“Why Racial Profiling Is Still An Issue”: The Issue Is Real And We Need To Pay Attention
Back in the early 1980’s, I remember having heard the term “racial profiling.” But it didn’t mean much to me because, given that I’m white, it never happened to me or anyone I knew. One of my good friends at the time happened to be Native Hawaiian (often mistaken for being Mexican) and started telling me stories about how he couldn’t walk across the courtyard at his apartment complex without being stopped by security and escorted to his door to verify that he actually lived there. That’s when I started paying attention to the issue.
I suspect that my experience is probably not that different from a lot of other white people in this country. It’s easy to dismiss the issues around racial profiling if it doesn’t happen to you or anyone else you know. And so, this week when President Obama hosted a panel discussion at the White House on criminal justice reform, he took a few extra minutes at the end to say that, when it comes to the Black Lives Matter Movement, the issue is real and we need to pay attention.
I thought of that ongoing need to convince white people that racial profiling is real when I saw that the New York Times published a front-page above-the-fold story by Sharon LaFraniere and Andrew Lehren on the reality of “driving while black.” To be honest, I had mixed feelings when I saw that. On the one hand, it is an excellent piece and I am thrilled to see such an important topic tackled in a way that puts it all front and center. But I also get discouraged. How long do people need to keep pointing this out before we finally get the message and do something about it? I can only imagine the reaction of African Americans who have lived with this issue for decades. This is not something that started in Ferguson. Eight months before the shooting of Michael Brown in August 2014, the Washington Monthly published an article that reached the very same conclusions we find in the NYT article today.
I don’t take a lot of pride in the fact that it took a friend of mine experiencing racial profiling for me to wake up to the fact that it is a real issue that we need to address. It reminds me of a column Leonard Pitts wrote years ago when Dick Cheney had a change of heart about marriage equality because his daughter is lesbian.
In such circumstances, injustice ceases to be an abstract concept faced by abstract people, but a real threat faced by someone who is known and loved. Makes all the difference in the world, I guess…
Unfortunately for Cheney, conservativism has no place for him on this issue. It does not strive to be thoughtful or even noticeably principled where gay rights are concerned.
To the contrary, being persuadable is seen as weakness and being persuaded proof of moral failure. In Cheney’s world, people do not seek to put themselves inside other lives or to see the world as it appears through other eyes. Particularly the lives and eyes of society’s others, those people who, because of some innate difference, have been marginalized and left out.
Then someone you love turns up gay, turns up among those others.
One imagines that it changes everything, forces a moment of truth that mere reasoning never could. And maybe you find yourself doing what Dick Cheney does, championing a cause people like you just don’t champion. Doing the right thing for imperfect reasons.
As Pitts goes on to say, getting to freedom is going to take a very long time if it requires every conservative home to have a lesbian daughter. And if every white person needs to have a best friend who experienced racial profiling in order for us to finally take the issue seriously, justice comes too slowly.
So in the end, I’ll celebrate that the NYT is highlighting this problem once again and that President Obama continues to tell us that the concerns of the Black Lives Matter Movement are real. I just hope that more of us are listening and perhaps even persuadable.
By: Nancy LeTourneau, Political Animal Blog, The Washington Monthly, October 25, 2015
“This Is What Erasure Looks Like”: We Are Witness To The Vandalism Of African-American Memory
“This,” says Roni Dean-Burren, “is what erasure looks like.”
She’s talking about something you might otherwise have thought innocuous: a page from World Geography, a high school textbook. A few days ago, you see, Dean-Burren, a former teacher and a doctoral candidate at the University of Houston, was texted a caption from that book by her son Coby, who is 15. It said that the Atlantic slave trade “brought millions of workers from Africa to the southern United States to work on agricultural plantations.” This was in a section called “Patterns of Immigration.”
She says the words jumped out at her. After all, a “worker,” is usually someone who gets paid to do a job. An immigrant is usually someone who chooses to come to a new country. Neither of which describes the millions of kidnapping victims who cleared America’s fields and endured its depravities in lives of unending bondage that afforded them no more rights under the law than a dog or a chair.
As the Trail of Tears was not a nature walk and the Normandy invasion not a day at the beach, black people were neither workers nor immigrants, but slaves. Dean-Burren, who is black, took to social media to explain that. You can guess what happened next. The story went viral, and the embarrassed publisher, McGraw-Hill Education, scrambled to apologize and fix the mess.
That’s all well and good. But let no one think this was incidental or accidental. No, there is purpose here. There is intent. In recent years, we’ve seen Arizona outlaw ethnic studies, Texas teach that slavery was a “side issue” to the Civil War, a Colorado school board require a “positive” spin on American history, and Glenn Beck claim the mantle of the Civil Rights Movement.
We are witness to the vandalism of African-American memory, to acts of radical revision and wholesale theft that strike at the core of black identity. Once your past is gone, who are you? What anchor holds you? So Dean-Burren’s word strikes a powerful chord: This is, indeed, erasure — like a blackboard wiped clean, all the inconvenient pain, sting and challenge of African-American history, gone.
It is, she says, “the saddest thought ever” that her grandchildren might not know Nat Turner’s rebellion or Frederick Douglass’ harsh condemnation of slavery. “The fact that they may not know what it was like for women to get the right to vote, the fact that they may not know that millions of Native Americans were slaughtered at the hands of ‘Pilgrims’ and explorers … I think it says a lot about our society.”
Nor is she persuaded by the argument that teaching the uglier aspects of American history would make students hate their country. She calls that “a crock of poo.” And it is. America’s ugliness defines its beauty as silence defines sound and sorrow defines joy.
“We tell our children that all the time: ‘The reason you’re standing here today … and you have what you have and you can go to the schools you want to go to, and you can say out loud, ‘I want to be an Alvin Ailey dancer …’ or ‘I want to go to Stanford,’ … is that you come from survivors. You come from people who said, ‘I’m going to stick it out. I’m going to make it. I’m going to keep pushing.’ If we don’t know the ugly, I don’t know how you can really love the pretty.”
To put it another way: Black History Matters. So let us be alarmed at attempts to rewrite that history for the moral convenience of others or to preserve what James Baldwin and Ta-Nehisi Coates have described as the fiction of white American “innocence” where crimes of race are concerned. They keep trying to make it less painful, says Dean-Burren, like putting a document through a Xerox machine and making it lighter, lighter and lighter still.
“And then, when you look up, there’s nothing on the page.”
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, October 12, 2015
“How Prosecutors Get Away With Cutting Black Jurors”: ‘Articulating Juror Negatives’, A Perpetuation Of Institutional Racism
A curious thing happened at the trial of Timothy Tyrone Foster, a young black man accused of killing an elderly white woman: Every black prospective juror was dismissed. Foster was convicted, and sentenced to death, by an all-white jury.
Even more curious: There were 42 prospective jurors that morning, five of whom were black. All dismissed, four of whom by “peremptory challenge,” in which the prosecutor strikes a juror at his or her discretion. In Georgia, where Foster’s trial took place, prosecutors have 10 such options.
Peremptory challenges were entirely unreviewable for most of American history. That was their function: In addition to dismissals with reasons, they were meant to give prosecutors and defense attorneys (in Georgia, defense attorneys get 20 such challenges) leeway to strike potentially problematic jurors without explanation.
That changed somewhat in 1986, when the Supreme Court decided Batson v. Kentucky. In Batson, the court held that using peremptory challenges to strike jurors on the basis of race was unconstitutional.
Foster’s trial, though, took place after Batson. How is that possible? Because Batson has proven to be almost worthless in practice. All a prosecutor must do is provide some race-neutral reason for striking jurors, and that is extremely easy to do. Maybe the juror didn’t make eye contact. Maybe she was female. Maybe he looked bored or inattentive—as most of us are at the end of hours of jury duty.
Any of these reasons will do, and so, in Foster’s case and countless others, winning a “Batson challenge” is basically impossible.
Except Foster’s case has turned out to be different. During the lengthy appeals process (nearly 30 years and counting), the prosecutor’s notes were made public. And they are laughable and tragic at the same time. Black prospective jurors are annotated as B#1, B#2, et cetera. Weighing the different options, the prosecutor noted that one has “the most potential to choose from out of the four remaining blacks.” And so on.
And then there were the absurd pretexts the prosecutor provided to satisfy Batson. First, he listed over 30 different reasons, basically throwing everything against the wall to see what would stick. He said three didn’t make enough eye contact. He said another was a social worker, which in fact she was not. He said one was close in age to the 18-year-old defendant; she was 34.
All this make it abundantly clear that race was the predominant factor in striking these jurors, notwithstanding the pretexts given for their dismissals.
And that’s why Foster’s case is now at the Supreme Court, which will have an opportunity to update Batson, and perhaps give it some teeth. The court will also, of course, determine the fate of Foster, who is developmentally disabled and who has now spent nearly 30 years on death row.
“Batson has failed miserably to prevent race discrimination,” says Stephen Bright, who is Foster’s lawyer, a professor at Yale Law School, president of the Southern Center for Human Rights, and one of the leading advocates for criminal justice reform, including abolition of the death penalty. Bright has been down this road before, having won two Supreme Court cases on race discrimination and jury selection. And he says that Foster’s case is not unusual in the least.
“What went on at trial was typical,” he told The Daily Beast. “What’s unusual is we know what’s in the prosecutor’s files. These notes that show not just a consciousness of race but an obsession with race.”
Batson has failed to prevent discrimination, says Bright, for at least three reasons.
First, “every prosecutor has a handy-dandy list of race-neutral reasons that they give. They even distribute reasons in advance. Some state training programs even distribute a list called ‘Articulating Juror Negatives.’”
That’s right, all prosecutors have to do is read from a prewritten list of reasons, and they’ll prevail. “They just say, ‘Take a lot of notes when you strike a black juror.’”
Second, Bright notes the awkward dynamic that Batson challenges present. “When you challenge a prosecutor’s strike, you’re saying the prosecutor intentionally discriminated on the basis of race and lied about it. The psychological dynamics between judge and prosecutor are such that it’ll be very hard for the judge to make either one of those findings. You deal with the prosecutor day in and day out—you’re gonna call the guy a liar and a racist?”
Third, and most damningly, “elected judges in the state courts are not known for recognizing constitutional violations, especially in cases of race. The local judge would’ve been voted out of office had he found a Batson violation. He and the district attorney work together all the time. There’s just no chance that’s going to happen.”
As a result, says Bright, “A lot of defense lawyers have quit making Batson objections because they just don’t think there’s any point.”
The result is a perpetuation of the institutional racism of the judicial system itself.
First, of course, individual cases are influenced. In the case of Foster, Bright says “this kid got sentenced to death because he was a black kid who committed a horrible crime against a white woman. If it had been a black woman, it wouldn’t have been a death penalty case.”
Amazingly, in front of his all-white jury, the prosecutor in Foster’s case told the jury in his closing argument to “give Foster the death penalty to deter people in the projects”—which Bright calculated to be 94 percent black at the time. “That’s a pretty racist appeal to say to an all-white jury.”
Second, the net effect of blocking black jurors from service, in addition to the discrimination they experience, is to diminish the integrity of the judicial system. Says Bright, “A person comes to a courtroom where you may have a 30-40% black population, and the average citizen sees all-white juries. Not only that: everybody’s white up there in the front: the prosecutor, the judge, the jury. The only person of color is the person on trial.” (As reported in an earlier installment of Out of Order, 95 percent of prosecutors are white.)
As a result, says Bright, “black people know they are not part of the criminal justice system. It’s an all-white system. And white people know it too.”
What happens now? In Bright’s opinion, the Foster case will likely be decided on its specific facts: with this evidence, the Supreme Court may well decide that there is a clear inference of racial discrimination.
But Foster may turn out to be too easy a case. Most prosecutors don’t leave smoking guns lying around—as Bright said to me, the mistake this one made was not shredding his notes afterwards. So what about the more numerous cases where racial discrimination takes place without smoking guns like this one?
One option would be to reduce the number of peremptory challenges available to prosecutors—but that is a matter of state law, with each state having different regimes in place. (Bright says there is no appetite for eliminating peremptory challenges altogether because prosecutors, needing unanimous verdicts, are “scared to death there’ll be that one eccentric person on the jury who’s going to hang the jury.”) At the very least, that would limit prosecutors’ capacity to use challenges to stack all-white juries.
Another could be to change the evidentiary standard for finding racial discrimination. The current standard requires that the prosecutor have a “mind to discriminate”—basically, that a prosecutor be found racist. But the court could set out a standard that looks more like disparate impact. Without making any inference as to what’s in a given prosecutor’s head, the bare statistical imbalance could enable a defendant’s challenge to prevail.
Disparate impact reasoning was recently (barely) upheld by the Supreme Court in the last term in the context of the Fair Housing Act. To be sure, it is imperfect and can lead to quotas, thus increasing, rather than decreasing, race-based decisionmaking. But it also eliminates Batson’s embrace of the ridiculous pretext, and the uncomfortable inference that a legal colleague is a liar and a racist.
It’s also possible that, amazingly, Foster could lose. If the court finds that the race discrimination at issue was a harmless error—in particular, if the new evidence of discrimination is not a “relevant circumstance” that the appeals court should have considered—Foster could still face execution. Given the current composition of the Supreme Court, this is a very real possibility.
But even if Foster gets a new trial, the phenomenon of the “all-white jury,” which Bob Dylan sang about in 1975, will remain as long as prosecutors can exercise challenges on a pretext, and bar people of color from sitting on a jury of one’s peers.
In Bright’s words, “When one part of the community is systematically kept off the juries undermines the respect that people pay to the courts’ decisions. Something needs to be done about it.”
By: Jay Michaelson, The Daily Beast, September 28, 2015
“A Real And Tangible Atrocity”: The Groveland Four, Justice Denied For 66 Years… And Counting
It was the road sign that made it real.
Josh Venkataraman was returning to the University of Florida, where he is a senior, from Orlando earlier this year when he saw it. “Groveland,” it said.
He had read what happened there in Gilbert King’s Pulitzer Prize-winning book, Devil in the Grove, for a class a few years before “and it touched me.” But seeing that sign did more; bringing home to him that Groveland was a real and tangible place where a real and tangible atrocity unfolded beginning in 1949. That, he says, was when he knew “I really wanted to get involved and change history, essentially.”
So Venkataraman, who, as a high-school student, won a Silver Knight, a service award given by The Miami Herald and El Nuevo Herald, sought out Carol Greenlee, a 65-year-old consultant in Nashville. Her father, Charles Greenlee, was the last of the so-called “Groveland Four.” He died in 2012.
She admits she was skeptical of this 21-year-old kid and questioned him closely. But when Venkataraman asked for her support in mounting a petition drive on behalf of her father and the other men, she gave it. “I’m in the mode of trying to get my father exonerated,” she explains, “and I need all the help I can get.”
The two of them want one thing from you: your name on their petition. It’s at www.change.org/p/richard-scott-exonerate-the-groveland-four. To reiterate: They’re not asking Florida Gov. Rick Scott for a pardon. They want exoneration — recognition that these men were not just innocent of the crime for which they were charged, but that the “crime” itself never happened.
King details in his book how a young white woman named Norma Lee Padgett concocted a tale of gang rape by four black men. A doctor’s exam turned up no evidence of sexual assault. Neighbors who saw Padgett right after the alleged attack said she was neither disheveled nor panicked. They scoffed at the idea she was raped, but refused to testify for the defense. “Wouldn’t do to be called n—-r lover,” one said.
In Klan-infested postwar Florida, Padgett’s flimsy claim was enough for police to essentially start rounding up black men en masse: Walter Irvin, Samuel Shepherd, Ernest Thomas, and Charles Greenlee. The men didn’t all know each other. No forensic evidence tied them to the “crime.” But again, this was Florida in 1949.
Before it was over, a white mob would rampage through an African-American community, one man would be killed trying to escape, three would be beaten and tortured, the sheriff would summarily execute one man, and the remaining two would be convicted.
Carol, born shortly after her father’s arrest, says she grew up feeling a “cloud” over the Greenlee name. When she was young, her mother used to take her to visit him weekly “until he couldn’t take it to see me anymore and he told my mother not to ever bring me back there again.” She didn’t see him again until he was paroled. She was 11 by then.
Here’s why this matters: Some people like to pretend the world sprang into existence yesterday. In an era of mass incarceration and epidemic police misbehavior, they earnestly wonder why African-Americans often don’t trust law enforcement. Here, then, is an instructive reminder, past tapping present on the shoulder — justice denied for 66 years and counting.
“You still have innocent people,” says Carol Greenlee, “innocent black men, every day being rejected, being dejected and being put in prison for things they have not done. So we’ve got to find a way to correct the injustice that a group of people have been experiencing for years. I’m 65 years old and I’m still looking for justice for my father, who was wrongfully imprisoned for something he didn’t do and really didn’t happen. Why don’t you correct that?”
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, September 28, 2015
“Free Stuff!”: Jeb’s Outreach To Black Voters; It Isn’t ‘We’ll Take Care Of You With Free Stuff’
Man, Republicans just can’t help themselves, can they? Here’s Jebbie in South Carolina talking about reaching out to African-American voters, per a report from WaPo’s Sean Sullivan:
“Look around this room,” a man told Bush, who spoke to a mostly white crowd. “How many black faces do you see? How are you going to include them and get them to vote for you?” asked the man, who was white.
Bush pointed to his record on school choice and said that if Republicans could double their share of the black vote, they would win the swing states of Ohio and Virginia.
And if they had some ham, they could make a ham sandwich, if they had some bread. But I digress.
“Our message is one of hope and aspiration,” he said at the East Cooper Republican Women’s Club annual Shrimp Dinner. “It isn’t one of division and get in line and we’ll take care of you with free stuff. Our message is one that is uplifting — that says you can achieve earned success.”
The “free stuff” reference sounds familiar, doesn’t it?
According to a pool report, [Mitt] Romney, who struggled badly with minority voters in the 2012 election, said during a Montana fundraiser that year: “I want people to know what I stand for and if I don’t stand for what they want, go vote for someone else, that’s just fine. But I hope people understand this, your friends who like Obamacare, you remind them of this, if they want more stuff from government tell them to go vote for the other guy — more free stuff.” Romney was explaining his remarks that day at the NAACP’s national convention, where he was booed.
Now in commenting on this latest Bush gaffe, the ever-fair Greg Sargent notes that Jeb’s not attacking po’ folks for taking “free stuff:”
Bush was not criticizing recipients of government help as self-designated victims. Rather, he was implicitly criticizing the Democratic vision of government, suggesting that Dems want to use government handouts (“free stuff”) to destructively trap people in dependency (“take care of you”) in order to capture and hold their votes.
As applied to African-Americans, this is the old “Plantation” meme, according to which Democrats have ensnared people by the diabolical means of helping them stay alive and make ends meet, as opposed to “empowering” them with benign neglect.
This sort of rap coming from the scion of a rich and powerful family might go over better if he were preceded by some commitments to letting African-Americans vote and abandoning mass incarceration as a social control mechanism and taking seriously complaints about police misconduct. As it is, it’s just free rhetoric.
By: Ed Kilgore, Contributing Writer, Political Animal Blog, The Washington Monthly, September 25, 2015
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