Racial Justice In North Carolina

Judge Finds Racial Bias In Death Penalty Sentencing

By Keith Kamisugi, cross-posted from Equal Justice Society

Just days before the 25th anniversary of McCleskey v. Kemp, a North Carolina judge today ruled that racial bias impacted the death penalty conviction of Marcus Robinson and re-sentenced him to to life imprisonment without possibility of parole.

This was the first case applying the historic and ground-breaking Racial Justice Act, enacted by the North Carolina General Assembly and Governor Bev Perdue to reject the influence of race discrimination in the administration of the death penalty. The RJA represents a landmark reform in North Carolina, a state which has long been a leader in forward-thinking criminal justice policies.

As reported by The New York Times, Judge Gregory A. Weeks of Cumberland County Superior Court said that “race was a materially, practically and statistically significant factor in the decision to exercise peremptory challenges during jury selection by prosecutors” at the time of the trial of the inmate, Marcus Reymond Robinson. The disparity was strong enough, the judge said, “as to support an inference of intentional discrimination.”

Judge Weeks found that prosecutors deliberately excluded qualified black jurors from jury service in Robinson’s case, in Cumberland County, and throughout the state.

Rob Thompson, one of the prosecutors in Cumberland County, said in his closing arguments: “They do not have evidence of purposeful discrimination. They do not have some secret society of prosecutors maniacally plotting to remove people from juries. They do not have any of that because there is no such evidence. It doesn’t exist. They have numbers.”

This prosecutor’s argument demonstrates the importance of EJS’s goal to replace the intent standard of the Fourteenth Amendment with a disparate impact standard. Instead of having to prove intent, criminal defendants could use statistical evidence of racial bias – the “numbers” referred to by the Thompson.

From the ACLU Blog of Rights: “The Robinson decision is really the first significant win since the Supreme Court dealt a blow to fairness in the death penalty 25 years ago this Sunday, ruling in McCleskey v. Kemp that statistical evidence of systemic racial disparities could not be used to overturn death sentences because such disparities were ‘inevitable.’ Today’s decision, and the RJA itself, stand as a powerful rebuke to the Supreme Court’s defeatist view of discrimination.”

To observe this tragic anniversary of McCleskey on Sunday, April 22, the NAACP Legal Defense and Educational Fund, Inc. (LDF) and the Equal Justice Society (EJS) joined with organizations across the country – including the ACLU Capital Punishment Project, the Capital Litigation Communications Project, the Center for Death Penalty Litigation Inc., the Death Penalty Information Center, Equal Justice USA, the Innocence Project, the National Coalition to Abolish the Death Penalty and the Proteus Fund – to raise awareness of how this landmark decision fundamentally threatens equality and opportunity in this country.

Together, we launched mccleskeyvkemp.com, a website that provides information about the ongoing crisis of race in criminal justice and offers information about specific activities that individuals and organizations can take to repeal the death penalty and ameliorate the racial disparities in the criminal justice system.

The site includes publications and reports, media articles, links to take action, as well as information about the LDF/Columbia Law School Symposium, “Pursuing Racial Fairness in Criminal Justice: Twenty Years After McCleskey v. Kemp,” which was held in March of 2007 to mark the 20th anniversary of the McCleskey decision.

Join us in the effort to raise awareness of this landmark decision that every day threatens the ideals of equality and opportunity in this country. Visit mccleskeyvkemp.com to learn more.

Civil Rights Groups Urge The Sixth Circuit To Strike Down Michigan's Anti-Equality Law

 Equal Justice Society, headed by my dear friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.  Not surprisingly, they are at the forefront of a key battle in Michigan.  -- Lovechilde

By Keith Kamisugi, cross-posted from Equal Justice Society

The Equal Justice Society and more than a dozen other civil rights organizations this week filed an amicus brief (PDF) in the U.S. Court of Appeals for the Sixth Circuit, urging the court to strike down Michigan’s anti-equality Proposal 2 as unconstitutional.

In its brief, EJS argues that Proposal 2 violates the Equal Protection Clause of the 14th Amendment of the Constitution by creating procedural barriers for people of color.

“Since its founding, certain interests in America have tried to restrict access to the political process,” said Eva Paterson, President of the Equal Justice Society. “First only white male landowners could vote. The franchise was expanded after the Civil War but women could not participate. Now we see many states erecting barriers to voting that may appear harmless, but are designed to keep voters of color from helping shape their political destinies. The national civil rights community speaks in one strong voice in opposing these measures, including Michigan’s Proposal 2.”

Several organizations joined EJS in signing the brief: the California Voting Rights Institute, Public Advocates, LatinoJustice PRLDEF, the Asian American Legal Defense and Education Fund, the National Women’s Law Center, Chinese for Affirmative Action, Worksafe, South Asian Network, the Association of Asian American Attorney and CPA Firms, the Council of Asian American Business Associations, Equal Rights Advocates, and the Asian American Justice Center and the Asian Pacific American Legal Center, the latter two both members of the Asian American Center for Advancing Justice.

Michigan voters passed Proposal 2 in 2006, amending the state’s constitution to prevent the state government from advancing equal opportunity by considering race, sex, color, ethnicity, or national origin. In March 2008, a federal district court judge upheld the law, but the decision was reversed this July by an appeals court panel. The case is now under consideration by the full Sixth Circuit Court of Appeals.

“We stand with our civil rights allies in opposing Proposal 2 and other similar laws that exclude racial minorities and women from the political process,” said Allison Elgart, Supervising Attorney at the Equal Justice Society. “When people of color have to amend the state constitution just to have their interests represented, the law is not protecting their right to equal protection under the law, and the court should step in.”

“Proposal 2 is the most recent example of a voter initiative that restructures the political process in a non-neutral way and places special burdens on racial minorities who want to lobby for race-conscious admissions processes,” reads the brief. “Voting changes and requirements that disproportionately impact racial minorities and provide them less opportunity than others to participate in the political process and effectuate their choices are violations of the Equal Protection Clause.”

Halloween Weekend At Occupy Oakland

By Eva Paterson, cross-posted from Equal Justice Society

All is well here in Oakland after the police went wild. I went down to Occupy Oakland Friday night. There were hundreds of people there. The faint scent of marijuana was in one of the areas where a long line of people were assembled. I kept walking and saw a field of tents.

I then came to the plaza in front of Oakland City Hall. The last time I had been there was to hear Senator Obama in May of 2008 ask for our support for his candidacy. Last night, the plaza was filled with hundreds of people talking in small circles. I heard earnest conversations about how the Occupy Oakland folks were interacting with each other. As I continued walking around, I was struck by how serious these folks were.

Two young women then told those assembled that they had to wrap up their conversations. They asked one representative from each group to come up and talk about the topic they had all been given to discuss: “How is privilege a part of the Occupy Oakland movement?” Folks were instructed to line up behind a man named Sweet Potato. I loved that and wondered if he often said “Who yam I?”

The crowd was filled with young people, but the first speaker was a 70-year-old woman who did not start off talking about race or class. She said that she envied the energy and physical dexterity of the young. She also said that the activists should make sure that those with physical impairments or with hearing difficulties were treated with respect and had their needs taken into account during the occupation. I smiled.

I then left feeling conspicuous in a dress and stockings. I had started the evening at a wake for the daughter of a friend whose 22-year-old daughter had suffocated after having an epileptic seizure. It was a very sad, sad moment. All the parents had a common refrain. “This is a parent’s worst nightmare.”

We hugged each other and cried and let old grievances and hurts wash away with our tears. A colleague and a friend had a similar reaction to seeing young people look at one of their friends in a coffin. They both said that young people in Oakland frequently are in funeral homes and mortuaries viewing the bodies of fallen friends. That realization deepened our collective grief.

Yet later that evening at Occupy Oakland, I brushed by young Black men walking through the encampment. I thought that perhaps the Occupy Wall Street movement might provide a way out of the misery and despair that sometimes leads to violence. One can only hope.

Life is good and goes on in Oakland.

The Death Penalty And North Carolina's Racial Justice Act

By Abby Bar-Lev, cross-posted from Equal Justice Society

On August 11, 2009, North Carolina Governor Purdue took an affirmative step in providing racial justice advocates a tool to ferret out racial bias in the criminal justice by signing the North Carolina Racial Justice Act.

The Racial Justice Act, the product of a concerted effort by legislators and racial justice advocates, provides defendants in capital cases the opportunity to argue that their death sentence or charge was based on race in court.  In doing so, North Carolina confronts the real and deplorable fact of racial injustice in death penalty process. The RJA leads the way in rooting out race as a basis for the death penalty though it does not necessarily ensure racial justice.  Efforts and legislative actions such as these are deeply needed.

Study after study exposes that racial disparities remain rampant in capital cases, from jury selection through the sentencing phase.  Specifically in North Carolina, a report authored by faculty of the Michigan State University College of Law reveals that those charged with murdering white victims are 2.6% more likely to end up on death row than those charged with murdering a person of color.

North Carolina’s Racial Justice Act allows defendants to present statistical evidence to challenge the prosecutor’s decision to seek the death penalty or the actual capital punishment sentence.  If the state cannot specifically refute the evidence, the judge must order that the prosecutor not seek the death penalty, or, if the defendant has already been sentenced to death, that sentence must be substituted with life imprisonment without the possibility of parole.

Republicans in North Carolina have been calling for the RJA’s repeal and have challenged it in court. They claim the law is too vague to fit with the North Carolina Constitution, but the RJA survived its first court challenge when a judge rejected that argument.  Republicans have attempted to repeal the RJA in the legislature, but Democrats have managed to table that discussion until May of 2012.

Meanwhile, nearly all of North Carolina’s 158 death row convicts are challenging their death penalties through the RJA.

Building A Real Progressive Movement For Change

After a completely disheartening few weeks culminating in the complete and utter abdication of liberal principles by the President and the Democratic Party, leave it to my old friend and mentor Eva Paterson  (who is not old at all) to get us re-focused on what we need to do to fight back. 

By Eva Paterson, cross-posted from Huffington Post

Equal Justice Society

A progressive movement across this country is more aspiration than reality when its members work toward many of the same goals, but apart from one another. If we are not arm-in-arm while marching toward our dreams, we may be moving, but we are not a movement. We all suffer when we turn our backs and say, "That's not my issue."

Today, too many progressive groups still remain disconnected from one another. In my view, coalitions are not optional. They are essential. Without joining hands with each other, we cannot achieve ambitious goals such as reclaiming the full protections of the 14th Amendment against institutional discrimination. We cannot ensure that there will be more Black males in colleges than in prisons. We cannot give our LGBT brothers and sisters the same rights and freedoms to marry afforded to the rest of us. We cannot secure full civic and economic integration for immigrants.

At Equal Justice Society, the practice of coalition building was embedded into our organizational DNA from day one, and remains one of our core principles. We learned this crucial lesson from Dr. Martin Luther King, Jr., who, through the urgings of his aide, Bayard Rustin, sought to create the "Grand Coalition," an alliance of groups and individuals who hungered for justice and equality. This meant bringing together women, people of color, union members, peace activists, and environmentalists -- all those who saw the possibility of a better world with equal opportunity for all people. Here are five important lessons we have learned in our efforts to develop coalitions:

Connecting The Dots

The current Supreme Court, Andrew Cohen writes in the Atlantic, is "as conservative as it has been in three quarters of a century."  Indeed, I've previously cited empirical studies establishing the unprecedented nature of the Court's pro-business bias.   E.J. Dionne is therefore spot on when he says that "not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy." 

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  Below Keith Kamisugi explains how difficult this is when faced with a Supreme Court that refuses to mete out "Equal Justice Under The Law."

Connecting The Dots:  A Supreme Court Broken

by Keith Kamisugi , originally posted on Equal Justice Society's website, June 22, 2011.

The end of the Supreme Court’s 2010-2011 term was marked in part by a series of recent developments and revelations highlighting the dire state of the Supreme Court, an institution that should be a fair and impartial forum for justice.

The Court has instead become increasingly damaged, especially with landmark decisions such as in Dukes v. Wal-Mart, which told women that Wal-Mart is above the law. We only have to look back to Bush v. Gore, Citizens United, and numerous other cases to see that our highest court in the land does not mete out “Equal Justice Under Law.”

If the Equal Justice Society and its allies are to accomplish our mission of reclaiming the 14th Amendment and its protections against discrimination, we must be able to argue our cases before impartial justices who do not reflexively rule against the interests of average Americans.

Let’s connect the dots:

Lessons Learned From Brown v. Board of Education

The Equal Justice Society is fighting back against efforts to weaken the 14th Amendment as a tool to fight discrimination that have persisted since its enactment and continue today.  (See Don't Take The 14th Amendment For Granted.)  On the anniversary of the Supreme Court's landmark decision in Brown v. Board of Education, EJS explains how to do it.  (Originally posted at  Equal Justice Society.)



Three Lessons We've Learned From Brown v. Board of Education

At the Equal Justice Society, we are working to reclaim the full protections of the 14th Amendment and help those who experience discrimination get their day in court. We know we have a tough and long road ahead in tackling our biggest challenge, namely overturning the "intent doctrine" as established in Washington v. Davis.  

Yet,as we prepare for the next step in this critical work, we are glad to have the shining example that is Brown v. Board of Education - one of the most important decisions ever handed down by the United States Supreme Court - illuminating the way forward.

The Brown case, which ended the tyranny of "separate but equal" policies in America, was the result of a decades-long,multi-pronged, and disciplined strategy. Known as the "Houston Plan," the strategy first took shape at Howard University of Law School in the early 1930s, and combined impact litigation,innovative use of social science, and collaboration with civil rights organizations across the political spectrum. 

Charles Hamilton Houston, Thurgood Marshall, Robert Carter, Constance Baker Motley, Jack Greenberg, and others litigated all around the country in their efforts to take down Plessy v. Ferguson,the case that enshrined "separate but equal" in the law. These brilliant strategists wove social science into the law to illustrate the corrosive effect segregation had on the psyches of both African Americans and whites, showing how one group internalized a sense of inferiority while the other, a sense of superiority. Their efforts culminated in the landmark decision that overturned Plessy on May 17, 1954.

Today,as we mark the 57th anniversary of Brown v. Board of Education,we want to highlight three lessons we have learned from this monumental and hard-fought victory:

Federal Courts Can't Remedy Structural Racism

A series of United States Supreme Court decisions, beginning in the mid-1970s, placed a near-impossible burden on those seeking to remedy discriminatory practices by requiring not only proof of racial inequality but also a showing that such inequality was purposeful.  The application of this "intent doctrine" in the recent Ninth Circuit case of Darensburg v. Metropolitan Transit Commission, raises the critical question of whether victims of subtle, implicit and unintentional but, nevertheless, very real discrimination can find justice in our courts.  The following piece which addresses this question, was written by Eva Paterson and Reggie Shuford, president and director of law and policy, respectively, at the Equal Justice Society.  It was originally published on March 6, 2011 in New American Media.

Transit Case Raises Question:  Can the Poor Ever Find Justice?

by Eva Paterson and Reggie Shuford

A recent decision handed down by the U.S. Ninth Circuit Court of Appeals raises this important question: Can victims of contemporary forms of discrimination and disparity find justice in our courts?

The court ruling came in the case of Sylvia Darensburg, an African-American mother of three who lives in East Oakland. Every day, along with tens of thousands of low-income African-American, Asian and Latino bus riders in the Bay Area, Sylvia experiences the reality of transit inequality.

According to the case, Darensburg v. Metropolitan Transportation Commission, Sylvia relies on the AC Transit bus system as her primary means of transportation to her job during the day and to college classes at night. She endures long waits for the two buses she needs to take, with each trip taking an hour or more each way. On her way home at night, she has to walk 12 blocks from the nearest bus stop in her neighborhood.

Sylvia is not alone in making such an arduous journey—almost 80 percent of AC Transit riders are people of color, and over 70 percent have incomes below $30,000. Nearly 60 percent are entirely dependent on public transit.

In 2005, a group of law firms and nonprofit legal advocacy groups—claiming state and federal civil rights violations—filed suit in federal court in the hopes of getting Sylvia Darensburg and others like her equal access to quality transit services.

The suit charged that the Metropolitan Transit Commission’s (MTC) practice of persistently under-funding AC Transit, while investing in improving rail services, amounted to discrimination and had a disproportionate impact on low-income residents of color. Rail services are used primarily by individuals with incomes of more than $30,000 and who have other means of transportation. A greater percentage of white riders use rail services rather than bus services like AC Transit.

The suit asserted that MTC's decision not to allocate greater funding for bus expansion projects in its Regional Transit Expansion Plan causes, at least in part, the fare hikes, service shortages, and lack of improvement on AC Transit buses that Sylvia and others experience.

In late February, the Ninth Circuit derailed Bay Area low-income residents’ chances of getting improved public transportation services. The court ruled that Sylvia and other plaintiffs had failed to make a showing of discrimination because they failed to demonstrate how MTC’s funding decisions either intentionally discriminated against or had a disparate impact on them.

One of the judges went even further by decrying the fact that the lawsuit was brought in the first place.
Taking aim at what he described as “hopelessly outdated” racial categories, he concluded: “[I]n the Bay Area . . . social change has been fostered by liberal political attitudes, and a culture of tolerance. An individual bigot may be found, perhaps even a pocket of racists. The notion of a Bay Area board bent on racist goals is a specter that only desperate litigation could entertain.”

Both the court’s decision and that particular judge’s concurrence ignore or fail to take into account how discrimination actually takes place in our society today. While we may no longer have George Wallace or his ilk chanting “Segregation now, segregation tomorrow, segregation forever!” on the school house steps, we do have well-documented and persistent racial disparities in virtually every measure of societal well-being, from employment, health, and education to wealth, housing and encounters with the criminal justice system.

Research shows that, today, the majority of racial bias is structural or implicit. Structural or institutional racism refers to any system of inequality based on race. In America, it defines who has access to goods, services and opportunities—or, as in the Darensburg case, to quality transit services that can determine whether one can get to work or school.

By requiring that discrimination be intentional and explicit (an almost impossible high bar), courts no longer provide a meaningful remedy to victims of discrimination and bias. The end result is that countless valid claims are lost, dismissed or never even brought.

If we are to solve the persistent disparities that remain embedded in our society today, judges, lawyers and the public must be better educated about how discrimination plays out in modern society, and in the daily lives of people like Sylvia Darensburg. Only then will we stand a fighting chance of making America a place that can truly live up to its ideal of equal opportunity for everyone.

Reclaiming the 14th Amendment

Equal Justice Society, headed by an old friend and mentor, Eva Paterson, is a national strategy group heightening consciousness on race in the law and popular discourse.  EJS seeks to restore race equity issues to the national consciousness, build effective progressive alliances, and advance the discourse on the positive role of government.

Last week, Reggie Shuford, EJS's Director of Law and Public Policy, wrote an important and visionary op-ed entitled Reclaiming the 14th Amendment, which was published in the Daily Journal, California's largest legal newspaper.  Shuford persuasively argues that the 14th Amendment, which was intended to protect blacks from discrimination and violence after the Civil War, has "failed to keep pace" with the kinds of subtle, implicit, and unintentional racial bias of today.

Dilution of the 14th Amendment stems from a series of U.S. Supreme Court decisions, beginning in the mid-1970s, which established and solidified the "intent doctrine," a near-impossible standard which requires those suffering from the impact of discrimination to prove the racial inequality was intentional.  EJS plans to pursue a litigation and public policy strategy to dismantle or at least reformulate the intent doctrine in order to reclaim the 14th Amendment as "a tool for securing justice."  Below is Shuford's article which explains their ambitious and innovative ideas for doing so. 

Reclaiming the 14th Amendment

by Reggie Shuford

Daily Journal 

The 14th Amendment isn’t what it used to be.

Enacted in 1868, the 14th Amendment was intended to protect Blacks from the violence and inequality that arose after the Civil War. Just over a decade earlier, the U.S. Supreme Court had decided Dred Scott v. Sandford, ruling that all people of African ancestry - slaves and those who were free - could never become U.S. citizens and, therefore, could not sue in federal court. Confederate state laws during that period also barred Blacks from serving on juries, voting, leasing or owning land, or entering professions. In contrast, the 14th Amendment guaranteed African Americans the right to citizenship, and the privileges and immunities that attach to citizenship. The amendment’s Equal Protection Clause would later become the basis for the Supreme Court’s 1954 ruling in Brown v. Board of Education, which ended the doctrine of “separate but equal.” 

Today, in the age of Obama, racism is by and large not of the explicit variety. It is not the kind with water fountains that restrict access only to certain races, or the kind that explicitly withholds the right to vote from individuals based on the color of their skin. Today, discrimination or bias is far more subtle, even unconscious, and their effects sometimes unintentional. The problem, however, is that equal protection jurisprudence has failed to keep pace with the way discrimination is now practiced and experienced in contemporary American society. Click here to read the entire article.