THE COLOR OF JUSTICE MICHELLE ALEXANDER CHAPTER 3

THE COLOR OF JUSTICE MICHELLE ALEXANDER: CHAPTER 3

HOW DOES A COLOR BLIND SYSTEM ACHIEVE SUCH AN ASTOUNDING LEVEL OF DISCRIMINATION? Two steps: 1. Grant law enforcement officials extraordinary discretion regarding who to stop, searh, arrest and charge for drug offenses. 2. Close the courthouse for any ability to challenge that the criminal justice systems operates in a racially discriminatory way.

DISCRETION • The unique nature of drug related crimes • No clear victim • Consensual • Popular • Media portrayed drug problem as a black problem – with arrival of crack cocaine • Crime and race became synonomous • Assisted by conscious and unconscious bias

CLOSING THE DOOR TO LEGAL CHALLENGES • Began with 4 th Amendment – Whren v US • Discussed in Chapter 2 on traffic stops • Supreme Court basically barred victims from being able to charge racial bias in the criminal justice system – can’t even claim racial bias. • Left the 14 th amendment open – equal treatment under the law • But would have to provide conscious discriminatory intent.

CLOSING THE DOOR TO LEGAL CHALLENGES • Mc. Cleskey v Kemp • The case that dealt with whether Georgia’s death penalty system violated the 8 th and 14 th amendment. • The court erected the standard that they had to prove unlawful discrimination – indications that the prosecutor or the jury had overtly expressed racially discriminatory standards for the decision. ` • Clary Case – challenged the discriminatory sentencing – the difference between crack and powder coacaine. – • Overturned on same basis as Mc. Cleskey/ Kemp

PROSECUTORIAL DISCRETION • No greater power in the criminal justice system than the prosecutor. • Federal versus state system – different penalties • Armstrong – tried to get data through discovery to show discrimination. Had to show discrimination to win right for discrimination. • Catch 22

PROSECUTORIAL DISCRETION “Immunizing prosecutors from claims of racial bias and failing to impose any meaningful check on the exercise of their discretion in charging, plea bargaining, transferring cases, and sentencing has created an environment in which conscious and unconsiouc baises are allowed to flourish. ” (p 117)

DEFENSE OF THE ALL WHITE JURY • Peremptory strikes • Relatively few minorities are included in the jury pool. 31 states don’t allow convicted felons to ever serve on a jury • Prosecutors can create acceptable race-neutral reasons for striking black jurors. • SCOTUS continues to uphold those decisions.

THE OCCUPATION • Racially biased policy discretion is key • Always present in urban, low income, black areas • Segregation has made the “round-up” easy. • Militarized nature of police enforcement. • Only so many resources – go where you can get the most folks convenience, similar to kissing frog argument of traffic stops.

UNCONVENTIONAL WISDOM – HOLLOW HOPE • Washington University study in Seattle WA – read pages 126 – 128. Really astonishing. • Lyons was injured by the choke hold. 16 people had been killed by the practice when SCOTUS heard case (12 black) • Court ruled that lyons did not have “standing” to seek an injuction agains this practice. He needed to show a likelihood that he would be choked again.

RACE AS A FACTOR • SCOTUS has granted the people the right or a license to discriminate • In policing race can be used as a factor. Brignoni-Ponce (p. 131) • The arguments in this area have been on display during the most recent episodes in Ferguson and Chicago. • While race is rarely the sole reason for a stop or search, it is frequently a determinative reason.

BEFORE WE LOSE HOPE • There has been much work done on criminal justice reform and there is fear that the Trump administration will move in the opposite direction. • Please read this NY Time article by James Foreman, Jr. It gives a path.