Criminal Injustice System

Incarcerated Women

Compared to the collective number of incarcerated people in the United States—nearly 2.3 million—a total of 222,455 might tempt some to brush off the incarceration of women in the United States as an insignificant issue. But this is exactly the mentality that allows issues specific to incarcerated women to go unnoticed and unaddressed.

The number of women incarcerated in the United States represents roughly a third of the world’s total incarcerated women and continues to grow at an alarming rate. Since 1980, that number has increased by over 700%. This stunning statistic progressed at twice the speed compared to the increase of incarcerated men. And though treatment of all incarcerated individuals is deplorable, incarcerated women face unique challenges in the prison industrial complex.

As with all oppressive aspects of the criminal justice system, the issue of excessive incarceration of women disparately impacts Black, Indigenous, and people of color (BIPOC) communities. Compared to white women, Black women are imprisoned at a rate of over 1.7, while Latinx women at a rate of 1.3. Considering overall rates of incarceration, Black women are twice as likely and Latinx women are 20% more likely to be incarcerated than white women. Native American women face the largest disparity, incarcerated at six times the rate of white women. The issue of mass incarceration specific to women is on prominent display here in Montana. The U.S. incarcerates women at an average of 133 for every 100,000 residents. Montana incarcerates at a rate of 203, well above this already too high average. Of this number, 34% are Indigenous, despite Indigenous people comprising only 6.7% of the total Montana population.

These numbers cannot be attributed to the uninformed excuse that BIPOC women “commit more” crimes. As suggested many times on this forum, these statistics result from racist policing, inadequate responses to mental illnesses, application of racially biased drug policies, and prosecutorial discretion, among other causes.

Once incarcerated, women face unique challenges compared to incarcerated men. For example, women in prisons are disciplined at much higher rates than men for “lower-level offenses,” such as “talking back” or “having an attitude.” Though these infractions are considered minor on their own, they have drastic cumulative consequences. Apart from punishment by solitary confinement—which has devastating impacts on mental health, especially for the higher percentage of incarcerated women than incarcerated men with a history of mental illness—women also suffer revocation of “good conduct credits” which affects the likelihood of early release. Additionally, discipline for these infractions might revoke their commissary privileges, preventing access to food and adequate menstrual products. Even without disciplinary action taken against them, women struggle to access the appropriate menstrual products they need while incarcerated. Despite some menstrual products being free in federal prisons, they are not free in all correctional facilities, and tampons are even more difficult to acquire than pads.

Furthemore, the educational programs offered in women’s prisons are severely gendered and even more lacking in availability than those offered in male correctional facilities. An individual who partakes in any sort of educational program offered in prison is 43% less likely to return after release.

Trigger Warning: sexual violence against women (specific to both cisgender and transgender women) in prisons

In addition to the above challenges, women face significant issues under cross-gender supervision. Over 70% of guards in federal women’s prisons are male. This amplifies the already massive power imbalance between guards and prisoners, especially for the many incarcerated women with a prior history of trauma before their sentences. Apart from this inappropriate power dynamic, many incarcerated women face sexual violence in prison at the hands of prison guards. Despite claims of “zero tolerance policies,” it is common for women not to report assault or misconduct for fear of retribution. Transgender women, who are often incarcerated in male prisons with indifference to their gender identities, are subjected to sexual assaults at much higher rates than cisgender women. Transgender people are ten times as likely to be sexually assaulted by fellow inmates, and five times as likely to be sexually assaulted by prison staff.

End Trigger Warning

While the above issues affect all incarcerated women, transgender women in particular face terrible treatment in the prison system. Transgender prisoners are often assigned to correctional facilities based on their sex assigned at birth and not their gender identity. Once in these facilities they are often denied the medical care they need. On top of the already traumatic experience of prison this exacerbates gender dysphoria, a cruel and unusual punishment.

Even after their sentences come to an end, women face additional challenges to reentry. Though many incarcerated women are held on drug charges, only 1 in 5 women with substance abuse history receives treatment in prison. Without receiving the medical help they need, many of these women find themselves reincarcerated. Many states ban individuals with felony drug convictions from receiving food stamps. This restriction disproportionately affects women, as they are convicted of drug related offenses at higher rates. This barrier to services, coupled with difficulties in obtaining stable housing and employment, results in many women finding themselves back in prison.

Though representing a much smaller portion of the overall number of incarcerated individuals than their male counterparts, women, especially BIPOC women, face additional hardships from pretrial to reentry. It is the responsibility of society to both acknowledge and address these hardships women face. Accordingly, Criminal Injustice Blog encourages you to engage with this difficult topic, not only during International Women’s History Month.

– L. Moose

Continued: Is Facial Recognition Software Racist?

Part Two

Last week’s post examined the development and use of facial recognition software (FRS) as a method of discriminately surveilling Black persons. The post explored the history of government surveillance and racist laws used to monitor BIPOC communities, the biases present in current FRS programs, and the implications of using FRS as a law enforcement tool. This week’s post considers the ways FRS is impacting current events, looking first at its use to monitor bar examinees and then to police surveillance of Black Lives Matter protesters.

Bar Exam Racial Bias

As many of Americans’ professional and educational life has gone virtual due to COVID-19, so too has the bar examination. In many states, the company ExamSoft has been the platform of choice for facilitating the remote bar exam. However, for students of color, FRS has caused many complications. The October bar shut many test takers out of the exam because the software did not recognize them.

Leading up to the February bar exam, many test takers had the same problems. During practice exams, a number of students received error messages stating “due to poor lighting” the software was unable to identify their faces. Students shared in interviews that even after switching rooms and trying different lighting they were unable to take the practice exams. One solution students use is to shine a light on their face during the exam. While this is one way to trick the facial recognition software into “seeing” them, the method presents its own challenges for test performance.

Kiana Caton, a Black student in California, shared her test taking method with VentureBeat.

Following challenges with the October bar, a number of civil rights groups including the Lawyers’ Committee for Civil Rights Under Law, the ACLU of California, and United for Diploma Privilege, threatened to sue the California State Bar if they did not discontinue the use of FRS in the administration of the online exams. In response, ExamSoft has doubled down on its claim that the program does not have issues with racial discrimination. ExamSoft’s CEO, in a letter to U.S. Senators who expressed their concerns, adamantly denied problems with its use of FRS and stated a human is always reviewing those users who are flagged, thus removing any bias.

Student Alivardi Khan tweets about their experience with ExamSoft.

Despite pleas from organizations interested in protecting the rights of disenfranchised groups, the California Bar proceeded with the remote administration utilizing FRS via ExamSoft for the February exam. A letter from the bar association alleges the claims by the civil rights groups “fail to make a case that the technology is discriminatory” and only discuss the technology generally. Pilar Escontrias, co-founder of United for Diploma Privilege, explains in an interview for Bloomberg Law, that the impacts of FRS use during the administration of the bar exam impacts thousands of students. The use of FRS not only impacts students of color, but also disproportionately disadvantages cisgender women, as well as transgender people. The use of facial recognition software continues to frustrate the many students preparing to take the bar exam. Areeb Khan, who sat for the New York bar exam just a few weeks ago, illustrated why the use of FRS as part of the bar exam is problematic, “There are so many systemic barriers preventing people like me from obtaining these degrees—and this is just another example of that.”

Bar associations and legal institutions around the country must remove the barriers applicants of color face, in order to create welcoming and inclusive environments, and develop opportunities for applicants to enter the legal field. For decades, the legal system, including law schools, has promoted a facade of care and concern for issues that disproportionately impact Americans outside the “norm.” Today, law students ask for more. It is no longer enough to be invited but to not feel welcome, to use acknowledgments as placeholders for tangible action, or to use controversial cases as a substitute for crucial conversation. Moving forward, bar associations and law schools have a duty to ensure the inclusion of BIPOC voices in the legal system.

Surveillance of Black Dissent

Another disturbing use of FRS is its deployment to surveil protestors peaceably demonstrating for more just policing. Across the nation, government agencies and local law enforcement have been monitoring the activities of thousands of protesters. Some jurisdictions began using FRS for surveillance following the death of Eric Garner in 2014, while others have continued the practice from decades prior when J. Edgar Hoover led the FBI and targeted surveillance efforts at Black intellectuals. The FBI even began identifying protesters as “Black Identity Extremists” as a way to rationalize their surveillance initiatives.

Illustration by Aïda Amer for Axios.

Some civil rights organizations are concerned not only are law enforcement agencies keeping tabs on protesters in real time, but they are using FRS to comb through social media postings to create databases as well. The fear is these postings could be weaponized by police against demonstrators in the future.

Increasingly people are discovering they have been watched by police. Just last week, the ACLU of Nebraska released the public records they had requested that demonstrate the Omaha Police Department was tracking Black community members simply based on their participation in peaceful protests. The emails released appear to show an intent to monitor protestors based on their beliefs about police reform and their presence at events rather than a genuine concern of safety or criminal conduct. As such, the concern for organizations who seek to protect the rights of protesters becomes the true purpose for this mass surveillance and the impacts it has on police reputation. The legal director for the Nebraska ACLU, Adam Sipple, states, “Unnecessary, biased surveillance damages public trust and our shared public safety goals—especially among communities that suffer the most from police misconduct and over-policing.” The city attorney and police department deny the allegations of improper surveillance.

While the details are still unfolding in Nebraska, in cities like Boston and Memphis, there exists a more established history of law enforcement spying via social media. Following the murder of Freddie Gray in Baltimore in 2015, police used FRS to compare images of protesters from police body camera footage to social media profiles. More recently, following the murder of George Floyd, which sparked national outrage and protests in a number of U.S. cities, there is evidence of police using drones to record footage sent in real-time to federal officers off-site. While some officials state this footage is not recorded at a distance close enough to be used for facial recognition, others contend there is still possibility of abuse. Much of the recorded footage was sent to a Department of Homeland Security network, called “Big Pipe,” which stores the data for at least five years and can be accessed by both federal and local law enforcement agencies.

Photo of murals painted in honor of James Scurlock in Omaha’s Old Market captured by Noise.

As the mass surveillance rages on, many activists are concerned with protecting their first amendment rights and are calling on tech companies to play their part in ending law enforcement’s use of FRS. Unfortunately, large tech companies have a long history of facilitating racism and discrimination around the globe. More importantly, many believe the response must be holistic and come not only from those providing the technology but those misusing it as well.

Let’s Talk Solutions!

To start, some good news. In 2019, a number of states, including California, New Hampshire, and Oregon, banned the use of FRS in police body cameras. In 2020, at least 19 states considered legislation to limit the use of biometric data by law enforcement. In June of last year, Amazon* announced a pause of its FRS used by police. The company stated they hoped this timeframe would give Congress the space to develop regulations called for by civil rights activists. This past December, the governor** of New York signed legislation pausing the use of FRS in the state until 2022. These bans are helpful in giving state actors the time necessary to develop an in-depth plan to move forward. Thankfully, Congress seems interested in establishing parameters for the use of FRS by law enforcement agencies. MIT researcher, Joy Buolamwini, testified about her work before the House of Representatives and was surprised to find members of the committee felt there was “support and agreement across both sides of the aisle” to create regulatory oversight of the technology. Could it be because Amazon’s FRS mismatched 28 members of Congress with mugshots from police databases?

The reality is this nation is unlikely to move away from using technology as a law enforcement tool, so how can FRS improve accuracy and eliminate its current bias? The first step is to build better data sets. The programs and algorithms can “train” on databases with more diverse images inclusive of all racial backgrounds. Second, developing racial literacy in tech companies is paramount to the acknowledgement of racial discrimianation and bias in the software itself. Previous arguments that “AI can’t be biased” no longer hold up. Lastly, don’t be like ExamSoft. It’s high time tech companies put people before profits and take accountability for their products. Pausing sales and the use of FRS is a start, but companies must partake in better, more long-term solutions.

The uncertainty of the future of FRS is one that should concern Americans. The unsettling truth is best summed up by Technology for Liberty Project’s Kate Crockford, “face surveillance is dangerous when it works and when it doesn’t.”

*By no means does one good deed absolve Amazon or Jeff Bezos of their myriad of sins.

**Likewise, the inclusion of New York in this article should not be overshadowed by Cuomo’s alleged wrongdoings.

Is Facial Recognition Software Racist?

Today’s post is part 1 of a 2 part series and is brought to us by Alex Janssen. Alex is a current 1L at University of Montana School of Law. She received her undergraduate from the University of Denver, and has served two years in the Peace Corps. She currently serves as the VP for MBLSA, 1L Rep for ACLU, and is a member of WLC and NLG respectively. She is also a naturalization interview mentor for Lutheran Family Services in Colorado and a high school mock Congress judge for the Nebraska circuit.

Spoiler alert: yes. Issues with facial recognition software (FRS) have been on development companies’ radars for years now. In 2018, Brian Brackeen, the CEO of an FRS developer, Kairos, wrote an article for Tech Crunch detailing the many flaws of the software available on the market. Brackeen suggested it was not ready for use by law enforcement. Prominent examples of FRS getting it wrong, such as Michelle Obama and Serena Williams being incorrectly classified as male, are featured in the documentary Coded Bias. The film serves as an exposé of the problems associated with FRS. A leading researcher on algorithmic bias, Joy Buolamwini, “discovered” the flaws in facial recognition software when she was working on a project at MIT and was unseen by the software until she put on a white mask (see photo). Fast forward to 2020, these same concerns are gaining traction with the general public in light of the Black Lives Matter movement, calls for police reform and abolition, and a global pandemic forcing much of day-to-day life online.

BUOLAMWINI MASK, Source: NPR

What Is Facial Recognition Software (FRS)?

Often thought of as harmless technology, facial recognition systems are used everyday all over the world. If you have a current smartphone, odds are you unlock it via biometrics, either by letting it recognize your face or using your fingerprint. Facebook and other social media platforms know which photos you are in. Many companies grant employees access to buildings via FRS. Facial recognition software has been lauded as artificial intelligence that enhances people’s lives, but when used in the criminal justice system this technology has a dark side.

FRS discriminates against Black, Indigenous, and people of color (BIPOC) communities. When used as a law enforcement tool these software applications perpetuate racism in current day policing. Additionally, one of the most pressing concerns with facial recognition software is its largely unregulated use in the United States. According to Kris Hammon, a computer science professor at Northwestern University, questions of legality regarding FRS should be at the forefront. Hammon asks, “Is the result of this technology admissible in court? Who’s going to answer that?” Without any oversight in the implementation of these systems police departments and government agencies can exert unprecedented supervision over people.

Historical Surveillance of Black Americans

Before exploring some of the challenges associated with individual uses of FRS, it is important to understand the historical context of the surveillance of Black and minority communities in the United States. Dating back to the 18^th century, “lantern laws” were widely used in New York to require enslaved people to carry candle lanterns with them after dark in order to be illuminated, to be watched. This kind of constant supervision has evolved over the years and seen many iterations. From Jim Crow laws that maintained supervision through segregation, to COINTELPRO monitoring Black activists such as MLK Jr., Malcolm X, and the Black Panther Party, to the creation of a secret intelligence program targeting “Black Identity Extremists.” The policing of Black bodies became even more prominent following the “broken windows” theory of crime and its subsequent implementation of surveillance measures in BIPOC neighborhoods. Still today, mass surveillance systems used by police are disproportionately installed in Black neighborhoods.

Racism in the Creation of AI Technologies

Another important piece of the FRS puzzle is understanding how these technologies are developed and how that interacts with their implementation by law enforcement and regulatory bodies. The bottom line is this technology itself is biased. Research shows FRS most often misidentifies Black women between 18 and 30 years old. Research done by Buolamwini in 2018 found that Black women were misclassified nearly 35% of the time. Meanwhile, these same algorithms consistently classified white men accurately. These software programs are developed by algorithms that “learn” how to identify a face based on millions of photos. A CBS News article explains the problem with this process lies with the photos chosen to “train” the algorithm. When developers use predominantly white and male photos, the software struggles to recognize people of color and women. The impacts of this racial bias are far reaching and the scope of the problem is staggering. According to an article written by a Harvard bioengineering student “it is estimated that almost half of American adults—over 117 million people, as of 2016—have photos within a facial recognition network used by law enforcement.” The author continues,“this participation occurs without consent, or even awareness, and is bolstered by a lack of legislative oversight.” These systems pose a unique danger to Black people and other communities of color historically impacted by racism and overtly racist surveillance measures.

FRS ACCURACY AUDIT, Source: Gender Shades Project

Racial Discrimination by Law Enforcement

Many social justice and civil rights organizers have feared for years law enforcement could abuse FRS as a tool used to target people of color. Law enforcement agencies use this technology in a variety of ways, from identifying suspects and making arrests, to cross examining mugshot databases. According to an ACLU article from 2019, the federal government released findings about its own facial recognition algorithms, concluding their systems disparately misidentify people of color, women, children, and elderly persons, and error rates are highest among Black women. It can be difficult to humanize data and comprehend the impacts of facial recognition software on BIPOC communities. In the context of law enforcement “one false match can lead to a wrongful arrest, a lengthy detention, and even deadly police violence.” These outcomes are simply unacceptable and perpetuate the long list of wrongs committed by police against people of color. These software developers and tech companies are therefore complicit in perpetuating systemic racism that exists in our criminal justice system.

According to a Harvard article by Alex Najibi, many localities in the U.S. use facial recognition programs to identify people within mugshot databases. A number of local jurisdictions also compile their own separate crime databases thereby increasing the number of citizens present in facial recognition systems. Due to racial profiling and other discrimination by law enforcement, such as incentivizations to falsify reports, Black people are overrepresented in these databases. The well documented racist roots of the war on drugs led to disparate arrests of Black people for cannabis use compared to white people, despite cannabis use rates being about the same. This leads to more Black people’s information being stored in these mugshot databases that are then combed by facial recognition software further entrenching this discriminatory cycle. The use of photography in the criminal legal system, primarily through mugshots, has a racist history that contributes to the problematic use of FRS as applied to these databases. A 2019 Commerce Department study identified facial recognition systems that wrongly classified two individuals as the same person and found that error rates within one U.S. mugshot database were highest for Native Americans, followed by Asians, and Black women. Research findings in this area of artificial intelligence continually show that, as usual, we are heavily relying on a practice that works for white men, and no one else, “to keep Americans safe.”

Another use of FRS that targets marginalized communities is its implementation by ICE and local police to identify undocumented immigrants and Muslim citizens. FRS plays a vital role in helping “fusion centers” to function in their alleged anti-terrorism efforts. Many Americans are actively fighting for the protection of privacy and the ban of facial surveillance by local police departments and federal law enforcement agencies via petition.

The criminal legal system is already designed to make Black people suffer. The disparate outcomes have been and will continue to be well documented. Black people overwhelmingly face racism and bias in every part of the process, from arrest to sentencing to incarceration. FRS is simply another means for the persecution of people of color.

Until Next Week…

In the words of Malkia Cyril, a Black Lives Matter activist and founder of the Center for Media Justice, “If my mother were alive, she would remind me that a government that has enslaved Africans and sold their children will just as quickly criminalize immigrant parents and hold their children hostage, and call Muslim, Arab, and South Asian children terrorists to bomb them out of being. She would remind me that undermining the civil and human rights of Black communities is history’s extreme arc, an arc that can still be bent in the direction of justice by the same bodies being monitored now. The only remedy is the new and growing movement that is us, and we demand not to be watched but to be seen.”

Further Learning:

AI, Ain’t I A Woman? by Joy Buolamwini

Accuracy of Facial Recognition Chart – The Gender Shades Project

Project Green Light Detroit Example

Black Perspectives in the Legal System

In the United States, law is historically one of the least diverse professions. Despite “The 2020 Diversity Scorecard” demonstrating some minimal progress in narrowing the equity gap, the legal community remains painfully segregated. In 2020, the American Bar Association (ABA) recorded over 1.3 million active attorneys practicing in the United States. Of those 1.3 million, the ABA reports 86% identify as non-Hispanic white (white). According to this same report, only 5% of practicing attorneys identify as Black. The Black community represents less than only 8% of law students.Comparing these statistics to the roughly 60% of the general U.S. population identifying as white and the approximately 13% of the general U.S. population identifying as Black demonstrates the legal community’s stark inequity in racial representation.

Compared to their white counterparts, Black, Indigenous, and people of color are disparately impacted by the criminal justice system, from pretrial to sentencing. People who identify as part of the Black community are alarmingly underrepresented within the legal community, yet they are grossly overrepresented as casualties of the criminal justice system. A major contributor to this disparity is the lack of diverse perspectives amongst the people who make the decisions to jail, prosecute, and sentence. This perpetuates the racial power imbalance on prominent display in our legal system.

Bruce Brown, former National Black Prosecutors Association president, offered a fix to the legal system’s inequities: erasing the vast gap between representation in the legal community. More Black people “in the room making decisions, challenging decisions” forces people who do not identify as Black to consider the motives behind the disparate results of the legal system. As Brown suggests, without first questioning these motives we cannot ensure our system is working “efficiently and fairly for everyone involved.”

Though we can and should readily admit the legal profession will benefit from increased Black representation, this is not a simple fix. Everything from the law school environment to the language and culture of the law intentionally excludes non white, non cisgender male perspectives. Dr. Tsedale M. Melaku, a sociologist and research fellow at CUNY, authored “You Don’t Look Like a Lawyer: Black Women and Systemic Gendered Racism” in response to the image most people have of a lawyer: white, male, able-bodied. This image, while reinforced by society’s inherent biases surrounding race and professionalism, is also based in the realities of the legal profession’s racial disparities. This gap in representation is the result of barriers that prevent diverse perspectives and voices from joining the legal profession. Law school application processes, experiences, and postgraduate licensing add additional barriers to the systemic burdens already imposed on the Black community.

The law school application process is not equitable. A major barrier for many Black students starting the process of applying to law schools is financial limitation. It costs the average student thousands of dollars to apply to law schools. For the median Black family that makes 61 cents compared to the median white family’s dollar, this cost is even more pronounced. Beyond costs, the qualifying standards of the legal community are historically shaped by white men of higher socioeconomic status and are thus meant to exclude those who do not share the same privilege. This is evident in the average results of the LSAT. The LSAT discriminates against Black test-takers and rewards the opportunities afforded to the majority of white people. Among other shortcomings, the test exaggerates prior educational disparities, discriminates against lower socioeconomic status, and asks biased questions. Nearly half of Black applicants are not accepted to any law school. This rate of rejection is higher than any other community.

These same problems with the application process extend into the law school experience. Due to disparities in socioeconomic status, Black law students are forced to take out more loans. On average, Black law graduates owe 97% more in loans than their white peers. Additionally, the substance of law school marginalizes students who do not share the narrow, privileged world-view of the white, male, property owners who shaped the history and doctrine of our legal system. This impact is intensified by the white overrepresentation and Black underrepresentation in law school—fewer Black voices means fewer perspectives challenging the status quo of our legal system and greater white indifference to the law’s undermining of diverse experiences.This feedback loop of white voices regurgitating white perspectives in the law can create an isolating environment for Black law students who are already, on average, at a socioeconomic disadvantage compared to their white colleagues.

Even after achieving a legal degree, there are still barriers in place before Black students become attorneys. Before even sitting for the bar exam, applicants must pass character and fitness standards. Part of this initial assessment is determining an applicant’s financial responsibility—this includes disclosing any defaulted debts. Some state bar exams require applicants to answer the specific status of their student loans. Even after a student is determined eligible to sit for the bar exam they face excessive expenses. Sitting for the bar punishes those without the socioeconomic security to take months off work to study or pay for additional preparatory classes.

The underlying causes of Black underrepresentation in the legal community, along with its potential remedies, is a topic too complex to fully cover in a Friday morning blog post. This post is a mere introduction meant to inspire and call upon future attorneys and legal scholars to engage with this issue. A greater amount of Black representation in the legal community will improve our system and decrease the significant disparities in application of criminal justice. More Black representation in the legal system, from start to finish, will help prevent discrimination, promote inclusiveness, and work to balance overwhelming white privilege. Before we can reap the benefits of equitable representation, we must begin the work of removing barriers implemented by a historically white system. Beyond affirmative action, which will alleviate the financial burdens forced on the Black community, we have to acknowledge that the legal education we are receiving was written by white people for white people. Once we have acknowledged this truth we can begin the process of reforming our system from the ground up as a system of equity and inclusivity.

– L. Moose

Additional Resources:

Diversity and Exclusion Within Legal Education

Law Schools’ Complicity on Racism Must be Challenged

Law Schools Vow to Address Structural Racism

Requiring a Bar Exam in 2020 Perpetuates Systemic Inequities in the Legal System

Black Excellence in Economics

This week’s post is brought to you by Alex Dreussi, a current 2L at University of Montana law school. Alex participates widely in school organizations and donates his time to many important causes. Some of his current roles include: Treasurer of NALSA, Sustainability Coordinator for SBA, 2L Rep for MBLSA, SALDF, and OUTlaws. He also serves on the ACLU of Montana Board of Directors as the Law School Representative. In addition, Alex is a current student of the Masters of Public Administration Program.

As with most professions, the field of economics has a problematically low rate of racial representation, specifically when it comes to Black economists. This is hardly considered a contentious claim—the American Economic Association (AEA) itself addressed the issue in a statement this past June. Introspection after the murder of George Floyd led the Association to announce, “We have learned that our professional climate is a hostile one for Black economists.” This is starkly illustrated in a 2019 AEA survey of practitioners in the field, with only 3% of responding economists self-identifying as Black. This is compared to 79% identifying as white. Contrast this with the 2019 U.S. Census Bureau data, which shows 13.4% of the population identifying as Black and 60.4% identifying as non-Hispanic white. This lack of representation manifests in areas such as hiring at the Federal Reserve Bank: the San Francisco branch of the Fed did not hire its first Black research assistant until 2018. In 2019, the Brookings Institute estimated 2% of full-time college and university economics faculty identify as Black—this statistic has remained unchanged for the past decade.The Brookings Institute estimated in 2019 that 2% of full-time college and university economics faculty identify as Black—which they note has remained unchanged for the past decade.

This racial disparity is a problem for reasons beyond basic representation in the field of economics. A March 2019 letter from AEA leadership explains further that “[e]xcluding or marginalizing people based on their gender, race, or other personal characteristics is not only deeply unfair to those who are excluded, it damages the field as a whole by limiting the diversity of perspectives and dissuading talented people from becoming economists.” This loss, while particularly disenfranchising to the voices suppressed by exclusion, affects our common base of knowledge—we all suffer the results of a limited perspective. What society misses out on when the narrative is white only is demonstrated through the work of Black economists.

As the first Black woman to graduate with a doctoral degree in economics, Sadie Tanner Mossell Alexander exemplifies Black excellence in economics. Dr. Alexander is a pioneer in the field as only the second Black woman to graduate with a Ph.D in the United States. She went on to study law, becoming the first Black woman to graduate from the University of Pennsylvania Law School, as well as the first to be admitted to the Pennsylvania Bar. She attributed her success to her determination, commonly quoted as saying, “I knew well that the only way I could get that door open was to knock it down; because I knocked all of them down.” But what might the world look like were we not to require such Herculean efforts?

More recently, a powerful and innovative voice in the field of economics is Dr. Nina Banks, an associate professor of economics at Bucknell University. Her recent article tracing the economic value of community organizing led by Black and brown women argues their work is undervalued and not counted as part of the economy. As the New York Times notes in its story on Dr. Banks’s most recent work, “Her goal is to develop a theory ‘to elevate the community’ as a site of production that deserves as much scrutiny as other work.” Diversifying the field of economics would allow for similar groundbreaking and thoughtful work to be done. Dr. Banks explains that much of the community organization is in response to a lack of both public and private sector resources, necessitating unpaid labor from Black women and other women of color.

Dr. Lisa Cook, a Black economist and Professor of Economics and International Relations at Michigan State University, researches the effect of white supremacy on Black inventors. As she explains to NPR in her Planet Money podcast, after the Emancipation Proclamation was issued in 1863, freed slaves were able to start patenting their inventions. Dr. Cook notes the rise in racial violence in 1870 began to affect this economic activity, leading to less patents issued to Black inventors—a nearly 15% decrease between 1882 and 1940. Dr. Cook’s 2014 journal article entitled “Violence and Economic Activity: Evidence from African American Patents, 1870-1940” finds that this led to 1,000 “missing” patents from Black inventors, compared to the 726 actually obtained. Jim Crow laws legitimated segregation, stifling social networks for inventors and decreasing institutional access. Plessy v. Ferguson and the resulting white-only areas prevented Black inventors from meeting with white patent lawyers. Dr. Cook hypothesizes that racialized violence suppressed Black patent activity. The economic effect, as she notes in her Planet Money interview, is equivalent to the GDP of a mid-sized European country at the time.

The few Black voices present in economics speak to the devastating effects of a society rife with inherent racism and the effects of segregation. The reduced value in Black owned intellectual, as well as real, property that Dr. Cook speaks to lingers to this day. Dr. Banks attributes the need for unpaid community organizing as rising directly from a lack of investment in communities from the public and private sector. With lack of financial investment comes a resulting lack in property value and job opportunities. Economic output suffers when such white supremacist forces are targeted at a community.

By failing to fund these organizers and provide necessary resources, society continues to impoverish and oppress these communities. This lack of investment and resulting lowered economic output lead to devastating realities, such as food deserts, inadequate housing, lack of healthcare, and fewer employment and education opportunities. The American police system is not equipped to deal with these situations. People in these neglected communities are met with racial profiling and excessive, ill-equipped police force. This fundamental misunderstanding contributes to the overrepresentation of Black people in the criminal system. A direct juxtaposition to their underrepresentation in the field of economics. A lack of diversity of voices supporting the story of representation in economic theories contributes to BIPOC populations bearing the brunt of these failures of majority-white institutions.

The field of economics is not alone in suffering from a lack of Black representation, but it is one of the more pronounced. When this issue was raised in Congress, then Fed chair Alan Greenspan assured lawmakers the Fed was working to further diversity—in 1993. And lest we smirk too much at the lack of Black representation in economics, we can look to statistics in the field of law. The 2020 ABA Profile of the Legal Profession Report states only 5% of lawyers identify as Black, with 77% of the profession identifying as white.

Diversifying every field betters society. More representation improves the discourse. We’ve got some work to do.

– A. Dreussi

Black History Month

The start of February marks the beginning of Black History Month. In February of 1926, the “Father of Black History,” Carter G. Woodson, instituted the inaugural “Negro History Week” in the interest of promoting the recognition of positive African American contributions to this nation’s history. Woodson and the Association for the Study of African American Life and Culture (ASALH) shared a desire to celebrate the success of Black people and publicize their powerful impact on the structural development—political, economic, and social—of this nation and the world as a whole. Since 1976, the United States has expanded the original week to the entirety of February to, in the words of President Gerald Ford, further convey its “message of courage and perseverance.” Since President Ford has since passed, no one can ask him if he truly meant those words as an appropriate acknowledgement or simply a politically calculated move. Either way, in the year 2021 it doesn’t really matter what President Ford meant. What matters is that almost half a century later this country still keeps the recognition of positive Black history siloed to one month out of the year. Black History Month should serve as a reinforcement of Black achievement. Instead, it often stands as the only time many Americans consider Black history outside of the context of the American Civil War and the Civil Rights Movement—a movement that is not over, but continues to struggle for equality in this country today. Black History Month offers an opportunity to celebrate the central role of the Black community in this nation’s progress; instead, too often it is regarded as a chance to educate only on the history of violence and abuse against the Black community. It is important to recognize the horrific treatment this country has demonstrated towards the Black community. It is equally important to acknowledge, celebrate, and promote the positive contributions the Black community has offered to an ostensibly ungrateful nation.

This country has a nasty habit of painting over its diverse history in a thick layer of white, especially when considering educational curriculum requirements. Ideally, one day, the public school system will actively teach us all the positive contributions of diverse communities, instead of the abridged white-centric version of history that permeates every level of education in this country. In the meantime, it is the responsibility of non-Black people to do the work of educating themselves on the positive contributions of the Black community to this country’s history. In the spirit of that mentality, this week, rather than focusing on the legal system’s mistreatment of Black people, Criminal Injustice System will focus on some key trailblazers and contributions from the Black community to our legal history. This is only a starting point meant to encourage readers to learn about the triumphs of Black people in the judicial sector of the legal system.

On July 3, 1844, after passing the Maine bar exam, Macon B. Allen became the first recorded Black person to be granted a license to practice law in the United States. In 1845, Allen moved to Boston, Massachusetts, and with Robert Morris, also a Black lawyer, opened the first Black law office in the United States. Allen later went on to become a judge, and he practiced law until he died at the age of 78. Morris was the first Black lawyer to file a lawsuit on behalf of a client in the history of this nation—the jury found in favor of Morris’s client.

Justice Thurgood Marshall became the first Black justice on the United States Supreme Court in 1967. Before he was nominated to the Supreme Court, where he served a 24 year term, he was appointed to the United States Court of Appeals for the Second Circuit. Before entering the judiciary, Marshall served as a remarkable civil rights attorney, having won 29 of the 32 cases he argued before the Supreme Court. One such win was the landmark Brown v. Board of Education case, the decision that found “separate but equal” to be unconstitutional.

In addition to becoming the first Black woman to hold a position on the federal judiciary when she was appointed to the United States District Court Southern District of New York, Constance Baker Motley was also the first Black woman to argue before the Supreme Court. Between 1961–1964 she won 9 of the 10 Supreme Court civil rights arguments she presented. Justice Motley was a key figure in the struggle for civil rights in the 1950s and 60s. She helped implement the Brown v. Board of Education decision, for which she wrote the original complaint; her efforts helped end legally-condoned segregation.

The Black community’s contributions to our legal system are not relegated solely to decades past. In more recent years, Kylar Broadus, a Black trans man, became the first transgender person to testify before the U.S. Senate when he advocated for the Employment Nondiscrimination Act. He is now a world-renowned advocate for LGBTQ+ civil rights. Claudia L. Gordon was the first Black woman who is deaf to graduate law school. She advised President Barack Obama on disability issues, and she continues to be a powerful advocate for people with different abilities. Reginald M. Turner, Jr., a Black man, is the president-elect of the American Bar Association. He is expected to take office in August 2021.

Those discussed above are not intended to demonstrate the full extent of the Black community’s powerful impact on this country’s legal history. It is important to note that this is merely a short list of firsts highlighting Black pioneers in a field built on inherent racism and dominated by white supremacy. While the bravery of these Black advocates deserves our acknowledgement, we must also recognize this post is only a peek at what the Black community has contributed to our legal history. To narrate an in-depth examination of all the Black community has offered to further our legal community would take more than the month of February to both write and then read. From winning landmark civil rights cases of old to standing at the forefront of advocacy for an equitable society today—the Black community has always been present in shaping this nation’s history and contributing to the structure of our society. It is important that we recognize these contributions, not only in the month of February, but year round.

– L. Moose

Additional Sources

Black History is a verb—Joshua Nkhata’s personal experience with “Black History”

Boston Public Library Annual Black History Month Booklist

The Whitehouse Proclamation on Black History Month, 2021

14 Groundbreaking Black Lawyers—ABA Journal celebrating Black History Month

Two Americas—But Only One First Amendment

Racial injustice has historically plagued the United States. Over the past year society has engaged in a new level of awareness about these issues. This awareness has motivated the modern struggle for civil rights in the United States. At the forefront of the fight for a truly equal country are those who actively promote the Black Lives Matter movement.

The Black Lives Matter (BLM) movement first organized in 2013 as a demand for justice when Trayvon Martin’s killer was aquitted of murder. Martin, a Black teenager, was returning from a convenience store when George Zimmerman, a neighborhood watch volunteer, shot and killed him. The BLM founders, Patrisse Cullors, Alicia Garza, and Opal Tometi, recognized that Martin’s tragedy was not unique, nor was the legal system’s response to his death. The history of the United States is shaped by the continued, violent oppression of Black communities. Martin’s murder and the acquittal of the man responsible for his death exemplified the glaring inequities of this country—inequities that clearly follow a racial divide. These three women sought to generate a movement that celebrates Black existence and eradicates white supremacy—an undeniably worthy mission. This movement grew into a global organization that today continues the fight for racial justice. Over the past year the movement has been firmly at the forefront of this nation’s overdue reckoning with racial inequality.

An examination of almost 250 years of history reveals that the legal system in the United States has demonstrated a repeated and egregious disregard for Black lives. In his speech, The Other America, Dr. Martin Luther King, Jr. described this country as not one unified nation, but instead “two Americas,” each starkly different on either side of a deep racial divide. Over fifty years later, that idea still applies in full to this nation. Last year, this country’s abuse of Black communities reached a boiling point met with widespread public protest. The loudest cries were in response to the disparate impacts of police brutality against Black, Indigenous, and people of color (BIPOC) communities.

The United States has a dark origin story when it comes to law enforcement and police brutality. Systemic racism, which is in part perpetuated by law enforcement, both past and present, results in extreme racial disparities in instances of police brutality. Despite only forming 13% of the population in the United States, Black people made up 28% of the 1,127 total people killed by police in 2020. Rightfully, these statistics prompted people to take to the streets en masse to voice their outrage and demand justice. These peaceful demonstrators were met by law enforcement with the very problems of police brutality they were protesting. This reaction further proved the obvious need for reform in the application of law and the recognition of rights in different communities.

Most protests and demonstrations are protected under the rights of the U.S. Constitution’s First Amendment. Specific to an examination of law enforcement’s reaction to BLM protests are the protections of assembly and speech. Though the five rights of the First Amendment (religious expression, speech, press, assembly, and petition to the government) are fundamental, they are not without limitation. The disparate application of these limitations is obvious when comparing the difference in law enforcement’s reaction to BLM peaceful protestors with that of law enforcement’s reaction, or lack-thereof, to actual acts of domestic terrorism performed by white insurrectionists. Indeed, in the aftermath of the attack on the U.S. Capitol, it is readily apparent that there is no legitimate justification for this disparate policing, except, as senior staff attorney for the ACLU Carl Takei notes, “white supremacy.” Sameer Rao, After Riot, Legal Reasons for Disparate Policing Prove Elusive, Law 360 (Jan. 24, 2021).

This disparity can be understood as what Professor Jennifer Kinsley coins “an innate tension” between the First Amendment’s free speech clause and the Fourteenth Amendment’s equal protection clause. Jennifer M. Kinsley, Black Speech Matters, 59 U. Louisville L. Rev. 1, 5–6 (2020). Because of this tension, Kinsley observes, “[t]he government can engage in censorship of speech based on disagreement with messages of racial equality or its misguided association of black speech with crime, so long as it does so in a content-neutral way.” Id. In response to protests following George Floyd’s murder, for example, these restrictions took the form of curfews, over-militarized police responses, and surveillance. According to Kinsley, courts should use equal protection principles to limit governmental suppression of speech when such restrictions are based on the racial identity of the speaker. Id. at 21.

Last summer, Portland, Oregon, prominently displayed law enforcement’s different levels of respect for First Amendment rights dependent on race. Portland saw truly horrifying displays of excessive use of force in response to the continuous BLM demonstrations. Protestors in Portland were subjected every night to tear gas, batons, rubber bullets, and mass arrests. Police officers targeted volunteer medics, who were attempting to help those already injured, with tear gas and projectiles. Portland police refused to provide on-site medical care to protestors and blocked ambulance access to the protests sites. Portland was not alone—from late May to June alone there were over 7,600 arrests in relation to BLM protests across the United States. Due to their vastly peaceful nature, only a mere 7% of the protests were deemed violent, the BLM demonstrations should be protected by the First Amendment. Yet police still intervened at 1 in 10 BLM protests between the months of May and August of 2020. Of all other non-BLM related demonstrations during that same time period, law enforcement only intervened 3% of the time. In the protests that did not end peacefully, the violence was often instigated by police officers or far right “counter-protestors.”

On June 1, 2020, peaceful BLM protestors, a whole block away the White House, were assaulted by National Guard soldiers and federal officers to clear a path for a shockingly hypocritical photo opportunity—the sitting President holding up a bible after walking by the broken bodies of his own citizens, beaten and bloodied on his orders. The policing of the BLM protest, even before Donald J. Trump exited the White House for his picture to be taken, saw an excessive amount of police power. Notwithstanding other military and non-military personnel, well over 4,000 National Guard soldiers were deployed to D.C. in response to BLM protestors. This reaction to BLM protestors and their supposed freedom of assembly, while grossly unjust at the time, now appears even worse after the white supremacist-fueled insurrection of January 6, 2021, met very different results.

While the Senate gathered to confirm the results of the 2020 Presidential Election, the U.S. Capitol Building was breached with the intent to overthrow the democratic process. This insurrection was a blatant display of white nationalism—promoted by Donald J. Trump. FBI Director Christopher Wray described the acts of domestic terrorism as “an affront on our democracy,” and he was clear that the events of January 6 were in no way protected by the First Amendment. Despite this open condemnation of the insurrection, and a ready understanding that these actions clearly did not fit within the protections of the First Amendment, the reaction from law enforcement was shockingly different than that of the response to the BLM protests. Initial efforts to call for police reinforcement were denied. Compared to the thousands of National Guard soldiers deployed ahead of the BLM protests, and despite numerous social media campaigns that detailed the insurrection before it happened, only 340 unarmed National Guard soldiers were sent to D.C. ahead of the confirmation hearing. The insurrectionists walked around, armed and readily identifiable, in the Capitol Building. Yet only 82 total arrests were made by the next day. Three hundred and twenty-six people were arrested on June 1, 2020, during the peaceful BLM protest. Confederate flags waved in the Capitol Building, a noose and gallows was set up outside, clothing of rioters supported the Holocaust, and an abhorent array of other terrifying symbols was on prominent display for the entire nation to see. Yet we also saw pictures of police officers taking selfies with the insurrectionists, helping the more elderly down the stairs, calmly standing by as members of prominent hate groups defaced federal property—a far cry from the militarized response less than a year earlier. People openly condemned by law makers were treated as if their First Amendment rights were at issue and needed to be upheld, while over the past year law enforcement blatantly disregarded the fundamental freedoms of BLM protestors.

The extreme opposite responses to BLM protestors compared to white supramacist insurrectionists depicts an appalling inconsistency of rights in this country. An inconsistency that upholds the severe divide between “two Americas.” A divide as old as this country that only continues to grow as we witness time and again a disparate application of what should be fundamental rights for all.

– L. Moose

OTHER SOURCES

Jennifer M. Kinsley, Black Speech Matters, 59 U. Louisville L. Rev. 1 (2020). (Available on WestLaw)

Know Your Rights: Protestors Rights (ACLU)

NLG – “Thugs” and “Riots”: Legitimizing Police Violence at Protests Against Police Violence

USA: The World is Watching: Mass Violations by U.S. Police of Black Lives Matter Protesters’ Rights (Amnesty International)

American Political Aggression and Racial Justice

This week’s post is brought to you by the collaboration between Daniel Horton, a current blog editor & Jhevon McMillan, a current 2L at University of Montana law school. Jhevon is a current member of the UM Law Negotiations Team, & works as a legal intern at Schmidt, a firm in Missoula.

In 2020, more than 159 million Americans participated in our democracy by voting in the general election. On January 6, 2021, many witnessed the riots and insurrection on Capitol Hill, the day lawmakers certified the 2020 Electoral College votes. Here, many supporters of former President Donald Trump arrived on Capitol Hill to protest Mr. Trump’s 2020 defeat. Instead, rioters breached the Capitol to undermine vote certification, perpetuate badges of slavery and terror, and demand a sitting U.S. president remain in power against the will of over 81 million voters. A rioter was even charged with assaulting a police officer with a police riot shield, as another tried to rip the Metro D.C. police officer’s mask off. For many, events on the Capitol on January 6, 2021, were not a surprise. Specifically, the aggression of rioters and police readiness. Thus, understanding the current system’s roots in racism and dehumanization is critical to uprooting the problem and planting something better.

Aggression

Racism in the United States is the misuse of power by systems and institutions fueled by white supremacy.[1] The experiences of African Americans murdered and terrorized by mob violence for generations between Emancipation and the struggle for civil rights, alongside inaction by local and federal law enforcement and lawmakers, lay the groundwork for much of today’s inequality and injustice.[2] Not to mention the other racist and violent acts perpetrated on indigenous peoples, women, and other people of color. Historically, extreme violence was used to create and perpetuate white supremacy ideology and build an economic system around it.[3] Congressional efforts to provide federal protection and civil rights to freed African Americans were undermined by the United States Supreme Court’s rulings in cases like The Slaughterhouse Cases, 83 U.S. 36 (1872); United States v. Reese, 92 U.S. 214 (1875); and United States v. Cruikshank, 92 U.S. 542 (1876).

For instance, in June 1921, a white mob demolished the Greenwood neighborhood in Tulsa, Oklahoma, known as Black Wall Street. These mobs killed more than 300 African Americans and destroyed more than 100 black-owned businesses and homes. In 1923, the same took place in Rosewood, Florida, where 97 lynchings were recorded, and thousands of Black residents’ homes and businesses were burned down. Then National Director of the NAACP, James Weldon Johnson, coined this period as the Red Summer of 1923. In recent years, white supremacists have executed deadly rampages in Charleston, South Carolina, Pittsburgh, Pennsylvania, and El Paso, Texas.

Notably, the violence against African Americans was intentional and sought to punish African Americans for economic success and take it away. Here, anti-Black mobs intentionally organized to breach African Americans’ homes and businesses and perpetuate badges of slavery and terror against the nation’s will to end slavery and institute equal protection. And despite militia groups and white nationalists general support of law enforcement, many Metro Washington D.C. and U.S. Capitol Police officers were injured and overrun by the rioters. As a statement of truth and a movement for racial justice and equality, Black Lives Matter was non-existent. These acts were committed by white American mobs who favored the “stars and bars” of the confederacy over the equal treatment of freed African Americans under the new union. On Capitol Hill, rioters too were seen carrying confederate battle flags and hand signaling “white power” (similar to the “okay” hand sign). Just two days before, on January 4, Proud Boys militia leader, Enrique Tarrio, was arrested for destroying a Black Lives Matter sign belonging to one of Washington D.C.’s oldest Black churches as onlookers held “white power” hand signs. Thus, the aggression seen on Capitol Hill was not a surprise for many as the conduct mirrored America’s not so distant past.

However, this form of aggression is not the only problem to solve. Racial disparities have long permeated every step of the criminal justice process, including law enforcement agencies. Importantly, not all law enforcement officers hold white nationalist views, and not all militia members have white nationalist views. Though law enforcement officers’ abnegation to recognize and address racially discriminatory conduct by law enforcement officers, progress towards equality remains stymied.

A 2006 FBI counterterrorism report indicated white supremacists infiltrating law enforcement as a concern.[4] In 2017, the FBI reported that white supremacists posed a “persistent threat of lethal violence” that has produced more fatalities than any other domestic terrorists since 2000.[5] Michael McGarrity, the FBI’s assistant director for counterterrorism in 2019, indicated he has not read the FBI’s 2006[6] assessment indicating white supremacist infiltration of law enforcement.[7] The flagrant inattention to a report directly relevant to Mr. McGarrity’s position is outright abnegation of job duties; especially, after the Capitol Hill insurrection involved militias and white nationalist groups. Internal FBI communications also indicated that white supremacist and anti-government militia groups have “active links” to law enforcement officials.[8] But this is nothing new.

In 1964, civil rights workers during the Freedom Summer voter registration drive went missing (Mississippi Burning). After President Lyndon Johnson ordered FBI Director J. Edgar Hoover to find them, it was revealed that local law enforcement refused to investigate the murders. The Justice Department concluded the investigation by charging 19 Klansmen with civil rights violations.[9] In the 1980s, a KKK firebombing investigation of a Black family’s Kentucky home exposed a Jefferson County police officer as a Klan leader. In his deposition, the officer admitted to directing a 40-member Klan subgroup called the Confederate Officers Patriot Squad (COPS), half of whom were police officers.[10] Lastly, in Thomas v. County of Los Angeles, a $9 million settlement in 1996 concluded a class action lawsuit alleging a gang of racist Los Angeles County sheriff’s deputies (Lynwood Vikings) systematically shot, killed, terrorized, and house-trashed Black and Latino communities.[11] A $7 million settlement in 2019 linked two Los Angeles County sheriff’s deputies to similar deputy gangs like that of 1996. However, when the deputies were forced by court order to reveal other deputies with deputy gang tattoos, the case settled.

Further, inattention of officer conduct is harmful to law enforcement. The lack of readiness on January 6 illustrates this. Senior officials with the Pentagon and Justice Department shared anonymously with the Associated Press that U.S. Capitol Police denied their help days before as reinforcements. The Capitol Police has more than 2,300 staff and a $500 million budget. Some Capitol Police officers indicated they never heard from Police Chief Steven Sund, who would resign the next day. Lt. Tarik Johnson gave the order to refrain from using deadly force and was heard repeatedly asking, “Does anyone have a plan?” Notwithstanding warnings from various agencies and online traffic, it is unclear why the threats escaped heightened security measures. Though, many suggest the link between white supremacists and law enforcement as the reason.

Any law enforcement officers associating with these groups should be treated as a matter of urgent concern because such policing undermines public trust in equal justice and the rule of law. Operating under color of law, such officers endanger the lives and liberty of people of color, religious minorities, LGBTQ+ people, and anti-racist activists, both through their violence and failure to properly respond when other racist, violent crime victimizes these communities.

In this new year, excuses for this type of aggression and renegade law enforcement are unsustainable. As Americans, fanning the violent flames of aggression is not patriotism or justified. There must be improved avenues to uphold the rule of law without racial discrimination in the name of “preserving American law and order.” Capitol Hill’s insurrection is a sign for all Americans to relinquish the pitchfork of hatred and reject justifications for harming innocent life. Continued equivocation of aggression and white supremacy fuels further death and turmoil in a nation that deserves much better.

Thank you for reading this week’s post dedicated to Dr. Martin Luther King Jr. and his legacy of advancing civil rights through nonviolence and civil disobedience.

– J. Mcmillan and D. Horton

Click to access 13%20-%20Dias%20Article%20-%20sm.pdf

https://www.brennancenter.org/our-work/research-reports/hidden-plain-sight-racism-white-supremacy-and-far-right-militancy-law#footnote8_i39kb0n

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/black-to-the-future/tolerance-for-violence/

https://time.com/5894743/trump-proud-boys-history/

https://www.nationalgeographic.com/history/2020/06/remembering-red-summer-white-mobs-massacred-blacks-tulsa-dc/

https://abcnews.go.com/US/capitol-rioter-allegedly-posted-pelosis-office-instagram-arrested/story?id=75324078

Open Carry Laws, Guns on Capitol Hill, and a Police Force Outgunned by Militias

https://www.foxnews.com/politics/democrats-split-domestic-terrorism-law-capitol-riot

Tell me again how defund the police is wrong when no one even bats an eye at a policeman in Oregon flashing a white power sign at a Proud Boy that he’s obviously chummy with.
pic.twitter.com/3hPEcyM8nI
— lisa hendricks (@MsLisaHendricks) July 5, 2020

[1] Joseph R. Brandt, UNDERSTANDING AND DISMANTLING RACISM, 75–76 (2007).

[2] CONG. GLOBE, 42nd Cong., 1st Sess., 375, 436-40 (1871) (Rep. Clinton Cobb).

[3] Stephen Kantrowitz, Ben Tillman & The Reconstruction of White Supremacy, 2 (2000).

[4] See generally Counterterrorism Div., Fed. Bureau of Investigation, White Supremacist Infiltration of Law Enforcement, (2006).

[5] Federal Bureau of Investigation and Department of Homeland Security, Joint Intelligence Bulletin, White Supremacist Extremism Poses Persistent Threat of Lethal Violence, May 10, 2017, https://www.documentcloud.org/documents/3924852-White-Supremacist-Extremism-JIB.html.

[6] See Counterterrorism Div., Fed. Bureau of Investigation, White Supremacist Infiltration of Law Enforcement, 3-4 (2006).

[7] Confronting Violent White Supremacy (Part II): Adequacy of the Federal Response—Hearing before the Subcommittee on Civil Rights and Civil Liberties of the Committee on Oversight and Reform, House of Representatives, 116th Cong. 22 (2019), https://docs.house.gov/meetings/GO/GO02/20190604/109579/HHRG-116-GO02-Transcript-20190604.pdf.

[8] Federal Bureau of Investigation, Counterterrorism Division, Counterterrorism Policy Directive and Policy Guide, April 1, 2015 (updated November 18, 2015), 89, https://assets.documentcloud.org/documents/3423189/CT-Excerpt.pdf.

[9] U.S. Department of Justice, Civil Rights Division, Investigation of the 1964 Murders of Michael Schwerner, James Chaney, and Andrew Goodman, June 2016, 13–14, http://docshare04.docshare.tips/files/31625/316255786.pdf.

[10] In Re the Courier-Journal and Louisville Times Company, Petitioners, v. Robert Marshall and Martha Marshall, Respondents, 828 F.2d 361 (6th Cir. 1987); Marshall v. Bramer, 828 F.2d 325 (6th Cir. 1987).

[11] 978 F.2d 504 (9th Cir. 1992).

Is the United States the World’s Oldest Democracy?

This week’s post is by our own Professor of Law & Director at the Rural Justice Initiative Pro Bono Program Faculty Supervisor – Jordan Gross. She has won many awards – among them, a Fulbright U.S. Scholar Program Award, Margery Hunter Brown Faculty Merit Award, Robert and Pauline Poore Law Faculty Service Award, James C. Garlington Teaching Award, and a Native American Law Students Association Excellence in Teaching Award. She earned B.A. degrees in Political Science and English Literature from the University of Washington in 1989. She earned her J.D. degree, cum laude, from Howard University School of Law in 1993, where she was a member of the law review. But many know her as their teacher in Criminal Procedure–Adjudicative, Criminal Justice in Indian Country, Criminal Justice Reform Interdisciplinary Graduate Seminar, White Collar Crime, Federal Courts, or Professional Responsibility. She also supervises the Criminal Defense and Civil Rights Clinics.

We are winding down from an historic national election. (Or at least most of us are – Georgia still needs to hold an election on January 5, 2021 for its two U.S. Senate seats.) It was historic because we held a national election in the midst of a worldwide pandemic that generated the largest number of votes in U.S. history, and the largest voter turnout rate in the U.S. in over a century. We can be rightly proud about conducting the most secure election in U.S. history, especially given the challenging circumstances. And we can be equally grateful to local poll workers who logged in long hours under difficult conditions to count our votes. This accomplishment also presents an opportunity to reflect on the history of voting in the U.S., and to think about the U.S.’s overall standing in the Democracy Hall of Fame.

With apologies to fellow poly sci nerds (yes, the U.S. is not technically a democracy, but a republic), this post uses the term “democracy” in its broadest sense. That is, a system of government in which the power to govern is vested in the people and exercised, either directly or indirectly, through regularly-held free elections.

So, who is the world’s oldest democracy under this broad definition? As it turns out, this is a hotly-contested point. As with many things, what seems like an objective historical fact quickly becomes complex when its underlying assumptions are examined. This post does not purport to settle the “World’s Oldest Democracy” debate, just offer some things to consider when we think about where the U.S fits into all of it.

The reason no one agrees who came first is because the answer depends on what metrics you use. If the question is which is the oldest existing nation with a constitutional government where people elect their own representatives then the U.S., which came into existence in 1788, appears to be the winner. To be fair, or at least accurate, the U.S. cannot claim to have maintained continuous or regular democratic national elections since its founding. The Civil War, which lasted 1861-1865, broke that streak. During the war years, of course, two governments claimed sovereignty over part of the nation. One outcome was that voters in the eleven states of the Confederacy did not participate in the national election of 1864.

What if we ask which is the oldest existing nation with a continuous participatory democracy? On that score, the Iroquois Confederacy, which traces its consensus-based government back to at least 1142, wins handily.

What if we say you can’t claim the mantle of a true democracy absent universal adult suffrage? That complicates matters significantly, particularly for the U.S. The U.S. Constitution initially left all aspects of voting, including determining who was eligible to vote, to the States. The result? After the Founding, states generally limited the vote to white male property owners. That obviously left out a lot of people and limited the vote to the affluent. Property requirements for voting were mostly eliminated in the U.S. by 1860. But to vote, you still had to be a guy, and white.

The Fourteenth Amendment, ratified in 1868, conferred U.S. citizenship on formerly enslaved male Africans in U.S. But it didn’t guarantee a right to vote. Rather, it penalized States who denied the right to vote to any male adult citizen in a national election. It took the Fifteenth Amendment, ratified in 1870, to create universal male suffrage in national elections. Even then, the right to vote in national elections was limited to adult males.

While it looked good on paper, the Fifteenth Amendment didn’t actually secure universal suffrage for formerly enslaved male citizens. That is because many states (remember how the Constitution gave them primary responsibility for running national elections?) figured out a lot of other ways to keep Black men from voting. This included poll taxes, literacy tests, intimidation, and “grandfather” provisions. “Grandfather” provisions restricted the vote to men whose grandfathers had voted in previous elections. This obviously excluded anyone whose grandfather couldn’t vote to begin with . . . like the descendants of formerly enslaved Africans or immigrants. The last of the state grandfather voting laws wasn’t struck down as unconstitutional until 1915 in Guinn v. U.S.

All good for grandsons in the U.S.. But what about her granddaughters? Women in the U.S. were not guaranteed universal suffrage in national elections until the Nineteenth Amendment was ratified in 1920.

What about poor people? Poll taxes, which disenfranchised poor people of all races and both genders, weren’t abolished until 1964 when the Twenty-fourth Amendment was enacted.

What about indigenous peoples, who were practicing democracy long before anyone else arrived on the continent? The Fourteenth Amendment specifically excluded “Indians not taxed” from the “whole number of persons in each State” in apportioning national representatives. And the Fifteenth Amendment was understood not to extend to indigenous persons who were citizens of their respective Tribal nations because they were not considered U.S. citizens. It wasn’t until Congress passed the Snyder Act of 1924 that indigenous persons became U.S. citizens. Actually, it is more accurate to say that indigenous persons were forced to become U.S. citizens since no one bothered to ask whether Tribal citizens also wanted to become U.S. citizens.

One would have thought the Snyder Act would have made the Fifteenth Amendment voting rights retroactively applicable to indigenous persons, making them eligible to vote in national elections. But it wasn’t until over forty years after the Act was passed that indigenous U.S. citizens were extended suffrage throughout the U.S.. And, although technically enfranchised, indigenous communities continue to experience systematic disentrancement.

So, back to the original point. If the metric of a true democracy is universal adult suffrage, then, at the earliest, the U.S. taps in around the late 1940s. Some might even argue we didn’t join the club until Congress passed the Voting Rights act of 1965. Still other might say we still aren’t there because of the extraordinarily large number of inmates, probationers and paroles in the U.S. who are routinely excluded from voting. (And who, by the way, happen to be mostly non-white and poor.)

And that’s just the right to vote. What if we throw in the right to be a candidate and hold elected office? Or the right to participate meaningful? Then the title might have to go to Finland, which became the first country to abolish race and gender requirements for both voting and for serving in government in 1906. And, here’s the crazy thing, enfranchising everyone appears to eventually translate into a more inclusive government, not just a more inclusive electorate. Finland, the first nation to embrace universal adult suffrage, made history recently when it seated an all-female coalition government led by a female prime minister.

The U.S. is among the oldest modern democracies, to be sure. But it is only the oldest if we don’t factor in some other things that are nice to have in a democracy – like universal adult suffrage. So, is the U.S. the World’s Oldest Democracy? Law students, you already know the correct answer to that kind of question. A resounding “it depends!”

Professor Gross’ SSRN Author Page can be found at https://ssrn.com/author=1741042

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury [1]

America has seen racial discrimination in our legal system time and time again. While racial discrimination has infiltrated all facets of the American Criminal Justice System, jury selection outcomes are no exception, and have resulted in unfair and biased verdicts.

Perhaps most infamously, in 1955, Emmett Till’s murderers walked free thanks to an all-white jury. Emmett Till’s “naked body was found floating in the Tallahatchie River. His head was crushed — he’d been brutally beaten and shot — and he was tied to a 75-pound cotton gin fan with a piece of barbed wire that was wrapped around his neck. A ring on his finger had to be used to help identify him.”^[2]

What was his crime for deserving a Southern-style vigilante-justice end? Nothing. At the time a white woman, Carolyn Bryant, testified that Till, a 14 year old black teenager had “touched her hand, grabbed her waist and let out a “wolf whistle” as he left the store.”^[3] Despite these allegations, later, in 2004, Carolyn Bryant confessed to author Timothy B. Tyson, that “Till never touched her or said anything suggestive” and said “Nothing that boy did could ever justify what happened to him”^[4]

Mamie Bradley, Emmett’s mother, was only able to have his body returned to her in Chicago when she promised to the undertakers she would not look inside, as he was so horribly disfigured. After receiving his body in Chicago, she held an open casket funeral, drawing a crowd of roughly 50,000 people.

His murderers were Roy Bryant and J.W. Milam, Carolyn Bryant’s husband and his half brother. The jury deliberated for roughly an hour. The deliberation would have been even shorter if they had not ordered lunch.

After being found not guilty, the killers then profited from this murder. They were paid around $3,000 (roughly the equivalent of $30,000 today)^[5] to give an exclusive tell all to Look Magazine. Protected by double jeopardy, they admitted in full to the brutal murder.^[6] Both men are dead now, one in 1980, the other in 1994. Neither was ever held accountable for the brutal murder of Emmett.

How a Jury is Formed

“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . .”

Impartial: not partial or biased ; treating or affecting all equally.^[7]

Jury selection begins with a master list of perspective jurors, which is compiled by the jury commissioner. Today, the master list is typically derived from a variety of sources, which include voter registration lists, phone books, driver license lists. Then a randomized process is used to select a subset of jurors from list, called a venire. Prospective jurors on the venire will then either be called to serve on either a specific case, as in Arizona, or they will be called for an amount of time, as in Ravalli County, Montana.

After the venire is contacted, prospective jurors will be given a survey to respond to, that will provide a profile of themselves and send it back to the court. These surveys can result in: (1) Disqualification based on something like citizenship status, illiteracy, underage status, or a prior felony conviction; (2) Exemption, usually due to occupation; or (3) Selection.

Jurors are selected from this process for the jury pool. Members of this jury pool may apply to be excused, sometimes called a hardship exception. Prospective jurors may be excused from serving due to financial hardship, transportation issues, advanced age or health issues.

Once the selection is narrowed, the jurors enter into the last step – voir dire, which is often called jury selection on a juror’s physical notice. The Court issues a summons to those jurors selected for voir dire.

During voir dire, the perspective jurors are asked questions, by the attorneys, judges, or both depending on the jurisdiction. During this process, the parties use the jurors’ responses to these questions to further narrow the pool to the petite jury.

Parties may eliminate prospective jurors by issuing two types of challenges, or a request a person be removed from the jury:(1) challenge for cause, and (2) peremptory challenge.

Attorneys get unlimited challenges for cause. Examples of a for cause challenge would include a juror saying, “I know the defendant, he’s a great man – he didn’t do this.” It may also just be a general bias “Police officers never lie or do anything wrong, this defendant must be guilty.” These prospective jurors are considered to lack impartiality. Each jurisdiction has different rules defining impartiality. Montana’s can be found at MCA § 46-14-115.

Parties have a limited number of peremptory challenges.. These challenges require no explanation for the juror’s removal. Some people classify these challenges as ‘hunches’ or ‘shots in the dark.’

Once each party has exhausted their peremptory challenges and any for cause challenges, the remaining jurors form the petite jury or trial jury. The number of jurors that compose the petite jury range from no fewer than six to twelve jurors in state courts and twelve jurors in federal courts.

It took until 1986 for the Supreme Court to explicitly conclude “Racial discrimination in selection of jurors harms not only the accused whose life or liberty they are summoned to try.”^[8] Batson became a name known by even the general public through numerous legal shows depicting a stunning defense attorney on the right side of justice who exclaims ‘Batson challenge your Honor!” when the dastardly prosecutor has stricken all of the black jurors.

But rarely do those T.V. shows accurately depict what happens next: the Batson three-step. Step (1) the Defense (the objecting party) must show a Prima Facie case of discriminatory use of peremptory challenges. Step (2) the Prosecutor (the opposing party) must provide race-neutral reason for challenged strikes. Step (3) the Defense has burden of demonstrating intentional discrimination.^[9]

– E. J. Bolan & S. T. Bonilla

Coming Next: A look at Today’s Jury makeup, more than 50 years after Batson: have we solved the problem?

^[1] United States Constitutional Amend. VI

^[2] https://www.apmreports.org/story/2018/06/05/all-white-jury-acquitting-emmett-till-killers

^[3] https://www.apmreports.org/story/2018/06/05/all-white-jury-acquitting-emmett-till-killers

^[4]https://www.tampabay.com/features/books/review-timothy-b-tysons-blood-of-emmett-till-reveals-another-layer-of/2313390/

^[5]https://www.in2013dollars.com/us/inflation/1955?amount=3000

^[6]https://www.apmreports.org/story/2018/06/05/all-white-jury-acquitting-emmett-till-killers

^[7] https://www.merriam-webster.com

^[8] Batson v. Kentucky, 476 U.S. 79, 87, 106 S. Ct. 1712, 1718 (1986)

^[9]http://www.ncids.org/Defender%20Training/2008%20Fall%20Conference/BatsonCheatSheet.pdf