The following are notes I took during a Racial Inequality in the Criminal Justice System panel discussion presented at the 2005 ACS national conference. The panelists were Allen Jenkins, Executive Director of the Opportunity Agenda; Kevin Johnson, Associate Dean for Academic Affairs and Professor of Law, University of California, Davis School of Law; Orin Kerr, Professor of Law, George Washington University Law School; Carol Steiker, Professor of Law, Harvard Law School; and William Taylor, Vice President of the Leadership Conference on Civil Rights. These notes are not necessarily verbatim or cohesive, and while I have tried to refrain from filling in blanks with my own words, mistakes in quoting are probably extensive and attributable to me alone. These notes are simply a rough record of some interesting points brought up by the panelists.
Greg Pokusa, Vice-President, U. of Richmond ACS
-Regarding one aspect of the criminal justice system with which the panelists were particularly concerned:
KJ: Racial profiling. Since 1975, Mexican appearance has been a legitimate factor in border immigration stops. Who looks Mexican, what does that entail? There are many different types of Mexican and appearances can vary dramatically. Yet this factor has been expanded to current use in both the War on Terror and the War on Drugs. The use of racial profiling in the War on Terror leads to further use of racial profiling by law enforcement. This usage cuts against the 4th and 14th Amendments and alienates communities that need the most help. There was the possibility of a political solution to this problem, and the country as a whole was moving toward abandonment of racial profiling, until 9/11 stopped that movement. A possibly remedy is the Equal Protection Clause, but in order to do so you would have to show a discriminatory intent, which is very hard to do.
OK: What to do next? > 40% of the 2 million people incarcerated in this country are African-American, how do you change such overwhelming figures? Don’t look to the courts, change politically through the press, writing letters, and changing the laws.
CS: Some things were worse in the past, but some things are worse now. No lynching anymore is a good thing; more people in jail as part of the war on drugs is bad.
-Regarding the role of the courts:
OK: Courts can solve things based on a remedy, so they are only really effective for an individual case. To really change things it must be broader, but it’s hard to deal with precedent, you can’t get it wrong.
CS: Does the punishment fit the offense? The Supreme Court (S.C.) has said that a proportionality rule existed, but so far to little effect.
WT: Evolving community standards argument in capital defense has been helped by recent S.C. decisions.
KJ: There is plenty that the S.C could do, but it's not likely. More likely to find relief in the various state court systems.
-In general, and in answering to specific questions:
CS: The death penalty is still rare compared to life sentences, so use energy where it is needed.
WT: There is a push at all levels to collect racial data.
KJ: A court settlement against the California Highway Patrol stated that they had to collect data. Political action is used to require data collection.
AJ: Drug use across races is roughly the same, although African-American men serve the most time (according to the Human Rights Watch). Illinois is bad, but what state is good?
CS: Nebraska has no minorities on Death Row, but how many minorities are there in Nebraska to begin with? Urban impoverished neighborhoods are particularly prone to racial discrimination because police forces can get more arrests and bang for their buck. There are differing approaches to this: New York City chose to punish every little offense that went against the books, and they ended up sending a lot of people to jail; Boston chose to work with black churches in communities and had different results.
OK: Adequate legal representation will always be a big issue, as it is hard for a politician to put support behind giving more money to “bad guys” for lawyers.
WT: Don’t forget about social services, they are almost as important as legal representation.
CS: It takes a crisis to change things, the Public Defenders almost have to go on strike before they can get a pay raise. If they do go on strike, or in the past when they have threatened to, judges either have to convict everyone, or not convict anyone because too many innocent people would end up going to jail for lack of representation.
KJ: Immigrants are far easier for the government to go after as they have fewer rights and the War on Terror is being fought against non-citizens. With so many deported, there is little political support to give them a chance for representation in this country if their few rights are in fact violated.
CS: Gender disparities exist along with racial disparities, but it is hard to argue for more jail time for women, although for instance cocaine use has been found to be equal among the genders.
OK: Where to go? A federal program for defense in state courts. Also, if laws work different than the way they were written, let it be known. Call the press, write your representatives.
KJ: Political action and a consciousness change is needed; multiracial coalitions may help.
