Aggressively Defending My Clients Since 1990


On Behalf of | Dec 25, 2014 | Firm News

On this day when there is supposed to be good will to all men (and women), I have been thinking about conversations I have had with friends of mine around Christmas.  These are good people who have worked all their lives.  They have families and really care about others.  I believe if someone were hurt, they would help them regardless of the hurt person’s race.

But they made a startling (at least to me) assertion at this time.  Essentially their assertion was that racism did not exist anymore in America.  At first, I was so amazed at this assertion that my mind went blank.  Having filed Milwaukee County’s first racial profiling challenge as well as challenging felon disenfranchisement (which is but an extension of Jim Crow laws), I could not even comprehend this remark.

Incidentally, I realize some would say that that this is not a discussion to be had on Christmas, the celebration of the birth of Jesus Christ.  Such a comment forgets that the historical Jesus was at least olive colored, or, if one accepts accounts of the Old Testament on the appearance of the coming Messiah, Jesus was “blacker than coal.”  Lamentations 4:7

The initial justification for the assertion that racism does not exist in America is because they had not seen any racism nor did they believe themselves to be racist.  My first reply was that saying racism does not exist because you yourself had not experienced it or seen it is like asserting world hunger does not exist because you just stuffed yourself with a wonderful Christmas dinner.  In a sense, we are color blind: we are blind to racial discrimination because we do not experience it and therefore do not see it.

Some (like our current Supreme Court) have twisted Justice Harlan’s dissent in Plessy v. Ferguson, 163 U.S. 537(1896) to strike down affirmative action programs because law should be “color blind.”  This interpretation does violence to Justice Harlan’s opinion.  The law, specifically the Constitution, according to Justice Harlan, was color blind to a system set-up to protect a “dominant race” while imposing a “badge of servitude” on others.  Plessy, at 555-62.  The 14th amendment was designed to protect newly freed slaves from “Black Codes,” but allowed for legislation favoring Blacks like the Freedman’s Bureau Acts.  Failing to distinguish between racism and affirmative action is like failing to distinguish between a no trespassing sign and a welcome mat.

Further, it was suggestion that racism does not exist because statistics show that more law enforcement is needed in Black neighborhoods because crime statistics show that Blacks commit more crimes.  More than one law enforcement official has denied that race played any role in police or deputies’ decisions on whom to stop, suggesting instead that whites are simply less likely than African‑Americans or Hispanics to be engaged in some form of crime.  In other words, law enforcement defend the use of race as a basis for forming suspicion precisely because of racially disparate arrest patterns: because members of racial minorities commit more crimes, police argue, it is not invidious discrimination to treat minorities differently.  After all, the Supreme Court has justified discrimination in cases of “pressing public necessity.”  Korematsu v. United States, 323 U.S. 214(1944) (the Supreme Court’s internment of American citizens of Japanese ancestry during World War II).

Such arguments are reminiscent of those advanced in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), to justify segregated schools.  This tendency to seek justification in disproportionate arrest statistics has the unfortunate effect of perpetuating a fallacy, generating more unbalanced arrest patterns that consequently provide a basis for continued selective enforcement.  Indeed, a Presidential Council concluded:

Discriminatory behavior on the part of police and elsewhere in the criminal justice system may contribute to blacks’ high representation in arrests, convictions, and prison admissions…Changing America: Indicators of Social and Economic Well-Being by Race and Hispanic Origin(Council of Economic Advisors For the President’s Initiative on Race, September, 1998) 57.

Here it is by the numbers:

Relative to population size, about five times as many African-Americans as whites get arrested for the serious index crimes of murder, rape, robbery, and aggravated assault.  About three times as many African-Americans as whites get arrested for less serious crimes, which make up the bulk of arrests and currently flood the criminal justice system.  If after arrest there were no racial bias in the criminal justice system, the racial makeup of the prison population should at least roughly reflect the racial disparity in arrest rates – if three times as many African-Americans get arrested for less serious crimes, then there should be roughly three times as many African-Americans per capita in prison for those crimes.  But the racial difference among African-Americans and whites in prison is overwhelmingly wider than arrest rates suggest it should be absent racial bias.  There are seven African-American to each white in prison…Most studies reveal what most police officers will casually admit: that race is used as a factor when the police decide to follow, detain, search, or arrest…To justify the use of race in forming this suspicion, these officers might point to racial disparities in arrest patterns: if minorities get arrested more often, they argue, then minorities must be committing more crime.  This is a self-fulfilling statistical prophecy: racial stereotypes influence police to arrest minorities, thereby creating the arrest statistics needed to justify the racial stereotype.  Steven R. Donziger, Ed., The Real War on Crime: The Report of the National Criminal Justice Commission (Harper Perennial 1996) 107-09.  Emphasis original.

The problem of using arrest statistics to justify increased police presence in Black neighborhoods was explained by New Jersey Attorney General Peter Verniero:

To the extent that [] police and other law enforcement agencies arrest minority motorists more frequently based on stereotypes, these events, in turn, generate statistics that confirm higher crime rates among minorities, which in turn, reinforces the underpinnings of the very stereotypes that gave rise to the initial stops.  In short, police officers may be subjecting minority citizens to heightened scrutiny and more probing investigative tactics that lead to more arrests that are then used to justify those same tactics.  This insidious cycle has served to create an ever-widing gap in the perception of fairness that persons of color and whites have about law enforcement and the criminal justice system…[U]sing profiles that rely on racial or ethnic stereotypes is no better, and in many respects is far worse, than allowing individual officers to rely on inchoate and unparticularized suspicions or hunches.  Interim Report of the State Police Review Team Regarding Allegations of Racial Profiling, (April 20, 1999), p. 70-72.

It was also pointed out the disruptions caused by the recent protests in Milwaukee and around our nation.  These protests disrupt business and shopping.  Again, it should be pointed out what these protests are really about.  Examining the protests closely demonstrates that the protestors are protesting not being a part of the social order NOT that they want to be separate from the existing social order.

Finally, it is true that the protests disrupt business and shopping.  Kind of like when Jesus protested by overturning the tables of the money changers.