Finding Justice for Greenwood

By Professor Eric Miller, Leo J. O'Brien Fellow

This week, Prof. Miller joined with other Justice for Greenwood advocates in discussing reparations for the Tulsa Race Massacre. Below is an excerpt of his remarks. View the press conference.

Overwhelmingly, white business and political leaders have sought to appropriate the history of the massacre for their own interests. They have done this since the days following the massacre itself. In the immediate aftermath of the Massacre, member of the State National Guard, the County Sheriff’s Department, and the City of Tulsa Police herded the survivors of the massacre into internment camps where they held for three days. In a scheme concocted by the Chamber of Commerce, the National Guard, and the City of Tulsa, white Tulsans could sponsor an internee, and farm them out under threat of violence and without pay in conditions that amounted to slave labor. Under this scheme, Black residents of Tulsa marked with a literal badge of inferiority, a green card that the survivors had to wear to avoid further reprisals.

The City and its white business class saw an opportunity to grab the land they had burned from the survivors of the Massacre. They ensured that the victims received no compensation from the City and enacted illegal fire regulations and zoning ordinances to prevent rebuilding. For the rest of the summer and through the winter, the Massacre victims lived as refugees on their own land in red cross tents. The City and County destroyed the leadership of the community, murdering local leaders, professionals, and business owners who contributed to the community's prosperity, including nationally renowned surgeon Dr. A.C. Jackson. The County empaneled a grand jury to indict Black community leaders, such as J.B. Stradford, a hotelier and businessman, and A.J. Smitherman, a local attorney. These leaders fled the state, never to return.

White Tulsans have sought to tell the history of the Massacre in ways that most benefit themselves. When word of the Massacre spread across the country, money started to flow in to help the survivors. The Defendants, including the Chamber of Commerce, decided that they would be the ones to tell the story of the Tulsa Massacre; and that they would determine what to do with the money.

Immediately following the murders, lootings, and burning, the City of Tulsa and Chamber of Commerce colluded to minimize the impact of the massacre in the local and national press. Initially, they appropriated for themselves money sent from around the country to help the homeless, destitute victims. To minimize the financial harm to white businesses, the white community, falsely labeled the Massacre a Riot and blamed the destruction on the Black residents of Greenwood. When that was not enough to rehabilitate the reputation of white business leaders, the City, the County, and the Chamber of Commerce denied the massacre had ever happened, and affirmatively rejected aid from around the country intended to assist the Massacre victims. For the next 75 years, white political and business leaders silenced Black Tulsans and the Greenwood diaspora from recounting their experiences of the massacre and demanding restitution. 

Selection Bias: The Character of Policing on the Street

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

Policing and Procedural Justice in an Unjust Society

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

There is a sense, at least among a chunk of people, that policing in this country is broken: that the police are an authoritarian group that too often ignore the rights of minorities, especially African Americans, but also Latinos and other minority groups. The police hold these groups in contempt, and engage in unwarranted violence against minorities without being held properly to account. The popular reform proposed for this kind of police violence is "procedural justice": training the police to allow the people they encounter to given their side of the story before engaging in further action, increasing the chances that the civilian will voluntarily comply. The upside for the public is that "procedural justice" lowers the likelihood of police violence. The downside is that it is touted as real reform. But "procedural justice" is an inherently conservative response to problems with policing, and ignores—and perhaps even obfuscates—the need for real change. Worse, it potentially places the police in harms way in a manner that has longlasting moral and political (and perhaps psychological) costs for the police and the public. Here's why.

One way of seeing the problem is to realize that "procedural justice" explains the psychological impact on civilians of procedural due process. If police officers adhere to a form of procedural due process on the streets, civilians are more likely to comply with their directives. From a justice-oriented perspective, however, introducing procedural due process as a standard operating procedure for the police seems like a mealy mouthed—and long overdue—reform.

A standard critique of procedural due process is that it is insensitive to background considerations of justice. Procedural due process simply ensures that the parties get a chance of a hearing before someone who does not have a clear interest in the outcome of some dispute. But if the background equities are stacked against one of the parties, then that party has a much harder chance of success, even though the procedure used is just (in the sense of ensuring the parties get the right amount of participation). Worse, having committed to the procedure, the parties are bound by the results. The loser is disempowered from protesting her loss (except by means provided by the procedure, such as an appeal to some other authority, if such a right exists). Systems of procedurally just systems are often substantively unjust because a fair procedure in a system that is otherwise unfair cannot ensure that the parties receive their distributive or corrective due. Such inequities are often a feature of majoritarian political systems which are stacked against minorities; some form of substantive due process is often introduced as a means of mitigating against this sort of majority advantage.

On Behalf of the Community

Professor Eric Miller recently presented at the Association of American Law Schools Annual Meeting panel “#BlackLivesMatter: Balancing Security with Dignity in American Policing" raised points that are particularly salient in light of the Chicago report. His talk, published below, which is the basis for his forthcoming law review article in the Fordham Urban Law Journal.

A new manifesto of sorts is emerging from certain quarters of the academy challenging us to rethink our parochial approach to criminal justice. The challenge is to detach the way we think about policing from the context of the Fourth and Fifth Amendments, and instead approach policing in the context of some more general questions about the justification of criminal law and criminal punishment. This manifesto of sorts is being worked out by a loose collection of Anglo-American scholars, who have revived the long-dormant political question of how to justify the police within the apparatus of state punishment. That question last made a major appearance in the American legal academy in the 1960s, when Herbert Packer raised it as part of his book on the Limits of the Criminal Law. But it was soon drowned out by doctrinal and sociological approaches to policing.

The Black Lives Matters movement has also raised a series of political questions that have lain dormant for about half-a-century: indeed, since the last major period of racial unrest in the 1960s. Some of those questions are: what are the police? What is their role? To whom are they accountable? Whom do they represent? In the late 1960s and early 1970s a variety of sociologists and administrative law theorists including Jerome Skolnick, James Q. Wilson, Egon Bittner, William Ker Muir and Kenneth Culp Davis provided what has seemed like a definitive answer: that the police are those people entrusted with the situational power to deploy force in the community. But the Black Lives Matter movement, along with the less organized but equally compelling smartphone scrutiny of police violence, has given use good reason to be unhappy with this answer. The situational power to deploy force does not appear to represent the rule of law and the rights of civilians on the street. So the sociologist’s answer, telling us what, descriptively, the police actually do, does not tell us whether, normatively, the police ought to be doing it, and, politically, on behalf of whom they do it.

The political and normative set of questions raised by the Black Lives Matters movement I am particularly interested in, are the questions of representation and agency: on whose behalf to the police act? Police legitimacy often depends upon the answers to these questions: they gain their authority to intervene, including to deploy force, because of their role as state or municipal agents. In acting as the police, they act in their role as public officials authorized by the laws of the relevant jurisdiction that confer the legal power to act as they do. As Michelle Dempsey makes clear, the point is a conceptual one: without a state or a municipality to represent as publicly authorized officials, they would not be police. When, for example, the Mafia takes over the role of ensuring public order in the communities they control, they do not become “the police,” because they represent the Mafia, rather than the state.

The Mafia, like the police, often claim to act on behalf of, not only the state or municipality, but also the community. Indeed, the whole community policing movement gains its resonance from that claim. But what does it mean to “act on behalf of” a community? Because it is possible for the state, and thus for state officials, to fail to serve the communities they are supposed to govern. Your country is founded on just such a claim. Are the police an institution that, by its very nature, represents the community in addition to the state?

In our current political climate, the question of whom the state represents is a live one: large chunks of people on the right of the political spectrum have claimed that President Obama does not represent them, and large chunks of people on the left of the political spectrum claim that President-Elect Trump does not represent them, either. These communities are making an important political point: to represent some group is to claim to be authorized by that group to speak and act on its behalf. The police have a pretty compelling claim to speak and act on behalf of the state: they are members of the executive branch of government, and the various constitutive rules of government identify them as state agents. But speaking on behalf of the community is a question of political rather than institutional legitimacy. And it is that question that is being pressed by the Black Lives Matter movement, and requires a political answer that goes beyond the constitutive rules of the state.

One political answer is that acting on behalf of a community—representing a community by speaking on its behalf and acting in its name—requires regarding oneself as answerable to the community. It requires regarding community members as having standing to call you to account, as a community representative, for what you are saying and what you are doing. And this idea of accountability has important consequences for the political standing of members of the public on the street, in their interactions with the police.

The police provide two answers to the question of how they are answerable to the community: the first is that they express the values and interests of a particular group, for example by soliciting public opinion and input as to how to deploy their resources. This is the answer promoted through the community policing movement: the police are not mere agents of the state, but responsive to the needs of the community. 

Black and Blue in Baltimore

By Professor Eric Miller
Originally appeared on Prawfsblawg

Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?

I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.

The Fatal Costs of Drug Interdiction

By Professor Eric Miller
Originally posted on Huffington Post

Philander Castile was pulled over for a broken tail-light and shot while he reached for his registration. While there has already been much discussion of the shooting, one point is missing from the story: the police stop was likely a pretext to engage in drug interdiction.

Now I am not suggesting that Castile was stopped because he was black. Nor am I suggesting the contrary—that he was *not* stopped because he was black. What I am suggesting is that the primary purpose of the stop was *not* to tell him about his busted tail-light—an admirable act of beneficence on the part of the police officer—but to search Castile’s car for drugs. And it is this aspect of the encounter—a police officer, looking for drugs, and finding an armed individual inside the car, that inevitably produced the deadly result.

The Elusive Search for Justice

By Dean Michael Waterstone

Recently, the state of Mississippi and federal government announced they were ending efforts to bring any further cases in the 1964 civil rights murders of Andrew Goodman, Michael Schwerner and James Chaney. This is unfortunate. Successfully bringing cold cases so many years later is incredibly difficult. Many of the culpable individuals have died and memories of witnesses have faded. But despite being understandable as a legal matter, this decision saddens me. There was only one prosecution by the state of Mississippi against any of the individuals involved in this atrocity, and the effort demonstrated how difficult justice can be to obtain but how crucial it is to pursue.

I know because I was there. In 2005, the state of Mississippi brought murder charges against Edgar Ray Killen, a self-avowed “preacher” who had coordinated the connection between the gang of Klansman and sheriff's office. At the time, I was a first-year law professor at the University of Mississippi, teaching civil rights law. I went down to Neshoba County for the murder trial, and brought one of my students from the area with me. It was a moving experience that I will never forget.

Remember, this had been a crime that had captivated the entire nation. The three civil rights workers were in Mississippi to register black voters during Freedom Summer. They were murdered by Klansmen working in direct connection with the sheriff's office. President Johnson sent the National Guard to find the bodies of the missing civil rights workers. But the state of Mississippi, the entity primarily responsible for seeking justice, did nothing. Forty years later, a community coalition of whites, blacks, and Native Americans issued a “call for justice,” urging officials to bring prosecutions against anyone who was still alive. This culminated in Killen’s trial.

Fisher v. UT: 'A significant departure from every racial affirmative action case Justice Kennedy has decided'

U.S. Supreme Court Associate Justice Anthony M. Kennedy cast the deciding vote and authored the opinion in the Fisher v. University of Texas at Austin case decided this morning.

“This is momentous. Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse,” said Professor Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School, Los Angeles who filed an amicus brief with the Supreme Court in the Fisher v. University of Texas case (often called Fisher II because it is the second time plaintiff Abigail Fisher’s case has gone to the Supreme Court).

“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date. Kennedy has not only sided with the University of Texas, he has said ‘considerable deference’ is owed to the state university. This is a major ruling for universities because this is the first time a Kennedy opinion has used language about ‘equal treatment and dignity’ in the context of race. In the era of Black Lives Matter, Justice Kennedy is showing a willingness to protect racial rights in a manner he has previously reserved for LGBT rights.”

More: Read the amicus brief Professor West-Faulcon filed in support of the University of Texas in November 2015.

Race and the Courts

By Professor Eric Miller 

 

Access to justice through our court system is skewed on the basis of race. In the criminal justice system, the decisions of of criminal justice officials to target, arrest, charge, prosecute, convict, and punish our citizens fall more harshly on minorities, and especially African Americans and Latinos. The effect is to channel Black and Brown people into the criminal justice system in greater numbers, and for longer, than similarly situated white individuals. 

The problems of race and the courts are local and structural. These problems are magnified in a criminal justice system that also responds to local and structural factors. Prosecutors, who make the decisions about whether to charge a defendant and the severity of the charge, are overwhelmingly white. They are incredibly powerful, and often have more impact on the sentence than the courts. Courts themselves are often overworked, and spend little time questioning the evidence in low-level criminal cases. At significant stages of the process—when sassing bail, or appointing counsel—the court may make decisions that undermine the rights of poor defendants. And those defendants are now often required to pay for the privilege of having a court release and monitor them on bail, probation, or parole.

Matters are even worse on the civil side, where minority plaintiffs lack the resources to hire attorneys, and minority defendants who are unable to pay fines often find civil penalties converted into criminal charges. Without adequate representation to argue for fine reductions on the basis of indigency, these litigants cannot turn to the court system for relief, but are instead re-victimized by an overworked system that sometimes cares more about processing cases than doing justice.

Why Abigail Fisher’s lawsuit is a modern day Trojan Horse

By: Professor Kimberly West-Faulcon
 Originally published on The Grio
 
Today, the Supreme Court will hear arguments in yet another racial affirmative action case involving college admissions. It seems perfectly reasonable for non-lawyers to wonder why these types of cases—cases filed by rejected white applicants alleging a college violated the Constitution by considering race—appear before the Supreme Court so regularly. If I did not teach and write about these cases, I would be left to think that racism against white college applicants is rampant. Why else would the U.S. Supreme Court, the highest court in the land, be hearing so many of these cases? Why else, in the case that will be argued today, would the Supreme Court hear the same case twice? Again, if I did not know all of the specific details of the lawsuit, I would presume that the plaintiff in the case, Abigail Fisher, must have been wronged in some way—why else would she find lawyers and subject herself to the national attention (and ridicule over her less-than-stellar grades and SAT score) that she has endured as people across the nation have debated whether she was indeed qualified to attend the University of Texas at Austin when she applied as a high school student for admission back in 2008.

Oppression vs. Discrimination: How the Law Failed Ellen Pao

By: Professor Sean M. Scott

This is an excerpt from a post by Dean Sean Scott on the Ms. Magazine blog.  

The issue in Pao’s case is not whether she was legally discriminated against, although cases such as this one highlight the inadequacy of the law in redressing the harm that goes unnamed but characterizes the experience of many women in the work force, particularly those in male-dominated fields. The law can do a better job of providing those who want to challenge their place in the social scheme with more effective tools to do so. Perhaps the question the law should be asking is not whether there was discrimination, but rather whether the actions undertaken, regardless of motive, result in the subordination of another based on her gender, race, ethnicity or some combination of all of these characteristics.

 The larger societal issue is how to begin to see the patterns of oppression that need no individual animus to replicate themselves. Until we can see, recognize and acknowledge that the harm suffered is oppression, not discrimination, the lives of women in the workplace will continue to be filled with Faustian choices.

Read the full post on the Ms. blog

Who Will Police the Police?

By Professor Priscilla Ocen

This op-ed originally appeared in the Los Angeles Daily Journal on Sept. 22.

In August, Ferguson, Mo. — a small, predominately black suburb of St. Louis — erupted in protest after the shooting death of Michael Brown, an unarmed black teenager, by a white police officer. Following the shooting, Brown’s body lay prone on the street for hours, visible to neighbors and passersby as a gruesome reminder of the violent end to his young life. Brown’s death at the hands of police, however, was only one of many this summer. In New York, Eric Garner, another unarmed black man, was killed after he was placed a chokehold by members of the New York Police Department. In Los Angeles, Ezell Ford, an unarmed, mentally disabled black man, was shot and killed by members of the Los Angeles Police Department.

The deaths of Brown, Garner and Ford are not isolated incidents. According to the FBI, police officers, on average, kill over 400 people per year in what were determined to be “justifiable homicides.” This figure, however, likely underrepresents the number of police killings as it only includes self reported data from less than 10 percent of police departments and only those killings that have been deemed justified. Nevertheless, it is clear that the burden of deaths in police custody has fallen disproportionately on African-Americans. Annually, nearly a quarter of the 400 killings involve African-Americans. This means that African-Americans are killed by police almost twice a week in the United States. Indeed, in a recent report by Mother Jones magazine, it was found that blacks are roughly four times as likely as whites to die during arrest or while in police custody.

While the killing of African-Americans by law enforcement officers is a tragically common event, criminal penalties for police officers accused of killing African-Americans are startlingly uncommon. In one study of 21 high-profile shootings of unarmed African-Americans, only three officers were successfully prosecuted. As both St. Louis County and federal officials investigate the shooting death of Michael Brown, what kind of outcome should we expect if a criminal case is ultimately filed?

Marissa Alexander and Overpolicing and Underprotection of Black Women

By Associate Professor Priscilla Ocen

This op-ed originally appeared on Ebony.com.

Marissa Alexander is a 33-year-old African-American woman who stands accused of three counts of aggravated assault with a firearm after firing a warning shot to ward off a violent husband whom she believed was attempting to kill her. The shooting occurred after her husband assaulted her multiple times---once landing her in the hospital with head injuries---and after he made credible threats to kill her. Nevertheless, a Florida state court rejected her self-defense argument, specifically the “Stand Your Ground” defense. Angela Corey, the same state prosecutor who unsuccessfully prosecuted the killers of Trayvon Martin and Jordan Davis for murder, is now seeking to imprison Alexander for up to 60 years, effectively placing a life sentence around a Black woman who—unlike George Zimmerman and Michael Dunn--had every reason to believe her life was in danger.

Read the complete op-ed.

Whose Version of 'Diversity' Did the Oscars Celebrate?

By Associate Professor Priscilla A. Ocen and Khaled A. Beydoun

This op-ed originally appeared on AlJazeera.com.

In many ways, Hollywood is a fenced-off community. It serves as the guardian of public accolades for excellence in film and representation. Yet, its gatekeepers are still overwhelmingly white, male and old, while the world it seeks to depict is the opposite. The Academy of Motion Picture Arts and Sciences is no different from broader trends in Hollywood itself. The voters who determined the winners of the 86th-annual Academy Awards on Sunday, March 2 are a testament to the white homogeneity and hegemony in Hollywood.

People of color have always been on the margins of Hollywood. Oscar nods to Hattie McDaniel, Sidney Poitier, Denzel Washington, Halle Berry and Jamie Foxx were generally lauded as moments of racial progress, allegedly highlighting an industry moving away from racial exclusion and toward diversity.

Unmasking the meaning and motivations behind Hollywood “diversity” reveals that gatekeeper politics – not racial progress – dictates which people of color are let inside, and the shape, complexion and color of the faces that remain fenced outsides Hollywood’s gates.

Inside the Gates: Oscar Voters are White and Male

One can drive from Hollywood’s Dolby Theatre, the site for the Oscars, and easily take a route through a tapestry of Asian, Black and Latino neighborhoods. Yet, the images that are often celebrated within spaces like the Dolby Theater obscure or outright misrepresent the lives of people who live in communities of color, often relying on tired and outdated stereotypes.

The Importance of Judicial Diversity

By Professor Laurie Levenson and Courtnee Draper '14

This op-ed originally appeared in the Friday, Feb. 15, 2013 edition of the Los Angeles and San Francisco Daily Journal.

As Thomas Jefferson proclaimed, "The most sacred of the duties of a government is to do equal and impartial justice to all its citizens." To accomplish this goal, it is imperative that we have a diversified bench. Recent national studies show that minority groups lag far behind in their confidence in our judicial system. While 62 percent of white voters view the courts as fair and impartial, only 55 percent of non-whites feel the same. In fact, 85 percent of some minority groups believe there are two systems of justice: one for the rich and powerful, and one for everyone else.

Overall, judges of color account for just 12 percent of all state court judges chosen since 2000. In California, we have a long way to go until our bench reflects the population that it serves. For example, Asians comprise 15 percent of the state's population; however, they represent only 5 percent of all judges. A more concerted effort has been made to appoint African-Americans to the California bench. African-Americans constitute 6 percent of the state population, and they too represent only 5 percent of the current judges.

The greatest focus has been on the appointment of Latino judges. Since January 2011, 15 new Latino judges have been appointed to the bench, increasing the representation of Latino judges to 8.2 percent. Yet in a state where 37.6 percent of the population is Latino, there is still a long way to go before the bench is diverse enough that Latinos are anything other than "token" appointees.
We also need to focus on other underrepresented groups in judicial appointments. For example, there is still a significant gender gap in our state's judicial appointments. Women comprise almost 40 percent of California's lawyers. However, they still represent only 33 percent of the judicial appointments. Of course, women of color face the double challenge of being both a woman and a minority when a seeking judicial appointment.

Nor do the challenges for minorities and women end once they are appointed to the bench. Sometimes, they are more vulnerable to challenge in retention elections, particularly if they have foreign-sounding names. While the public might like to think that in 2013 there is no longer racial or gender bias, the statistics suggest otherwise. It is still tougher for certain groups to attain leadership positions, including seats on the bench, because of factors completely unrelated to their qualifications to be a judge.

Prof. West-Faulcon filed amicus brief in Supreme Court case on race as factor in college admissions

Professor Kimberly West-Faulcon submitted an amicus curiae brief on behalf of the respondents in Fisher v. Univ. of TX at Austin.
In it, she wrote:
This brief explains how social science research undermines the common misconception that black applicants must be receiving "preferential" treatment and that the magnitude of the so-called "preference" is large on the basis of a casual numerical comparison of the average test scores of black admits as compared to white admits. It also explains that "the gap" in black-white group average scores on traditional mental tests, while still in existence, has been narrowing for several decades. The brief describes the relevance of contemporary research finding that theoretically-improved and updated versions of such tests have been shown to narrow the black-white average score gap presumably because they are based on more theoretically robust and more outcome predictive theories of intelligence. Such research calls into question petitioner's allegation that UT's minimal consideration of race as a factor in admissions violates her Fourteenth Amendment constitutional rights because she is Caucasian.
Read the complete brief.