentencing Commission greatly reduced the disparity between crack sentences and cocaine sentences in the Sentencing Guidelines (though it will take Congress and the President to change the corresponding mandatory minimum sentences). This change to the Guidelines is retroactive, so that almost 20,000 prisoners are now eligible for possible sentence reductions. Eighty-six percent of those prisoners are black.

Similar trends are visible in the states. New York has rolled back some of the harshest penalties associated with the Rockefeller drug laws. And last week, the Sentencing Project released a report summarizing a wide variety of recent efforts in eighteen different states to reduce recidivism, to limit sentence lengths, and to more closely scrutinize the effectiveness of punishment policy.

And here is perhaps the most encouraging sign that some common sense is returning to sentencing. In the midst of a presidential campaign that is typically focused on other issues, at least one of the major candidates has included serious sentencing reform among his policy proposals. Barack Obama’s announced proposals include eliminating the sentencing disparity between crack offenses and cocaine offense, reducing or eliminating mandatory sentences to stop the “ineffective warehousing of non-violent drug offenders,” increasing the use of drug courts that focus on treatment instead of incarceration, and increasing programs for released offenders to reduce recidivism.

Granted, Obama is only one candidate, and his proposals relate only to federal law. But the particulars of Obama’s proposals are less important than the fact that he is willing to make them. For years, politicians have avoided even talking about sentencing reform for fear of being labeled “soft on crime.” That reticence is not surprising, as the primary beneficiaries of sentencing reform – prisoners and their communities – tend not to wield much political clout. But that only increases the moral imperative to think seriously about these issues.

Real sentencing reform will require real leadership – from our next president, from Congressional leaders, and from policy makers in all fifty states. At least one prominent politician has recognized that it is politically feasible to talk sense about sentencing. Perhaps other political leaders will realize that, after a three-decade march toward ever increasing severity, the American public may be willing to listen.

Four Key Proposals Designed to Eliminate Harmful Media Stereotypes

Leonard Baynes — Wed, 02 Jan 2008 19:45:00 GMT

The media justice movement advocates for fair and representative minority media content, portrayals, and ownership.

Minority media content, portrayals, and ownership are critical civil rights issues because the media influence public support for policies associated with minority groups. For example, the media overrepresent the poor as African American. Politicians have exploited this media overrepresentation with the stereotype of the “black welfare queen.” The public thinks that all welfare recipients are black and exploit the welfare system. As a consequence, the public lacks empathy for welfare recipients and withdraws political support for programs that, although are race neutral like welfare, are perceived to overwhelmingly favor the stereotyped minority group.

Another example involves crime reporting. It is estimated that 25 percent of local news is actually crime stories. It has been said that local news is essentially a version of the reality show, “Cops” (which typically shows minorities being apprehended by law enforcement) “with slightly better-looking characters.” Like the reality show “Cops,” African Americans are overrepresented in local news crime stories. These local newscasts spotlight crimes that involve minority perpetrators and white victims. This interracial focus exaggerates actual crime statistics. Most crime is intraracial, yet if you watch the local news, you would think that every black man rapes, robs, murders, and steals; and all victims of crime are white. Of course that is impossible since most whites live in hyper segregated communities. And the vast majority of African Americans are law abiding citizens. Other studies find that the media show alleged African American perpetrators more often than alleged white perpetrators in a manner that suggests guilt, e.g., being restrained by police or in a mug shot.

These stereotypical depictions of African Americans may have something to do with 47% of the public responding to General Science Survey stating that they believed the African Americans are prone to violence. The negative media depictions taken in conjunction with the polling data explain the general lack of empathy for ex-cons, the no tolerance policy on crime, the overpopulation of African American men in prison, and a virtual elimination of policies designed to rehabilitate offenders.

Other minority groups like, Latinos/as, Asian Americans, and American Indians, are virtually unrepresented in news and entertainment programming. It is most surprising in the case of Latinos/as, which are now the largest minority group in the U.S., but less than one-percent of the network news stories are about Latinos/as. This absence also has consequences. It leads the public to think that these groups don’t exist in the U.S. It allows for them to be easily stereotyped as “foreign.” It is not surprising that polling data show that a majority of Americans think that most Latinos/as who immigrate to the U.S. are illegal aliens” when in fact a small minority is in fact “illegal.”

Given that only 7.76 percent of commercial broadcast stations are owned by minorities, minorities are unable to counter negative media stereotypes in any credible way. Although the prevalence of the Internet and broadband technologies is changing the media landscape, many minorities still do not have Internet access in their homes, and those who do have home access use the technology in different ways than whites. Policymakers relying on the erroneous ubiquitousness of Internet and broadband technologies have made poor policy choices. For example, the FCC, in part, based its relaxation of the media ownership rules on the mistaken belief that these new technologies expanded the media market. The FCC ascribed the white middle class Internet experience to all media consumers. These uninformed policy choices cause unremediated broadcast consolidation to lead to fewer voices in the marketplace and further shrinking of access to diverse content.

Many minorities are excluded from the broadcast and Internet marketplace of ideas. Diverse media content is important for participation of people of color in the democratic process. Recent studies have shown that the presence of local Spanish-language newscasts and Black-owned radio have been instrumental in increasing minority voter turnout. Other studies have shown that minority-owned broadcasters are more likely to broadcast minority content, thereby providing a forum for issues of consequence to minority voters.

Here are three actions that the government, the minority community, and journalists can do to correct this serious media underrepresentation and misrepresentation.

First, the FCC should re-establish race-conscious programs designed to increase the number of minority owners. After Adarand v. Pena, the FCC virtually eliminated all of its affirmative action programs. During the administration of Chairman Kennard, the FCC commissioned several studies that showed that minority broadcasters were discriminated against by the communications industry, capital markets, and advertisers. These studies established prima facie evidence necessary to re-establish race-conscious ownership programs.

Second, David Honig, the Executive Director of the Minority Media and Telecommunications Council, Janis Hazel, a former Pacifica Radio executive, and Syracuse Law Professor LaVonda Reed-Huff are organizing an effort to establish a Minority Anti-Defamation Coalition. This organization will compile examples of racist hate speech that occurs daily on talk radio and in other venues. Compiling this data will allow the minority community to shine a light on racist and discriminatory media demonstrating to the broadcast owners and the FCC the prevalence of this problem. It will also allow the minority community to take concerted action against broadcasters and advertisers who foster hate speech. For example, the minority community annually spends an estimated $1.3 trillion, and could be educated to refrain from purchasing goods and services from those advertisers who support anti-minority programming.

Third, journalist’s ethics code needs to specifically ban race discrimination. For example, the Ethics Code of the Society Professional Journalists provides that journalists should: “[a]void stereotyping by race, gender, age, religion, ethnicity, geography, sexual orientation, disability, physical appearance or social status.” Unlike other professions, Dean Blake Morant of WakeForestLawSchool points out that the journalist professional code fails to expressly include a ban on racial bias; it merely provides that the journalist should “avoid” stereotyping.” Morant recommends that the journalism code of ethics be revised to ban racial bias in reporting. Moreover, the Society of Professional Journalists fails to enforce its code on First Amendment grounds; it needs to enforce it. These changes would give the journalist profession a chance to regulate itself to ensure that they treat race issues in a fair, unbiased and balanced manner.

Taken together, these three actions by the government, by the minority community, and by the journalist profession will help combat media absences and stereotypes. It would allow a more complete marketplace of ideas so that the government and the public won’t be “bamboozled” in adopting policies because they think they affect (or favor) just a disfavored minority group.

THE WORRISOME DIVIDE IN LEGAL EDUCATION AND IN THE LEGAL PROFESSION

Brian Tamanaha — Tue, 27 Nov 2007 14:01:00 GMT

A marked divide has developed among law schools and within the legal profession that has significant implications for individual lives and for social justice. The situation is well known, but has yet to be examined seriously and comprehensively.

A substantial majority of graduates from top 20 law schools take positions in corporate law firms. These newly minted lawyers are well compensated. Leading New York law firms pay first year associates up to $165,000 a year. Most of these firms also pay year end bonuses that range from $30,000 to $65,000. Starting lawyers at corporate law firms in other major cities earn a bit less, but they are still paid handsomely. Within five years, these corporate lawyers can earn $250,000 annually.

But what about the prospects for law graduates from non-elite law schools (the 160 or so law schools outside the top 20)? Typically, only the top 10 percent of the graduates from these law schools land corporate law jobs. At many law schools the number is much lower. The remainder—a majority of law graduates each year—work for the government or in small firms that serve individuals or other non-corporate clients. The pay for this large group of lawyers has decreased in real terms in the past two decades (as documented in Heinz, et. al., Urban Lawyers (Chicago 2005). Many of these lawyers earn starting salaries in the $40,000 to $50,000 range, with modest increases over time. A number of graduates do not even land these jobs, relegated instead to part time legal positions (serving as legal “temps”) or non-legal positions. Heinz’s study showed that lawyers who start out in the non-corporate “hemisphere” rarely make a transition into corporate legal practice, so a lawyer’s career is relatively set at the outset.

Although lawyers have markedly contrasting earning potentials, they pay about the same tuition. Elite and non-elite private law schools charge around $35,000 per year for tuition; tuition for public law schools ranges more widely, with many set between $10,000 and $20,000 per year. Students must pay an additional $10,000 to $15,000 per year for living expenses.

The out of pocket cost of a law degree thus approaches $150,000 for private law schools, and can reach $100,000 for public law schools. Students who borrow to cover their legal education pay much more over time. Although a law degree still pays for anyone in line for a corporate law job (for a $150,000 investment, a graduate can earn $800,000 to $900,000 in the first five years alone), for everyone else it is a closer call. Remember that every potential law student already has an undergraduate degree, which represents earning potential (and three years of law school entails three years of lost income).

What does this mean for individuals thinking about becoming a lawyer?

Anyone admitted to an elite law school is in good shape—by all means, go. Everyone else, however, should think long and hard about whether attending law school is the right decision. Specifically, one must take a close look at the financial implications of attending law school: how much money will be borrowed, the expected amount of the monthly payments upon graduation, and expected income upon graduation. Too few prospective students sit down and crunch the numbers. An after tax monthly income of $3,000 (based on a gross income of about $45,000) sounds pretty good, until the $1,200 monthly loan payment is factored in.

They key here is to be realistic. While many entering law students think (or hope) that they will be in the lucky top 10 percent that land the corporate law job, the hard truth is that 90 percent of graduates will not get these jobs, and will therefore earn far less over time. Given these long odds, a prospective student with a degree in engineering or business, or other fields with solid earning potential, or people who already have decent jobs, might be better off not going to law school.

Today, the only reason to go to law school (at least outside of the elite schools) is that one is absolutely determined to become a lawyer. For everyone else, law school is a long, expensive, laborious slog, which offers uncertain rewards.

What does this mean for social justice?

One implication of the current situation is that becoming a lawyer is no longer the sure path to upward mobility that it once represented. It can still deliver this social benefit, to be sure, but the cost barrier is becoming increasingly burdensome. People from low income backgrounds may shy away from taking on huge debts to attend law school. Not only will this be socially detrimental, it will be a regressive development for the legal profession, as lawyers will increasingly almost exclusively come from upper middle class and wealthy backgrounds (as was the case a century ago).

Another implication relates to the provision of legal services. Students who enter law school with the desire to work in public service positions often instead become associates at corporate law firms owing to concern about the hefty loan they must repay. Many elite law schools offer debt forgiveness programs for students that take low paying public interest jobs, but most graduates do not enjoy this benefit. What this means is that fewer and fewer lawyers can afford to work in public service positions. If current trends continue, moreover, it is possible that low paying legal positions of all kinds will go unfilled, as these positions make no economic sense for law graduates (only the desperate will take them). This sector of the legal market consists of the needs of poor individuals, chronically underserved as it is, and promising to worsen.

Another set of consequences relates to the financial pressures put on lawyers and the growing chasm in the legal profession. Although it is true that lawyers have always focused on making money (notwithstanding protestations otherwise), it is not true that lawyers in the past have exclusively focused on making money. Lawyers have also espoused and often tried to live up to a set of professional values. As the cost of becoming a lawyer rises to ever greater heights, lawyers cannot help but be increasingly concerned with making money. Lawyers may be less inclined to take a stand against an unethical course of action desired by a client if they are worried about losing the client to another lawyer. More generally, the professional bonds that lawyers share will be frayed by the fact that the profession is starkly divided into such different hemispheres.

Some of these implications for individuals and for social justice have already begun to show. As a society, we must begin to pay attention to the situation before it worsens beyond our control. It may already be too late.

THE NO CHILD LEFT BEHIND ACT AND ENGLISH LANGUAGE LEARNERS: THE TICKING CLOCK ON REAUTHORIZATION

Rosemary Salomone — Tue, 23 Oct 2007 12:00:00 GMT

In January 2002, President Bush signed into law the No Child Left Behind Act. The NCLB was an ambitious attempt to revamp the federal role in education by placing high accountability on states and school districts to improve student achievement as measured by standardized tests. As a condition for states to receive federal funds, the law mandates that they test students in reading and math annually in grades 3 through 8 and at least once during high school. Beginning in 2007-08, states must also include science assessments at least once in three grade spans covering grades 3 through 5, 6 through 9, and 10 to 11. Enacted with broad bipartisan support but clouded with controversy from its beginning, the Act is up for reauthorization in the coming year.

As proposed revisions now circulate, the testing provisions that directly affect the more than 5 million students who are not proficient in English continue to provoke heated debate. The details underscore how the complexities of language and bilingualism have yet to be resolved since Congress enacted the 1968 Bilingual Education Act which Title III of the NCLB replaced. They also make clear how the linguistic potential of the increasingly large and diverse group of “English language learners” (ELLs) remains under the national political radar screen.

The 1968 Act was a modest program offering “seed money” on a competitive basis to states and localities. Although originally designed to address academic failure and high dropout rates among Spanish-speaking students, it was extended to other groups largely to avoid legal challenge. Its goal was to meet the “special educational needs” of children with “limited English-speaking ability” between the ages of three and eighteen whose families fell within the poverty guidelines and who came from “environments where the dominant language” was “other than English.” Yet despite its title, the Act failed to define “bilingual education” or the role that the child’s home language and culture would play.

Subsequent revisions focused on the English language abilities of the students and, depending on the mood in Congress, intermittently encouraged the participation of English-speaking students to avoid racial/ethnic segregation. And while the poverty factor (dropped in the 1974 amendments), along with the underlying deficit rationale, may have proven politically effective in the 1960s’ world of compensatory education, both cast a stigma from which the approach still struggles to recover. Through the years it became progressively apparent that the goal was solely to develop English language skills and not bilingual proficiency. Bilingual programs thus became “educational medicine” for the poor and the disadvantaged rather than a tool for developing the linguistic abilities of all students.

As time wore on, a confluence of forces created a backlash against using the child’s home language even as a bridge to learning English. Growing concerns over immigration from Latin America and the dominance of Spanish speakers in certain parts of the country, reports of Spanish-speaking students languishing for years in bilingual programs without adequately learning English, and attempts by the federal government to legally mandate bilingual instruction following the Supreme Court’s 1974 decision in Lau v. Nichols all fanned the flames of opposition. By the late 1990s, English Only proponents had gained significant traction, giving rise to state ballot measures, notably in California, Arizona, and Massachusetts, mandating sheltered English immersion, typically for one year, while allowing parents limited opportunities to waive their children into bilingual programs. Meanwhile, the anti-bilingual mood coalesced with the state accountability movement sweeping the country. Both took firm hold in Washington, giving rise to the No Child Left Behind Act.

Title III of the NCLB effectively dismantled the Bilingual Education Act. In contrast to the old competitive structure, Title III distributes funds by formula to each state depending on enrollments of “limited English proficient” students. From its new title, the “English Language Acquisition Act,” to the newly named Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited-English-Proficient Students (formerly the Office of Bilingual Education and Minority Affairs), the law erased from the federal lexicon any reference to bilingualism or bilingual education. More fundamentally, it shifted the federal goal from enhancing “equal educational opportunity” to closing the “academic achievement gap.” Rather than focus on instructional “inputs,” the new law holds school systems accountable for producing “outputs” as measured by standardized tests. A school that fails to make “adequate yearly progress” risks being “restructured.”

Title III neither mandates nor precludes any particular teaching approach. It merely provides that programs “may make instructional use” of English and of the child’s native language to develop English proficiency and “may include” English proficient students to develop both language skills, a concession to dual language immersion programs that are increasingly popular among middle-class parents. Yet the law contains strong deterrents on both counts. Threaded throughout are repeated references to “attain[ing] English proficiency” and developing “high levels of academic attainment in English.” The fact that schools are judged by the percentage of students reclassified as fluent in English each year creates a powerful incentive to set aside native language instruction in the interest of quickly developing English language skills.

The testing requirements have generated widespread disagreement and proven particularly problematic for students who lack proficiency in English. While all students must be included in math testing, regulations published by the Department of Education in 2006 exempt ELLs from taking the state’s English reading/language arts assessment but only on the first administration after they enroll in U.S. schools. Beyond that point, their scores are counted in the school’s accountability rating. The arguments challenging those requirements bear directly on language and demand particular attention in the reauthorization process.

ELLs differ widely in language fluency, years and quality of prior schooling, family background, and other factors. And so to classify them into one group for accountability purposes, and to impose the same time-frame for all to achieve English language proficiency, clearly defy sound pedagogy and are simply unjust. Indeed research findings indicate that it can take from one to six years for ELLs to become proficient in oral English and from four to nine years in academic English. The ELL group, moreover, is constantly in a state of flux. New students speaking limited English enter while those who arguably have gained proficiency leave for the mainstream, both events pulling down average scores. This creates a “treadmill effect” where the group’s average performance is unable consequently to progress very far or to give an accurate reading of either overall student improvement or program success.

The NCLB permits states to administer the reading/language arts and math assessments in the student’s native language, or to use accommodations on the English assessments for the first three years the student has been in U.S. schools, with up to two additional years depending on individual circumstances. One apparent drawback is that native-language assessments are only meaningful for students who have received instruction in their native language and are literate in that language. Unfortunately, some immigrant students enter the country with little or no schooling. Moreover, contrary to popular belief, an estimated two-thirds of those classified as ELLs are not immigrants but native-born Americans. Many are “semilingual,” that is, proficient in neither English nor their home language. For any and all these reasons, native language assessments are especially inappropriate for the growing number of students enrolled in sheltered English immersion classes.

As an alternative, some educators believe that simplifying the English wording of test questions is a more effective way to assess ELLs. Yet it is difficult to simplify language without also simplifying constructs and some content. In either case, whether translation or simplified English is used, the tests’ validity and reliability are seriously compromised. In addition, with upwards of 460 languages reportedly spoken among ELLs nationwide, native language tests are unduly costly to develop in the case of less mainstream languages, including the numerous Native American tribal languages.

Despite all the persuasive arguments against the current testing mandates, however, groups like the Mexican American Legal Defense and Educational Fund and the National Council of La Raza, longtime advocates of bilingual instruction, resolutely defend the No Child Left Behind Act and oppose any proposals to exempt ELL students from standardized tests for more than the one year now allowed. For them, test results hold school officials’ feet to the fire to successfully move students toward meeting state standards. At the same time, these groups continue to press for valid and reliable state assessments, preferably in the student’s native language.

It cannot be denied that the NCLB has raised the visibility of ELLs among policymakers and underscored the responsibility of public schools to achieve results. Nor can anyone refute the importance of students acquiring English proficiency or the critical need to close the achievement gap between minority and white students. But in the rush to get a “quick fix” on English, the law effectively overlooks the native language of ELLs, implicitly treating it as a problem rather than a resource. In the end, it shortchanges those students with the greatest potential to cross linguistic and cultural borders in a world that is fast becoming politically and economically more inter-connected.

As congressional members wrangle over how or even whether to resolve the testing problem among the Act’s other flaws, it remains to be seen where the lines of consensus will fall. Yet one thing is certain. All seem to be caught in a baffling time warp of English monolingualism. In the meantime, as the clock ticks toward 2008, upwards of 5 million English language learners continue to be fed a steady diet of “teaching to the test” while their linguistic talents and cultural sensitivities remain largely untapped.

“The Audacity of Hope” and the 2008 Elections

Janai Nelson — Fri, 28 Sep 2007 09:35:00 GMT

By Janai S. Nelson

September 28, 2007

     Hope has been a common theme of the handful of Black presidential candidates in America. The New York Times called Shirley Chisholm’s 1972 foray into presidential elections “a venture in the politics of hope.” In his 1988 concession speech, Jesse Jackson rallied us to “keep hope alive." And, in his most recent book, Barack Obama dared us to hope with audacity.

     And there seems much to be hopeful about. Oprah Winfrey, a Black woman, who is one of the wealthiest and most influential people of our time, recently endorsed Obama, a Black man, who currently stands as one of the leading presidential nominees of a major political party and the most viable Black presidential candidate to date. At a glance, a more promising and hopeful picture could not be painted for racial advancement in America. However, there is a notable downside to this powerful imagery. Although a recent Gallup poll shows that the percentage of Americans responding positively about matters of race is only slightly higher in 2007 than it was in 2006 and preceding years, in popular discourse on race Obama’s candidacy is often referred to as an example of African-American success and the country’s overall progress toward racial equality.

    Indeed, the salience of Obama’s candidacy inadvertently invites the conclusion that the problem of race is past and exacerbates the “race fatigue” that has set into the American psyche in recent decades. With few exceptions, America appears, at best, to be increasingly numb to or, at worst, exhausted by claims of racial discrimination. For a palpable example, look at the instant malaise surrounding Katrina. As it concerns allegations of race discrimination in the election arena in particular, the image of a fresh-faced Obama and his multiracial throngs of supporters threatens to transform race fatigue from a dull yawn to a state of “racial comatose.” Certainly, if American politics can peacefully sustain the viable candidacy of a Black man, with a Black family, and an even Blacker name, we must have achieved the dream. To suggest that there are still real barriers to full and equal political participation in American politics that have inadvertent or intentional racial dimensions consequently becomes an audacious claim.

    But all hope is not lost. The solution to claiming Obama’s candidacy as a success story for race relations in America while still confronting racial inequality, lies in perceiving Obama’s candidacy along a continuum and acknowledging the racial inequities in political power and access. The dialogue that surrounds race must struggle to reconcile electoral successes with the realities of African-American voters. Race discrimination in the electoral process, like race discrimination more broadly, need not be divorced from racial progress, but neither can it be eclipsed by it or by Obama’s seismic popularity. Indeed, as with most goings-on of great political salience, the fact of Obama’s candidacy has little direct bearing upon the manifold challenges that will confront everyday citizens as they seek to cast a meaningful vote in the 2008 elections.

    Take for example the matter of voter identification (ID) requirements, the practice and policy of denying voting rights to persons with felony convictions, otherwise known as felon disfranchisement, and the phenomenon of racial bloc voting. These three distinct issues illustrate both the complexity and variety of election laws and practices that constrain and even impede political participation among African Americans and other minority groups. I take them in turn to expose the potential impact on minority voters in the 2008 elections, and consequently on Obama’s candidacy, despite Obama’s success to date.

Voter Id Requirements

     As the latest wave in election reform, the political and highly partisan tempest of voter ID requirements is dominating election law discourse. If you have not been following the controversy, your initial reaction rightfully might be that voter ID requirements are a no-brainer—they apply to everyone and are a legitimate and appropriate requirement of anyone who wants to exercise the franchise. But the various state laws that impose such requirements demand a more critical analysis as do the recent federal court opinions that have decided challenges to these laws. This is so because of what the treatment of these proliferating regulations of the vote means for our underlying democratic principles, our reliance on the Constitution, and our concerns about minority voter participation.

     Each of these factors was a backdrop to the Supreme Court’s opinion in Purcell v. Gonzales last year where the Court unanimously upheld the use of Arizona’s voter ID requirements amid allegations that the laws were unconstitutional and would wreak havoc upon minority voter participation. The Court did not reach its result by closely weighing the interests of protecting voter access and the right to vote against preventing voter fraud, but, rather, by reasoning that the imminence of the election and the inadequate record on which to resolve the factual disputes in a timely manner made it “of necessity” that the election proceed without suspending the voter ID requirements. The Court reached this conclusion despite evidence that voter ID requirements resulted in nearly 1/6 of all voter registration forms being rejected over a two-year period in Arizona’s largest and most racially diverse county and absent any evidence of voting fraud that could be prevented by the ID requirements. The Court’s willingness to err on the side of potentially infringing upon the fundamental right to vote with no empirical counterweight and in the face of allegations of race discrimination is telling.

    Even outside of the courtroom, there appears to be little empirical evidence of the impersonation fraud that theoretically could be cured by voter ID requirements despite the racially disparate impact such requirements might cause. What evidence there is of fraud usually relates to absentee ballots--not the impersonation fraud that voter id requirements might bear upon. By contrast, a report commissioned by the Election Assistance Commission in 2006, which it reluctantly released only after revising several of the report’s findings, showed that racial minorities are less likely to vote as a result of increasingly restrictive voter identification requirements. Other developing research and anecdotal evidence compel the same conclusion.

    Just this week, the Supreme Court agreed to take a voter ID case from Indiana, Crawford v. Marion County Board of Elections, in which similar arguments of fraud prevention and disparate impact are being raised. In light of the Court’s unanimous endorsement of empirically unsupported claims of fraud and its rejection of race-based claims of voter disfranchisement through the use of voter ID requirements in Purcell, the Supreme Court’s intervention is troubling, to say the least. Indeed, the failure of federal courts to grapple seriously with allegations of race discrimination resulting from the use of voter ID requirements, coupled with growing support for or indifference toward these new regulations speaks volumes about Americans’ interest in examining political inequities based on race. And, with Obama’s success, it becomes an even a harder story to tell. Ironically, Obama’s ultimate success at the polls may be tied directly to whether voter ID requirements have the predicted impact of excluding a significant portion of minority and poor voters from the voting booth.   For these reasons, Obama’s success cannot be perceived in a vacuum.

Felon Disfranchisement

    Felon disenfranchisement laws—laws that bar persons from voting either temporarily or permanently because of a felony conviction—deny an estimated 5.3 million Americans to right to vote. Of those disfranchised Americans, 1.5 million are Black citizens, of which 1.4 million are Black men. Looking at it another way, 13% of Black men in America cannot vote because of felon disfranchisement laws—a rate nearly seven times the national average. Black women are not spared either. An estimated 245,925 Black women in this country are prohibited from voting because of a felony conviction, leaving one of every fifty Black women outside the voting booth at a rate three times the national average for women.

    Not only do felon disfranchisement laws literally lock citizens out of the political process, they harm specific racial groups by disproportionately denying their members the right to vote and thereby diluting the voting strength of the group as a whole. There are other ancillary harms associated with the enforcement of felon disfranchisement laws such as the over-purging of minority voters from the registration rolls because they are disproportionately misidentified as having a felon conviction.

    Like voter ID requirements, felon disfranchisement laws threaten the success of candidates like Obama by denying voting rights to what would otherwise be a natural base of voters and contributing to the overall apathy of minority voters. So while racial discrimination in the electoral process may appear ostensibly to be diminished by Obama’s success, failure to confront it will ultimately harm his electability.

Racial Bloc Voting

    Those who are eligible to vote and meet the necessary ID requirements will face another barrier to casting a meaningful vote at the polls: racial bloc voting. Racial bloc voting is a practice whereby members of a racial group vote as a bloc usually to defeat the vote of other groups. It is a less obvious restriction on voting power than voter ID requirements and felon disfranchisement laws but, in many ways, it is a more powerful one.

     To be sure, there is overwhelming data in recent polls to suggest that Americans of all races would be willing to vote for an African-American candidate. In fact, 92% of Americans said they would vote for an African-American president. These data however are inconsistent with the pervasive and documented racial bloc voting, or racially polarized voting, that occurs in this country. Indeed, studies show that American voters are notoriously duplicitous when responding to polls of this nature. Pre-election, Americans often say that they would vote for a Black candidate but on election day many instead choose a non-Black candidate if one is available. Even American voters are suspicious of the race neutrality expressed in these surveys: Only 59% of those polled say that America is ready for a Black president even though they overwhelming represent that they would vote for one.

     Other statistics have shown that whites of both the Republican and Democratic parties are less likely to vote for their party’s candidate when he or she is Black, regardless of the candidate’s qualifications. Nationally, white Republicans are twenty-five percent more likely, on average, to vote for a Democratic senatorial candidate when the GOP candidate is Black. And because race, ethnicity, and partisanship are inextricably linked, even when partisanship surfaces as a motivation for candidate choice, the racial implications and potential inherent biases cannot be easily untethered. So, while Obama has enjoyed unprecedented multi-cultural support, it is less than certain that it will translate into equivalent votes at the polls or votes sufficient to overwhelm the racially polarized voting that is sure to present.

     This bleak picture notwithstanding, by nearly all accounts, African Americans are doing better now than their ancestors and are indeed thriving in many respects. However, there remains substantial work to be done to undo the myriad and compounded harms inflicted by slavery, perpetuated through Jim Crow, and that are bred daily because of extant racism. Accordingly, Obama’s candidacy, while promising, should not leave anyone with the hope that we have somehow solved the matter of racial inequality in the election arena or elsewhere. Indeed, his electability depends on it.

The Network of Terror and the Network of Law

Chris Borgen — Tue, 28 Aug 2007 01:00:00 GMT

One of the tropes of the current Administration is that the Global War on Terror is a new kind of war and a new kind of war needs new rules. This has been the heart of arguments supporting “enhanced” interrogation techniques, detaining suspects without charge in Guantanamo and elsewhere, easing of restrictions on domestic wiretapping, and the use of military commissions to try suspected terrorists, among other policies. But does this claim of a new war requiring new rules hold up under scrutiny?

There is little doubt that the nature of armed conflict is changing in profound ways. Some call the period we are entering the “fourth generation of warfare,” a term that was defined in a seminal article in the Marine Corps Gazette in 1989 and has recently been reconsidered by John Robb in his book Brave New War. By this nomenclature, the mass warfare exemplified by the Napoleonic Wars was the first generation. The Industrial Revolution spurred the second generation, which was typified by the harnessing of entire economies to produce war materiel and which reached its peak in the deployment of new weapons systems in World War I. The third generation was a reaction to the second and was based on new strategies of maneuver warfare. This generation was fully realized in World War II with the use of the blitzkrieg; during the Cold War it was typified by fears of Russian tanks storming through the Fulda Gap. The laws of armed conflict shifted and adapted in each of these instances to respond to the new ways that war was fought. But in each case, the change in law was an attempt to curb the worst proclivities, not enable them. The advent of cheap and powerful computers and global communication has heralded the fourth generation of warfare (or “4GW”), an era of “super-empowered” individuals who are able to act in a manner —for good or evil—that formerly had been the preserve of states.

The Information Revolution has revolutionized the organization and the use of force. By and large, terrorist organizations are no longer top-down hierarchies. They are decentralized networks, a web of relationships linking “nodes” (which may be individuals, cells, organizations, states, and other networks). Each “node” can serve different functions (such as fund-raising, organizing, or executing a plan) for different operations. Moreover, decentralization means that nodes do not generally wait for orders but are more entrepreneurial in finding targets of opportunity and organizing the resources needed for a particular operation.

This leads to various implications for U.S. foreign policy. First of all, a simple military assault alone will not be enough to destroy a decentralized network. In addition, one must use the network of laws to disrupt the network of terror. Unfortunately, recent pronouncements have treated international law as hampering U.S. policy at best and as a weapon againstU.S. interests at worst. For example, the 2005 National Defense Strategy warned that

[o]ur strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.

Some have started using the term “lawfare” to describe law being used as a weapon, often against America. Rather than viewing the rule of law as an asset, it has suddenly become characterized as a liability.

And this is the key problem: while it is correct that 4GW is a different type of conflict, it is one in which the rule of law, both domestic and international, is one of our greatest strengths. Unlike the previous generations, guerilla conflicts are, in the words of John Robb, “primarily moral conflicts” where “[t]he key is maintaining moral cohesion.” Referring to the arguments of Israeli military strategist Martin van Creveld, Robb explains the dilemma of a democracy embroiled in a fourth generation conflict:

when the strong are seen beating the weak (knocking down doors, roughing up people of interest, and shooting ragtag guerillas), they are considered to be barbarians. This view, amplified by the media, will eventually eat away at the state’s ability to maintain moral cohesion and drastically damage its global image.

As the state’s soldiers continue to fight weak foes, they will eventually become as ill disciplined and vicious as the people they are fighting due to frustration and mirror imaging…Citizens lose their feeling of solidarity with the goals of their government when they perceive it to be acting immorally.

There has been no evidence shown that the repudiation or reinterpretation of our international legal obligations and the weakening of Constitutional protections against torture, widespread domestic wiretapping, and lengthy detention without trial have enhanced our security in a meaningful way. (See also the excellent New York Times op-ed by former prosecutor Kelly Anne Moore on the strengths of federal courts in anti-terrorism cases.) While it is true that we have not suffered a major attack since 9/11, there is no evidence that a major attack was prevented because of one of these techniques of questionable legality. To the other extent, they have worn away at our Constitutional protections, have driven deep wedges into our political culture, and have undermined some of our most important diplomatic relationships.

Some would respond that such measures are only necessary for the duration of the conflict. But how shall we know that this war is at an end? We cannot expect the eradication of all terrorism. The answer one hears most often is that the war will be over when the threat from al Qaeda is extinguished. But this is a bit of linguistic sleight-of-hand. Al Qaeda as we knew it is largely gone; much if not most of its original senior leadership has been killed and its original bases have been destroyed. But al Qaeda 2.0 (as some analysts have called it) lives on and, when one understands the nature of terror networks, it is likely that some type of entity named al Qaeda may exist for quite a long time. What we now call al Qaeda is often comprised of people who began their activities since 9/11, with little direct link to bin Laden. It is a mushrooming of new cells with similar goals and symbols, each of which can act as a node in a broader network. Al Qaeda is becoming more of the rallying cry of a movement than a single coherent organization.

The problem is that the foe we are fighting—a transnational terror network—is not a state and so the normal signifiers of the end of a war—peace treaties, summit conferences, and the like—simply do not apply here. Fourth generation warfare may seem new, but some old verities apply. Despite the new technology, it is a conflict where the psychological aspect is central, where it is important that we not be seen to jettison who we are simply because of who we fight. Consequently, the rule of law is vital in this twilight struggle because it helps define who we are by what we fight for. It helps maintain the moral cohesion that we need in order to prevail in a fourth generation conflict. And, notwithstanding claims that it is necessary to rewrite our constitutional order and reject our international obligations (based on evidence that we cannot be allowed to see), it is poor strategic thinking to sell short the network of law.

International terrorism does not threaten the very survival of our country. The idea of America can die, however, from self-inflicted wounds, a sort of death by a thousand cuts in which we continually slice away at some basic part of who we are in reaction to various threats and stresses. This is one of the insights of the theories of fourth generation warfare and yet, somehow, it is the key lesson that this Administration has missed.

The Morality of Using Race to Achieve Racial Balance in K-12 Public Schools

Leonard Baynes — Tue, 17 Jul 2007 13:32:00 GMT

In the recent Louisville and Seattle desegregation decisions, a plurality of the U.S. Supreme Court made it tougher for school districts to achieve racial diversity and eliminate racially isolated public school systems. In essence, the plurality found an immoral equivalence between using race to include and using race to exclude. This equivalence is not only incongruent but also immoral.

Writing for the plurality, Chief Justice John Roberts declared the school assignment plans unconstitutional because they focused on illegitimate racial balancing. Roberts proclaimed that the “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Roberts equated the school assignment plans designed to achieve racial diversity to the separate-but-equal regime that existed prior to the Brown v. Board of Education decision. Roberts said that

Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again—even for very different reasons.

In a concurring opinion siding with the Chief Justice, Justice Clarence Thomas compared dissenting Justice Stephen Breyer’s opinion, which would have upheld the race-conscious school assignment plans, to the arguments of segregationists in the pre-Brown era.

The plurality’s misguided sense of immorality is out of sync with the precepts of many mainstream religions, which favor the use of race to foster racial inclusion and diversity in order to avoid racial isolation. For example, Catholic Social Thought teaches that “equality does not mean uniformity.” Equality of treatment recognizes differences. In 1979, the National Conference of Catholic Bishops issued a Pastoral Letter on Racism that condemned the subtly racist structures of U.S. society. The Bishops noted that these structures reflect the values which society upholds and are “geared to the success of the majority and the failure of the minority.”

The Bishops presciently questioned the motives of those in the antidiversity movement. They wrote:

[R]acism is sometimes apparent in the growing sentiment that too much is being given to racial minorities by way of affirmative action programs or allocations to redress long-standing imbalances in minority representation and government-funded programs for the disadvantaged. At times, protestations claiming that all persons should be treated equally reflect the desire to maintain a status quo that favors one race and social group at the expense of the poor and the nonwhite.

Finally, the Bishops recognized that racism obscures the evils of the past, denies the burdens that history has placed upon minorities, and fails to acknowledge the need for restitution and restorative and redistributive justice.

Moreover, the Court’s plurality fails to take into account the historic reality that segregation played (and still plays) in our society. The plurality fails to recognize that many people of color still have little geographical choice in the location of the family home or the K-12 school assignment of their children. The choices of people of color are often limited by the immoral and discriminatory acts of builders, real estate agents, bankers, insurance companies, and local zoning boards.

The plurality would make it virtually impossible to rectify major educational inequities in society. Urban students of color are most likely to go to inadequately-funded, segregated schools. In fact, nationwide, seventy percent of African American children attend public schools with primarily minority populations. Uncertified and inexperienced teachers are disproportionately assigned to public schools with the most at-risk students making these students’ educations also at risk. As a consequence, in many parts of the country, only sixty percent of high school students receive a diploma within four-to-six years

Gary Orfield’s book, “Dismantling Desegregation: the Quiet Reversal of Brown v. Board of Education” notes that wealthy public schools offer three times more high ability courses than low ability classes. In contrast, schools with high concentrations of poverty offer equal proportion of high ability and low ability courses. So a high performing black student at a high poverty school will not have the opportunity to take as many high-ability classes. More importantly, this student will not receive the depth of the coverage that a similarly situated white counterpart receives at the more affluent suburban school.

The failure to address these educational inequities is immoral. Fortunately, in his concurring opinion, Justice Anthony Kennedy implicitly acknowledged that the plurality opinion was immoral. Kennedy specifically stated: “this Nation has a moral and ethical obligation to fulfill its historic commitment to creating an integrated society that ensures equal opportunity for all of its children.”

Although Justice Kennedy supplied the key fifth vote overturning the school assignment programs for failure to satisfactorily explain the reasons for the assignment programs, he joined the dissenting justices in permitting the use of race in school assignment cases. Kennedy explained his disagreement with Roberts:

The plurality opinion is open to the interpretation that the Constitution requires school districts to ignore the problem of de facto resegregation in schooling. I cannot endorse that conclusion. To the extent that the plurality opinion suggests the Constitution mandates that state and local authorities must accept the status quo of racial isolation in schools, it is, in my view profoundly mistaken.

By finding a false moral equivalence between the use of race for segregation and the use of race for diversity, the plurality opinion would leave us paralyzed to address the discrimination that caused the school systems to be segregated in the first place and the still present societal discrimination that causes them to remain segregated. In my opinion, the plurality opinion is immoral.

Commending Opinion Announcements by Supreme Court Justices

John Q. Barrett — Mon, 04 Jun 2007 13:15:00 GMT

The Supreme Court of the United States historically announces its decisions in open court and only then, after its announcement ritual has concluded, does it release the Court’s and individual Justices’ written opinions on paper (and, in modern times, electronically).

Last Tuesday, the Supreme Court decided an important case, Ledbetter v. Goodyear Tire & Rubber Co., Inc., about the limits of remedies under current federal law for employment discrimination against women. The Court held that the federal law required that Ms. Ledbetter’s claim that she was paid less than men solely on that basis should have been filed within 180 days of the discrimination starting, even though management and male silence prevented her from learning until years later that she was being paid less than her male peers. The Court held that her lawsuit was properly dismissed because she filed it after the 180-day period.

In Ledbetter, the Court divided 5-4. Justice Samuel Alito first announced his opinion for the majority (himself, Chief Justice John Roberts, and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas). The Court also announced that Justice Ruth Bader Ginsburg had written (for herself and Justices John Paul Stevens, David Souter and Stephen Breyer) a dissenting opinion. And then Justice Ginsburg herself read, in court, the substance of her dissenting opinion.

Justice Ginsburg’s oral presentation of her Ledbetter dissent gave extra power and emphasis to the forceful arguments against employment discrimination and for gender equality that she put on paper. Surely that is what the Justice intended—she today is the Supreme Court’s only woman, and she was, in her years as a professor and litigator before becoming a federal judge almost 30 years ago, the pioneer who led the Supreme Court to recognize the unconstitutionality of gender discrimination.

Justice Ginsburg, who is soft-spoken, scholarly, collegial and temperamentally inclined to go after her colleagues’ arguments rather than them personally, had given similar extra emphasis in late April by reading from the bench her dissenting opinion in Gonzales v. Carhart, where the Court, divided into the same 5-4 split, upheld the constitutionality of the federal Partial-Birth Abortion Ban Act.

Justice Ginsburg’s Supreme Court colleagues, current and past, have also, on occasion, read dissenting opinions from the bench in cases they regarded as especially important. For example, in 1994, Justice Stevens dissented orally in a case about a government taking of private property to facilitate flood control. In 1997, Justice Sandra Day O’Connor read her dissenting opinion when the Court invalidated a federal statute protecting religious freedom. Justice Scalia has been the most frequent oral dissenter among the current Justices; he announced his contrary views when the Court struck down Colorado’s constitutional bar against legislation protecting gays and lesbians from discrimination (1996), when the Court invalidated a federal law giving the president line item veto authority (1998), when the Court barred execution of the mentally retarded (2002), when the Court struck down Texas’s criminalization of same-sex intimacy (2003), and when the Court invalidated a display on government property of the Ten Commandments (2005). Justice Souter dissented orally in 1996 from a Court decision striking down a federal statute creating federal court jurisdiction over States’ violations of federal constitutional rights. And Justice Breyer in 2005 read his dissent when the Court reversed a lower court effort to correct its mistake in approving a death sentence.

Should Justices, whether writing only for themselves or for the Court, read opinions from the bench? In fall 1946, newly-appointed Chief Justice Fred Vinson wrestled with that question. Vinson was finalizing his first opinion for the Court (in a Native American land rights case). He knew that he was writing for a Court that was not unanimous, and that Justice Stanley Reed, joined by Justices Wiley Rutledge and Harold Burton, was preparing to dissent strongly. Vinson, sensitive about criticism of the Court and not wanting to encourage more of it, suggested privately to Justice Felix Frankfurter that the Court discontinue announcing opinions orally. Vinson commented that when there is division among the Justices, any opinion-announcer will tend to assume an advocate’s tone, and that encourages press speculation about hostilities among the Justices. Within days, however, Vinson announced his opinion orally, continuing what Frankfurter described as the “practice since the beginning of time.”

(Source: Joseph Lash, From the Diaries of Felix Frankfurter 304-05 & 306 (1975) (entries of November 22, 23 & 25, 1946).)

Do announcements of dissenting and other opinions sometimes become intense, even strident? Of course. Justice James McReynolds, for instance, announcing from the bench in 1935 his dissent from Court decisions upholding President Franklin Roosevelt’s orders taking the federal government off the gold standard, famously uttered extemporaneously a line not found in his written opinion: “The Constitution, as we have known it, is gone.” In 1937, when the Court upheld the constitutionality of the Social Security Act’s unemployment compensation tax on employers, Justice McReynolds, again speaking from deep conviction but not a text, announced that the national “Union [of States] was being destroyed.”

A more sober, extensive and historically significant announcement of opinions occurred in the Supreme Court chambers exactly fifty-five years ago. On Monday, June 2, 1952, the Court decided, 6-3, that President Truman’s seizure of the nation’s steel mills to prevent their closure by labor strike during the Korean War, based on claims of national security and expansive theories of presidential power, was unconstitutional. From the bench, Justice Hugo Black read the Court opinion declaring the President’s action to be unauthorized and illegal. Justices Frankfurter, William O. Douglas, Robert H. Jackson, Harold Burton and Tom Clark (each a Truman friend, and the last two Truman appointees to the Court) then each read his separate concurring opinion. Chief Justice Vinson then read, for one hour and five minutes (and without stopping for the Court’s customary lunch recess), the dissenting opinion that he had written for himself and Justices Stanley Reed and Sherman Minton. An eyewitness, Washington Post reporter Chalmers M. Roberts, wrote that Chief Justice Vinson spoke “with sarcasm and considerable scorn for his judicial brethren [that was] quite obvious to those in the crowded courtroom…” The seven Justices who were filing written opinions in the Steel Seizure Cases spoke for, all told, two hours and thirty-four minutes.

The Justices have recognized “since the beginning of time” that their decisions are enormously significant, for litigants, for the nation’s legal landscape, for citizenry and for our unfolding history. A Supreme Court Justice who chooses to give personal voice to such a view—from the Vinson Court Justices in 1952 or Justice Ginsburg last week following a careful, powerful text, to a more McReynolds-like Justice who simply howls deep disapproval—is engaging in a public-addressing, publicly accountable and thus commendable part of his or her judicial service.

Speak on, voice of justice. Speak up, voice of each Justice.

The Return of Madness in the Courtrooms

Elaine Chiu — Thu, 24 May 2007 19:37:00 GMT

With the conviction of former fashion writer Peter Braunstein, another sensational trial has come and gone in New York City. This is nothing new. But this trial left its mark not only on the pages of tabloids but also on the letter of the law. Peter Braunstein was charged with kidnapping, sexual abuse, arson, burglary and robbery. On October 31, 2005, he faked a fire, pretended to be a firefighter to gain access to a former co-worker’s apartment and then drugged her, tied her up and sexually molested her for over thirteen hours. In his defense, his attorneys offered a new twist on two old favorites in criminal law: insanity and mens rea. One courtroom observer termed their strategy the “absence of intention” defense.

In his summation, the lead defense lawyer described how the serious mental deterioration of his client destroyed his ability to act intentionally. Because of his mental illness, he attacked his victim in a vague haze or improvisational fantasy, but most importantly, he attacked without intent. Thus, Peter Braunstein lacked the mental state required by statute to be guilty of these heinous crimes (in other words, the mens rea) and deserved to be acquitted.

Why the new defense? The defense team readily admitted that they wanted the jury to consider their client’s mental illness but had ruled out the classic insanity defense as being too narrow. In New York, a person is legally insane only if he lacks substantial capacity to know or appreciate the nature and consequences of his conduct or that his conduct was wrong. This precise definition reflects the national rejection of a broad approach to mental illness. However, the law on insanity has been broad before. In the past, some standards for insanity have simply asked whether a defendant’s conduct was the result of mental illness while others incorporated the concept that mental illness can lead to irresistible impulses. States rejected these more generous tests after the uproar when John Hinckley was acquitted on grounds of insanity for the attempted assassination of President Ronald Reagan in 1981.

Under their new absence of intention defense, Braunstein’s lawyers could go beyond the confining parameters of New York’s insanity definition. They could suggest that mental illness drove their client to kidnap and molest his victim, that there was a “biological” explanation for his behavior, and that he lacked any conscious control over his actions. Trial judge Thomas Farber had little choice but to allow evidence of how mental sickness affected the ability of the defendant to form the culpable mens rea required. This, after all, was nothing more than a classic failure of proof argument, simply rooted in mental illness.

The clever cloak of mens rea enabled the defense to introduce nifty brain scans, authoritative expert testimony and disturbing journal entries penned by the defendant himself. These brain scans were positron emission tomography or PET images of Peter Braunstein’s brain taken shortly after his arrest. A well-known expert psychiatrist named Dr. Monte Buchabaum testified that the brain scans proved Peter Braunstein suffered from schizophrenia and described the inability to plan, to think ahead and to make judgements. Excerpts from the defendant’s journal entries described conversations he had had with God, spewed hatred against people in the fashion industry and promised even more violence.

All of this evidence is familiar as the evidence typically featured in an insanity hearing. Indeed, defense expert Dr. Buchabaum is famous because of his past testimony in the federal case against mobster Vincent (The Chin) Gigante who initially tried to plea insanity but ultimately admitted to faking crazinesss in order to stay out of prison.

Consideration of all this evidence and discussion about mental illness and its effect on Braunstein’s behavior was an important victory for defendants everywhere. Even though the mental illness here did not fit within the narrow parameters of the legal insanity test in New York, the jury still got to hear all about Peter Braunstein’s mental problems. Such evidence slipped through a back door that was left open, even after the deliberate rejection of a broad approach to mental illness.

In Peter Braunstein’s case, this evidence did little good in the end. Maxine Rosenthal, the lead prosecutor, reminded the jury how the law only required that the defendant behaved with purpose and how this purpose need not be long-term. Instead, in the moments when Peter Braunstein pretended to be a firefighter, put a gun to his victim, tied her up, stripped her naked and abused her, he had to have acted with conscious objective. Four hours after receiving the case, the jury returned with a resounding decision to convict on all charges except arson.

Should this back door for mental illness exist in the criminal justice system? Upon learning of his son’s fate, Alberto Braunstein, the defendant’s father, remarked that mental illness has never been recognized in this country. This is an exaggeration, but he is correct that the law has yet to come up with a satisfying approach to mental illness and crime. Current definitions of insanity seem excessively strict and the admission of evidence through creative defense strategies is appealing, at least as a way to overcome their narrowness.

However, keep in mind that the next time a more compelling case comes along and a jury agrees that mental illness drove a defendant to commit a crime, the end result will be an acquittal for lack of proof and the defendant will walk out of the courtroom. Unlike the classic insanity plea, this latest “absence of intention” defense does not result in civil commitment to a mental health facility. Is this how we want our laws to deal with mental illness and crime? Probably not. Thus, this newest twist on criminal defenses may serve the limited purposes of individual defendants seeking to avoid liability but systemically, it is yet another important reminder of how we must come to terms with mental illness and crime and how we must strive to create a more lasting, satisfying resolution.