“Juries And Racial Bias”: The Supreme Court Cracks Down On Racist Prosecutors
The Supreme Court tends to expend more energy detangling questions of law than it does sorting through questions of fact. But on May 23rd, in a decision that could spare the life of a death-row inmate in Georgia, the justices took a microscope to the jury selection process in the trial of Timothy Tyrone Foster, a black man sentenced to die by an all-white jury in 1987 for murdering an elderly woman a year earlier. After examining evidence that emerged in 2006, the justices decided, by a 7-1 vote, that prosecutors were illicitly motivated by racial bias when they struck two blacks from Mr Foster’s jury pool. Justice Clarence Thomas, the lone dissenter, wrote that there were “credible” non-racist reasons for dismissing them from the list of potential jurors; his colleagues’ dive into a three-decade-old trial, Justice Thomas charged, was “flabbergasting”.
In his majority opinion in Foster v Chatman, Chief Justice John Roberts methodically marched through rather damning evidence that the men prosecuting Mr Foster were hell-bent on keeping black people off the jury. The prosecutors’ notes during voir dire (jury selection) showed certain names highlighted in green, a colour that, the legend helpfully explains, “represents blacks”. The prospective black jurors were labelled “B#1”, “B#2” and “B#3” with capital letter “N” (meaning “no”) written next to each. All of the prospective jurors were asked to fill out a questionnaire including a question about their race; on the black individuals’ answer sheets, prosecutors drew attention to their race by circling the answer. And one of the lawyers scribbled out this sentiment: “If it comes down to having to pick one of the black jurors, [this one] might be okay”.
All of this, Mr Foster’s lawyer said at the November oral argument, adds up to “an arsenal of smoking guns” that race was at the forefront of the prosecutors’ minds. Such bias, the Supreme Court decided in Batson v Kentucky, a ruling that came down a year before Mr Foster’s trial, is impermissible during jury selection. When eliminating potential jurors via peremptory challenges (as opposed to challenges “for cause”), lawyers can be called upon to present a race-neutral explanation for their strikes. Mr Roberts wrote that the Georgia Supreme Court had “clearly erred” when it determined that racial considerations played no part in the selection of the jury. The host of reasons cited for nixing the black jurors—too young to care about a 79-year-old victim, too (apparently) bored, too shifty-eyed, too biased by relatives who were social workers—were not persuasive, as they applied just as readily to several non-black prospective jurors who were not challenged. These justifications, the court held, were mere pretext. Add to this “the shifting explanations, the misrepresentations of the record and the persistent focus on race in the prosecution’s file” and the justices are “left with the firm conviction that the strikes…were motivated in substantial part by discriminatory intent”.
Very late in the game, and in the face of all those smoking guns, Georgia tried to defend the apparently racist strikes with a brazenly duplicitous mind-game defence. The prosecutors were keenly aware that they would be held to a higher standard since Batson had been decided just a year earlier. They called such flamboyant attention to the race of the prospective jurors only so they could keep track of the black jurors in the event they were called upon to supply a race-neutral reason for their dismissal. This argument, Mr Roberts wrote, “falls flat” and “reeks of afterthought”, since it had not been made “in the nearly 30-year history of this litigation: not in the trial court, not in the state habeas court, and not even in the state’s brief in opposition to Foster’s petition for certiorari”. All the lights and whistles flagging the individuals’ race, he wrote, “plainly demonstrates a concerted effort to keep black prospective jurors off the jury.”
That the sole African American member of the Supreme Court bench saw the case so differently is less surprising than it might seem. In recent rulings, Justice Thomas has found himself increasingly alienated from his seven colleagues. Three times in the past two weeks, he has cast a lonely dissenting vote from an otherwise unanimous decision. But the implications of his colleagues’ ruling in Foster v Chatman remain to be seen. Mr Foster can ask for a new sentencing trial, but he has no guarantee another jury will be more lenient. And it’s unclear how much of a constraint Foster will be moving forward. Prosecutors are on notice that incriminating notations during jury selection are a very bad idea. That may lead, on the margins, to less racial discrimination in the criminal justice system—but it will do little to curtail subtler methods of jury manipulation.
By: Steve Mazie, The Economist, May 23, 2016
“A Law Embedded Then Civil War-Era”: Restoring Voting Rights To Felons Is The Right Thing To Do
Of all the consequences of the nation’s decades-long infatuation with building more and more prisons and locking up more and more citizens, perhaps the most curious is this: More than 4 million Americans who have been released from prison have lost their right to vote, according to the non-profit Sentencing Project.
Even after men and women have served their time — after they have paid their debt to society, as the cliche goes — most states restrict their franchise. It’s an odd idea: Those men and women are harmless enough to release onto the streets, but they can’t be trusted to vote. They have finished serving their sentences, but they are barred from full citizenship.
A disproportionate number of those second-class citizens are black. Because black Americans, particularly men, are locked up at a higher rate than their white peers, this peculiar practice falls heavily on them. Nationwide, one in every 13 black adults cannot vote as the result of a felony conviction, as opposed to one in 56 non-black voters, according to the Sentencing Project, which advocates for alternatives to mass incarceration.
It’s undemocratic, it’s unfair and it’s un-American. While ancient Greek and Roman codes withdrew the franchise from those who had committed serious crimes, most Western countries now see those codes as outdated.
Recognizing that, Virginia Gov. Terry McAuliffe, a Democrat, used his executive power earlier this month to sweep away his state’s laws limiting the franchise for felons. With that action, about 200,000 convicted felons who have completed their prison time and finished parole or probation are now eligible to vote.
McAuliffe noted that Virginia’s law — one of the nation’s harshest and embedded in a Civil War-era state constitution — didn’t hobble the voting rights of black citizens through mere coincidence. That was its purpose. McAuliffe’s staff came across a 1906 report in which a then-state senator gloated about several voting restrictions, including a poll tax and literacy tests, that, he said, would “eliminate the darkey as a political factor in this state in less than five years,” according to The New York Times.
You’d think that McAuliffe’s fellow Virginia politicians, Republicans and Democrats alike, would celebrate his decision. Eliminating barriers to the franchise — especially those with obviously racist roots — can only polish the state’s image and strengthen the civic fabric.
But GOP leaders have objected, accusing McAuliffe of “political opportunism” and a “transparent effort to win votes.” Well, OK. Let’s stipulate that politicians are usually in the business of trying to win votes.
Having conceded that, though, isn’t restoring the voting rights of men and women who have served their time a good idea? If a crime renders a man beyond the boundaries of civilized society, he should be imprisoned for the rest of his life. Otherwise, his crime shouldn’t place him in an inferior caste, without the privileges of full citizenship.
Curiously, though, many conservatives seem to disagree. After Democrat Steve Beshear, then Kentucky’s governor, issued an executive order last year similar to McAuliffe’s, his Republican successor, Matt Bevin, overturned it. Bevin signed a law allowing felons to petition judges to vacate their convictions — a bureaucratic hurdle not easily overcome. Maryland’s GOP governor, Larry Hogan, vetoed a bill to restore voting rights to felons, but the Democratically controlled legislature overrode him.
Those Republican governors are simply following the party’s script, which has focused for the last several years on ways to block the ballot, starting with harsh voter ID laws. While advocates of such laws claim they are meant to protect against voting fraud, the sort of in-person fraud they would prevent hardly exists.
The real motivation for GOP lawmakers is to restrict the franchise from people unlikely to vote for them — especially people of color and millennials. Rather than campaign on a platform that attracts support, they rely on barriers to voting.
That’s wrong. The strength of American democracy depends on persuading more citizens that their votes count; carelessly — or intentionally — disenfranchising those with whom you disagree rends the civic fabric, distorts the political process and stokes the flames of discontent.
We surely don’t need more of that in this political season.
By: Cynthia Tucker Haynes, Pulitzer Prize Winner for Commentary in 2007; The National Memo, April 29, 2016
“A New American Ethos”: In America These Days, You Can Never Be Punished Enough
We will call her Jane Doe.
We really have no choice, given that that’s the only identification found in the court document. Jane is 57, a Jamaica-born permanent U.S. resident living in New York City. She is a licensed nurse and a mother. She is also a convicted felon.
In 2000, Jane, trying to raise two young daughters on $15,000 a year and an $80 weekly child-support check, was recruited by her then-boyfriend for an insurance scam. They staged a car accident and tried to collect on a claim.
It didn’t work. Jane was convicted on fraud charges and sentenced to 15 months in prison. She was released in 2004.
That’s when her ordeal began.
Her debt to society paid, Jane set out looking for work. She was rehired by a former employer and worked there two years. Then the state Office of Professional Discipline suspended her license for two years for professional misconduct — not because she had done anything wrong, but because of the old conviction.
In the years since, Jane has found barricades on every avenue of gainful employment. Job interviews and even job offers mysteriously evaporate when employers learn about her record. She tried to get a business license to start her own company, only to be rejected twice because of it.
Last year, Jane tried to have her record expunged. Judge John Gleeson denied the request a few days ago, explaining that Jane doesn’t meet the legal standard. But Gleeson — the same judge who sent her to prison — then did something extraordinary. He appended to his 32-page opinion a “federal certificate of rehabilitation.”
Understand: There is no such thing. The official-looking document carries no legal force. It’s just something Gleeson had made for Jane so she can show prospective employers that a federal judge considers her rehabilitated. He says a woman who was convicted once, a long time ago, of a nonviolent crime from which she saw no profit and for which she has served her time, ought not be punished for it the rest of her life.
“I had no intention,” wrote Gleeson, “to sentence her to the unending hardship she has endured in the job market.”
If you consider this a heartwarming story, you miss the point.
Yes, Gleeson did a good and generous thing. One hopes it has the desired effect. But it is unconscionable that Jane Doe’s situation ever reached this extreme.
The shift of American penal philosophy from rehabilitation to punishment has had many disastrous effects: prison overcrowding, mass disenfranchisement, fatherless homes. But the most self-defeating effect is embodied in denying ex-felons employment once they’ve served their time. If you deny them the ability to do lawful work, what obvious option is left?
Granted, there are sometimes good reasons to deny a given ex-felon a given job; no daycare should hire a newly released child molester, for example. But what Jane Doe is facing is rooted less in common sense caution than in a new American ethos where punishment never ends.
That should be anathema to a nation of second chances. Lawmakers must enact reforms that curb the power of employers to discriminate against former felons — or that incentivize their hiring. Questions about criminal records should not be allowed on job applications; a person should have the chance to make a good impression at the job interview without being automatically ruled out for doing some stupid thing a long time ago.
Jane Doe was lucky to have Gleeson on her side, but she shouldn’t have needed him. She did something stupid, yes, but she was duly punished for it.
Except that in America these days, you can never be punished enough.
By: Leonard Pitts, Jr., Columnist for The Miami Herald; The National Memo, March 21, 2016
“A Pledge He Can’t Keep”: Bernie’s Prison Promise Is Too Good To Be True
Democrats’ embarrassment of riches was on display last night in Milwaukee. Watching the two candidates, the choice between Hillary Clinton’s pragmatism and Bernie Sander’s idealism feels less like a primary battle and more like a glimpse of the internal dialogue swirling in the average progressive brain.
Practicality doesn’t always mean granting concessions, says Clinton, and big dreams don’t signal naivety, says Sanders. Their campaigns are running on flip-sides of the same coin: Elect me, and I’ll make progressive policies actually happen.
That undercurrent of possibility is why something seemed off to me about a promise Sanders made early in the debate. Talking about criminal justice reform, Sanders committed to a specific pledge: “Here’s my promise, at the end of my first term as president we will not have more people in jail than any other country.”
It sounds too good to be true, but that could just be cynicism talking. Sanders is certainly right that the U.S. imprisons more people than any other country on earth, a point both he and Clinton have made repeatedly during recent months.
The horrifying statistic shifts only slightly depending on how it’s calculated: In raw numbers, there are approximately 2.22 million people incarcerated in America, the most of any country on earth, according to the most recent World Prison Population List released by the International Center for Prison Studies. Coming in second place is China with 1.66 million people incarcerated. (It’s important to note, however, that this count only includes the prisoners that China officially recognizes.) Russia comes in a distant third with 640,000 people in prison.
If you adjust for population size, the U.S. has the second-highest incarceration rate in the world. We held the title for years until the island nation of Seychelles overtook us in 2015. Comparing the number of prisoners per 100,000 of the national population, Seychelles has a rate of 799. (And its entire population isn’t even 100,000.) The U.S. and its mammoth population of nearly 320 million has a rate of 698 per 100,000. To put this in perspective: The majority of nations worldwide have incarceration rates of less than 150.
While it’s not much of a consolation to be second rather than first in global incarceration rates, Sanders could theoretically make good on his pledge just by maintaining the status quo and pointing to incarceration rates by population at the end of his first term. Of course that would do nothing of actual value for criminal justice reform, a top priority of both Sanders and most Democrats.
Thus, Sanders must be promising to simply, and drastically, reduce the raw number of people incarcerated in America. So could he do that?
In a word: Nope.
It’s a hollow promise, impossible for Sanders to keep given the powers of the presidency.
Of all the people incarcerated in the U.S., only about 13 percent are in the federal system. And while the Constitution grants the president pardon authority for “offenses against the United States,” the president has no such authority over state prisoners. As the White House simply explained in response to a Change.org petition to pardon the two men featured in the Netflix documentary “Making a Murderer,” “the President cannot pardon a state criminal offense.” That power rests at the state level.
There are currently 210,567 people incarcerated in the federal system, according to the most recent Bureau of Justice Statistics report. Even if Sanders were to unlock every single federal prisoner and set them free, there would still be approximately 2 million people incarcerated – we’d still hold the global crown for most people incarcerated, because even with zero federal prisons we’d continue to lead China by about 400,000 prisoners. As NYU professor Mark Kleiman, who literally wrote the book on America’s incarceration problem, put it, “Sanders was very specifically making a promise he has no way of keeping. Either he knows that or he does not.”
I want very badly to believe a President Sanders could fulfill his promise and remove the disgraceful crown of mass incarceration from our collective heads, all in his first four years. But that’s just not the reality of how our system works.
Math hasn’t been kind to Sanders on a couple of his platforms thus far. And without the potential for real change, passion just amounts to noise. Sanders understands this – he has detailed, solid ideas on justice reform. Perhaps more critically, he has easy lines of attack against Hillary for her support of her husband and then-President Bill Clinton’s enactment of minimum sentencing guidelines and law enforcement measures that sent the prison population skyrocketing. So why is he undermining himself with fairy-tale promises?
By: Emily Arrowood, Assistant Editor for Opinion, U.S. News & World Report, February 12, 2016
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