Tag Archives: Supreme Court

From Plessy v. Ferguson to #Ferguson, Missouri

Dispelling the myth of equality in the legal system

This is a re-post from the Uprooting Criminology blog.

Two weeks ago I attended a rally in Dallas, Texas to protest police brutality during the death of Michael Brown. There were many impassioned speeches and heart felt rallying cries. One of those chants “No Justice, No Peace; No Racist Police,” caused me to pause and reflect on the statement. I simply could not bring myself to repeat the phrase. Perhaps it was because addressing the individual racist police officer does not address the real issue.

Incidents such as Mike Brown in Ferguson, MO and Eric Garner in New York are symptomatic of the larger issue of institutional racism that permeates the legal system in the United States. The myth of equal treatment in the legal system has endured for centuries. Whether it is through the Supreme Court case Plessy vs. Ferguson in 1896 until the shooting of an unarmed black man in Ferguson Missouri in 2014, rhetoric continues to proclaim fairness and equality in the legal system, when all of the evidence speaks to the contrary.

In 1896 the Supreme Court upheld the constitutionality of the doctrine of “separate but equal.” It effectively ensured legalized segregation. Under this doctrine, the government was allowed to require that services, facilities, public accommodations, housing, medical care, education, employment, and transportation be separate provided that the quality of each group’s public facilities was equal. This ruling was overturned by the Supreme Court case Brown vs. Board of Education (1956).

The court ruled in this case that segregation was inherently unfair and that policies that separate race denote inferiority among those races. Problems of inequality persist in the criminal justice system today to an even greater extent than what was outlined by the doctrine of “Separate but Equal.” Through various ways minorities are treated separately and unequally. The dilemma arises because many fail to acknowledge this separate treatment and even worse the disproportionate effects on minority communities. So the first step is to finally acknowledge some of the factors that have led to the unequal treatment of minorities in the United States.

Institutional inequality is in part due to the make-up of the law makers. Law makers are disproportionately white (over 85%), male (over 80%), and are usually more than 20 years older than the average American. More important than demographic information however, is the way crime is constructed in the legal system. This construction of crime has had a direct effect on urban cities like Ferguson, MO; which has a populous dominated by people of color.

Crime is not labeled based on the degree of harm it causes but rather the illusion that street crime is the most dangerous form of crime. This emphasis causes a disproportionate focus on crime based on urban areas, particularly ones with minorities as the overwhelming demographic. If police are heavily focused on street crime and disproportionately located in urban areas, it is inevitable that there will be disparities in stop and arrest rates between whites and people of color. It is also certain that force will be more likely to be used against people of color than against whites.

This is verified by statistics that show blacks and Hispanics are far more likely to report run-ins or harassment by officers. They are 3-4 more likely to be arrested and have force (including lethal force) used against them (Bureau of Justice Statistics 2007). The shooting death of Mike Brown fits well into these statistics.

So beyond dispelling the myth of inequality in the legal system what else can be done to address the unequal treatment of minorities? Much research has been conducted to find empirical data to quantify to some extent the effects of institutional racism in our legal system. The Baldus Study and research from the Kirwan Institute on implicit bias to name a few. However, further research combined with legislative change offers a more effective solution. In any case, John Powell in a recent interview said it best, “We still have not come to full recognition of blacks and other people as full citizens, as full people. And one way we can demonstrate that is that when we see another human being, our brain is actually wired so that part of the brain lights up, just from recognition of another human being.” When our policy making finally reflects this sentiment we will have a more equitable legal system.

Thoughts on the Kagan Hearings so far

Claims to objectivity and neutrality are farcical.  This is ridiculous. I am not a supporter of Kagan or the current administration, but most of the GOP’s accusations can be summed up this way: Elena Kagan worked for Thurgood Marshall.  Thurgood Marshall was African American and “liberal” (that whole civil rights and being against segregation thing), therefore, Elena Kagan is going to be an “activist” judge. Puullleeeezze. Give me a break. Everyone is biased, Everyone has a political agenda. We do not get Supreme Court nominees from some factory separated from American society where there are no opinions allows. Objectivity and neutrality are false myths, and the history of the Supreme Court proves my point. Conservatives want activist judges who will be, well, conservative, while liberals will nominate liberals.  I think implicit in the epistemology presented by the Republicans who are bashing the good name of Thurgood Marshall is the same message that the majority in biblical and theological studies sends to racial minorities: women, Blacks, Hispanics, Asians, whatever your descent; you are incapable of being “unbiased” “neutral” and “objective” because you are unable to distance yourself from your opinions (oh, and that whole history of them having inferior IQs too, right?).  All of this is just proves that epistemological violence becomes racial and gender violence.