Tag Archives: criminal justice system

The History of Black Incarceration Is Longer Than You Think | Time

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The United States contains less than five percent of the world’s population but incarcerates one-quarter of all prisoners across the globe. Statistics have long shown that persons of color make up a disproportionate share of the U.S. inmate population. African Americans are five times more likely than whites to serve time in prison. For drug offenses alone, they are imprisoned at rates ten times higher.

Recent scholarship has explored the roots of modern mass incarceration. Launched in the 1980s, the war on drugs and the emergence of private, for-profit prison systems led to the imprisonment of many minorities. Other scholarship has shown that the modern mass incarceration of black Americans was preceded by a 19th century surge in black imprisonment during the Reconstruction era. With the abolition of slavery in 1865, southern whites used the legal system and the carceral state to impose racial, social and economic control over the newly liberated black population. The consequences were stark. In Louisiana, for example, two-thirds of the inmates in the state penitentiary in 1860 were white; just eight years later, two-thirds were black.

The incarceration of African Americans did not begin suddenly with the end of the Civil War, however. Confinement functioned as a punishment during bondage as well. Masters were the law on their own plantations and routinely administered their own brand of justice. Although they usually relied on the whip, countless enslavers also chained their human property in plantation dungeons below the main dwelling house or in a barn. Some locked enslaved persons in a hot box under the scorching southern sun. The more formal legal system, too, sometimes deposited enslaved individuals in state or local incarceration facilities.

Charlotte, an enslaved woman from northern Virginia, experienced several of these institutions firsthand over a 17-year period. Using court records to trace her life illustrates the many official, lawful forms of imprisonment that the enslaved might encounter in the antebellum era.

In 1840, Charlotte was held in bondage in Clarke County, Virginia, west of Washington, D.C. She was only 16 or 18 years old, a dark-skinned, diminutive young woman, standing just four feet 11 inches tall. Legally, she was the property of Eliza Pine, a white woman whom Charlotte despised. Reportedly thinking that committing a crime would prompt Pine to sell her, on March 10, Charlotte set fire to a house in the town of Berryville. She was arrested for starting the blaze and placed in the local jail as she awaited trial.

Enslaved people were imprisoned briefly in local public jails or workhouses under a variety of circumstances. Masters sometimes made use of such facilities to punish bond people deemed troublesome or, if needed, to store them securely. Enslaved individuals apprehended as runaways or awaiting trial or sale at auction also saw the inside of city or county jail cells. In all of these instances, the enslaved usually measured their terms of incarceration in just days or weeks.

Source: The History of Black Incarceration Is Longer Than You Think | Time

Black Girls, Domestic Violence, and the Limits of Self-Defense | Black Agenda Report

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Black Girls, Domestic Violence, and the Limits of Self-Defense

Submitted by Lindsey E. Jones on Tue, 09/20/2016 – 17:42

by Lindsey E. Jones

Recent scholarship in the history of black women and the carceral state illustrates the extent to which systems of criminal justice and law enforcement have both historically failed to protect black female victims of domestic violence and criminalized black women who rise up in their own defense.

Black Girls, Domestic Violence, and the Limits of Self-Defense

by Lindsey E. Jones

This article previously appeared in the blog of the African American Intellectual History Society.

“Legal systems in this country explicitly and implicitly render black women defenseless against intra- and interracial violence.”

The case of Bresha Meadows, an African American teenage girl in Ohio, is a sad commentary on the failure of the state to protect victims of domestic violence. After a lifetime of watching him physically and psychologically abuse her mother—and of being subjected to threats and verbal abuse, along with her siblings—Bresha allegedly shot her father to death while he slept on July 28, 2016. While her mother’s family and her attorney consider her actions to have been in self-defense, the county prosecutor has charged Bresha with aggravated murder. It remains to be seen whether she will be tried as a juvenile or as an adult. At stake is the possibility that Bresha, who marked her fifteenth birthday in juvenile hall just weeks after her arrest, could spend the rest of her life in prison if convicted as an adult.

While the case is making its way through the courts and the families of Brandi Meadows (Bresha’s mother) and Jonathan Meadows (Bresha’s deceased father) share conflicting stories with news media about the latter’s personality and propensity toward violence, as well as their conflicting opinions about premeditation versus self-defense, it is important to note that this case is neither isolated nor entirely new. Recent scholarship in the history of black women and the carceral state illustrates the extent to which systems of criminal justice and law enforcement have both historically failed to protect black female victims of domestic violence and criminalized black women who rise up in their own defense.

“Survivors of intimate partner violence dramatically overrepresented among incarcerated black women.”

Historian Kali Gross, in providing historical context to the case of Marissa Alexander, argues that the state’s willingness to condemn this woman for defending herself against an abusive husband points back through centuries of American history to “the legacies of an exclusionary politics of protection whereby black women were not entitled to the law’s protection, though they could not escape its punishment.” Gross traces the ways in which “racialized, gendered notions of protection” have, from the seventeenth century on, shaped legal systems in this country that explicitly and implicitly render black women defenseless against intra- and interracial violence. She argues that this exclusionary politics of protection fuels the current mass incarceration crisis, with survivors of intimate partner violence dramatically overrepresented among incarcerated black women.1

Bresha Meadows’s case exemplifies Gross’s concept of the exclusionary politics of protection. This past May, Bresha ran away from home to the home of an aunt, Martina Latessa. Latessa, a police officer working in a domestic violence unit in Cleveland, was forced to return Bresha to her father, who had reported the girl as having been kidnapped by her aunt. Latessa reported her brother-in-law to Family Services, which resulted in an agent interviewing Brandi Meadows about the allegations of abuse—as Jonathan Meadows sat beside her. Neither law enforcement nor the state bureaucracy could protect Brandi Meadows and her children from this abuse, which she and her family assert intensified after this incident. As a result of the state’s failure to end the cycle of trauma in her family, Bresha Meadows took matters into her own hands—and was charged with aggravated murder, for which she could potentially spend the rest of her life in prison.

Gross’s essay compellingly reveals the intersections of race, gender, and class in black women’s hyper-vulnerability to domestic violence; state failure to prevent or put a stop to said violence; and the too-common outcome of black women being incarcerated for offenses resulting from attempting to defend themselves against domestic violence. However, as the case of Bresha Meadows illustrates, there is another vector of identity that often doesn’t appear in our historical analyses of black females and the carceral state: that is, age.2

“For black women in the Jim Crow South—as in antebellum times—domestic violence was constitutive of domestic labor.”

Where race, gender, and class have worked together to create the conditions discussed above, the erasure of age difference has historically created disadvantages for black girl victims of domestic violence. One prominent example recently provided by historian LaShawn Harris is that of Virginia Christian. Often referred to as the first woman to be executed by the Commonwealth of Virginia, Christian was in reality a seventeen-year-old girl when she was killed by electric chair in 1912—a fact that her advocates hoped would persuade the state to show her mercy.3

Virginia Christian belonged to a working-class black family in Hampton, Virginia, and needed to work in order to contribute to her household, including her disabled mother. From the age of thirteen, she served as a laundress for a middle-class white family named Belote in Hampton. During a dispute about missing jewelry that turned physical, Virginia killed the matriarch of the family—a crime she confessed to committing in self-defense. Harris argues that “Christian’s act of self-defense delineated working-class African American women’s impetuous ways of protecting their bodies and their often last attempts to seek and secure long-awaited personal justice—especially when legal protection seemed beyond their reach.” While there is no archival evidence that Ida Belote had laid hands upon Virginia Christian prior to this altercation, there is plenty of evidence to demonstrate that for black women in the Jim Crow South—as in antebellum times—domestic violence was constitutive of domestic labor, the racially prescribed set of occupations for black women and girls.4

Christian’s response was most immediately triggered by Belote’s accusations of theft and subsequent physical assault on March 18, 1912, but it is conceivable that she was also responding to other physical and psychological traumas accumulated over three years of working in the Belote household.

The analogy from Virginia Christian in 1912 to Bresha Meadows in 2016 is imperfect, but these cases both illustrate the extent to which the state has failed to consider age in evaluating black girls’ actions in self-defense from domestic violence. Sadly, over a century later, Bresha’s advocates find themselves making very similar demands of a system that hasn’t changed enough since Virginia’s trial, and employing very similar tactics in their pursuit of mercy for this abused adolescent girl.

“In the minds of whites, the accused, regardless of her age, was a deviant and vulgar black murderess that had to be punished for her crime.”

In the case of Virginia Christian, the Commonwealth of Virginia ignored evidence that Christian committed the crime at sixteen years of age in order to prevent her minority status from impeding its plan to execute her. Harris argues that, “in the minds of whites, the accused, regardless of her age, was a deviant and vulgar black murderess that had to be punished for her crime; essentially, Christians’ race trumped her gender and age. By denying Christian of her adolescent status, the State of Virginia sought to punish her to the full extent of the law.”5

Black and white Americans wrote letters and circulated petitions pleading with the Commonwealth to consider Christian’s youth as a factor in her crime and her punishment and to commute her sentence from execution to life in prison. In the end, neither Christian’s appeal to self-defense, nor her advocates’ appeal to adolescence, could spare her from the lethal retribution of the state.

In a throwback to the campaign to spare Virginia Christian’s life in 1912, advocates of Bresha Meadows are writing letters and circulating petitions in the hope that local prosecutors take into account her age and her status as a survivor of domestic violence as they proceed with charges against her. Because of the Supreme Court’s 2005 decision in Roper v. Simmons that it is unconstitutional to execute a person for a crime committed under eighteen years of age, the death penalty is not on the table for Bresha. However, because prosecutors could decide to try her in adult court, it is a real possibility that she could be sentenced to life in prison.

A century after Virginia Christian’s advocates passionately and strategically petitioned the Commonwealth of Virginia for life imprisonment, Bresha’s advocates argue that no adolescent should spend life in prison—especially not a girl pushed toward drastic action by a lifetime of trauma and abuse. There is thankfully still time for the prosecutors of Trumbull County to give real weight to Bresha Meadows’ traumatic life history, and to the fact that it spans fifteen short years, as they decide what action to pursue.

Lindsey E. Jones is a PhD Candidate in History of Education at the University of Virginia’s Curry School of Education and a 2016-2018 Pre-doctoral Fellow at the Carter G. Woodson Institute for African-American and African Studies at the University of Virginia. Her dissertation project, “‘Not a Place of Punishment’: the Virginia Industrial School for Colored Girls, 1915-1940,” historicizes the education and incarceration of black girls by examining Virginia’s only reformatory for delinquent African American girls. Follow her on Twitter @noumenal_woman.

NOTES:

1. Kali N. Gross, “African American Women, Mass Incarceration, and the Politics of Protection,” Journal of American History 102, no.1 (2015), 25–33.

2. For a contemporary examination of black girls, interpersonal violence, and the carceral state, see Jody Miller, Getting Played: African American Girls, Urban Inequality, and Gendered Violence (New York: NYU Press, 2008).

3. Lashawn Harris, “The ‘Commonwealth of Virginia vs. Virginia Christian’: Southern Black Women, Crime & Punishment in Progressive Era Virginia,” Journal of Social History 47, no.4 (2014), 922–42.

4. See, for instance: Tera W. Hunter, To ’Joy My Freedom: Southern Black Women’s Lives and Labors after the Civil War (Cambridge, Mass.: Harvard University Press, 1997); Thavolia Glymph, Out of the House of Bondage: The Transformation of the Plantation Household (Cambridge: Cambridge University Press, 2003); Sarah Haley, “‘Like I Was a Man’: Chain Gangs, Gender, and the Domestic Carceral Sphere in Jim Crow Georgia,” Signs 39 (Autumn 2013).

5. Harris cites “a 1910 Virginia statue prohibiting death to ‘any child under seventeen years of age who is charged with any felony, and never having been heretofore convicted in any court of a misdemeanor’” (931).

Source: Black Girls, Domestic Violence, and the Limits of Self-Defense | Black Agenda Report

Prosecutors as the Most Powerful Actor in the Criminal Justice System φ Race, Racism and the Law

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Excerpted from: Angela J. Davis, In Search of Racial Justice: The Role of the Prosecutor, 16 New York University Journal of Legislation and Public Policy 821-851 (2013) (136 Footnotes)(Full Article)

 

The racial disparities in our criminal justice system are extraordinary and well-documented. In 1995, nearly one in three African American men between the ages of twenty and twenty-nine were under the supervision of the criminal justice system–either in jail, prison, on probation, or on parole. Today, one in every ten black Angela J Davismales in his thirties is in prison or jail on any given day. Over 60% of all prisoners in 2010 were Black or Latino. The disparities exist at every step of the criminal process, from arrest through sentencing.

Much has been written about why the American criminal justice system is so fraught with racial disparity. Some point to discriminatory *823 decision-making by criminal justice officials at each step of the process while others suggest that disproportionate offending is the cause. In fact, there are many complex reasons for this unfortunate phenomenon. Criminal justice officials–including police officers, prosecutors, judges, and corrections officials–make discretionary decisions that often have a racial impact. In addition, the socioeconomic causes of crime disproportionately affect people of color. The impact of the War on Drugs cannot be overstated, and there are undoubtedly many other factors that have contributed to the startling statistics and overwhelming evidence of racial disparity. Not surprisingly, as the causes of the racial disparities in our criminal justice system stem from many sources, so must the solutions.
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Prosecutors are the most powerful officials in the criminal justice system. They make the decisions that control the system, and they exercise almost boundless discretion in making those decisions.  Many argue that police officers are the most important officials in their role as the gatekeepers who bring individuals into the system. There is no doubt that police officers exercise broad discretion in deciding whether to stop and/or arrest individuals for criminal behavior. However, police officers only have the power to bring individuals to the courthouse door. It is the prosecutors whose decisions keep them there and firmly entrench them in the system–decisions that have life-changing consequences.

The most important prosecutorial decisions are the charging and plea bargaining decisions. Prosecutors control and almost predetermine the outcome of criminal cases through these two critical decisions. They decide whether to charge an individual with a crime and what the charge or charges should be, and they enjoy vast discretion in making this decision. Even if a prosecutor believes she can prove a defendant’s guilt beyond a reasonable doubt, she is not required to charge that individual. If she does decide to charge, she often has discretion to charge either a misdemeanor or felony. For example, if an individual is arrested with a large quantity of cocaine, the police officer might recommend that the person be charged with Possession with Intent to Distribute Cocaine–a felony that carries a mandatory minimum sentence. The prosecutor has a number of choices. She may decide to charge the person with the felony, but she also has the discretion to charge him with simple possession–a misdemeanor that may result in a probationary sentence with fewer collateral consequences. The prosecutor may also choose not to charge the person at *833 all. The charging decision is totally within the discretion of the prosecutor.

Prosecutors enjoy the same discretion in the plea-bargaining process. They are not required to offer the defendant a plea to a lesser offense, but if they do, they decide what that offer will be. Certainly a defendant may agree to plead guilty to a lesser offense if the prosecutor dismisses all other offenses, but the decision is up to the prosecutor. And with the existence of so many offenses that carry mandatory minimum sentences, the plea bargaining power has become even more important. Since going to trial always carries the risk of conviction, the only way a defendant can be assured that he will not be convicted of an offense carrying a mandatory minimum sentence is to plead guilty to a lesser offense. Ninety-five percent of all criminal cases are resolved by way of a plea. Prosecutors’ control of the charging and plea-bargaining decisions almost permits them to predetermine the outcome of most criminal cases.

Charging and plea-bargaining decisions have a tremendous impact on racial disparities in the criminal justice system. If a prosecutor charges an African American with a crime but chooses not to charge his similarly situated white counterpart, or chooses to charge the white counterpart with a less serious offense, she will create an unwarranted disparity. But the problem is a complex one. A prosecutor is rarely presented with two cases–one white defendant, one black–with exactly the same circumstances (same prior record, same facts, etc.) where she consciously chooses to treat the black defendant more harshly. She may unconsciously empathize with a white defendant and give him preferable treatment, or she may offer a white defendant better treatment for legitimate reasons that produce a racial impact.

Consider the case of a white defendant who is arrested for selling cocaine in his dorm room. The arresting officer recommends that he *834 be charged with distribution of cocaine–a felony offense with a five year mandatory minimum sentence. The defendant’s parents hire an attorney who tells the prosecutor that the defendant is suffering from a debilitating drug addiction and was selling drugs only to support his own addiction. The attorney indicates that the defendant has been accepted to a six-month program at a residential drug treatment facility. He also informs the prosecutor that the defendant is an honor student who planned to apply to law school, that he has never been arrested in his life, and that a felony conviction would ruin his career and his life. A prosecutor might legitimately offer such a defendant a plea to a misdemeanor offense, or even dismiss the case all together. One could see how a prosecutor might empathize with such a defendant, subconsciously seeing himself and perhaps remembering his own “youthful indiscretions.”

That same prosecutor might handle the case of a similarly situated black defendant quite differently. Consider the black defendant arrested for selling cocaine on the street corner in his neighborhood. The arresting office recommends the same charge–distribution of cocaine. This defendant is poor and represented by an overworked public defender. The public defender discovers that his client is addicted to cocaine and was selling the drug only to support his habit. The family cannot afford to pay for residential treatment and there are no free programs available. The defendant does not have a prior criminal record but is a high school dropout with no employment prospects. The public defender asks the prosecutor to consider dismissing the case, and the prosecutor declines.

The prosecutor’s decisions in these cases would produce a racial disparity, but were her decisions unfair or unjustified? Shouldn’t a prosecutor pursue an outcome that results in an alternative to incarceration, thereby saving scarce government resources, especially if she does not believe that the defendant poses a danger to the community? Is it the prosecutor’s fault that the black defendant could not afford to pay for a drug program and was neither employed nor in school? Yet the black defendant did not appear to be any more deserving of a prison term than the white defendant. The prosecutor may have had an unconscious bias towards the white defendant and against the black defendant, but how could that be proven? And even if it were true, would it matter, considering all the other factors?

If prosecutors charge African American and Latino defendants with crimes while neglecting to charge their similarly situated white counterparts, they may be engaging in race-based selective prosecution. *835 Race-based selective prosecution violates the Constitution, but proving it is difficult. As with racial profiling, the victim of selective prosecution must prove that the prosecutor intended to discriminate against him because of his race. The Court practically closed the door on all claims of race-based selective prosecution when it decided United States v. Armstrong. In Armstrong, the Court held that in order to get discovery to prove selective prosecution, the defendant must show that similarly situated whites could have been charged, but were not –an impossible showing for almost anyone.

The Supreme Court has consistently required proof of intentional discrimination in criminal cases, and the amount and type of proof necessary have made successful challenges extremely difficult, if not impossible. In McCleskey v. Kemp, Mr. McCleskey presented a sophisticated study of how the death penalty was implemented in the state of Georgia. The study, conducted by Professors David Baldus, Charles Pulaski, and George Woodworth (known as “the Baldus Study”) produced startling racial disparities in the implementation of the death penalty and concluded that black defendants who kill whites were more likely to receive a death sentence. The Court accepted the validity of the study and its findings, but nonetheless declined to reverse Mr. McCleskey’s death sentence. Because the study did not prove that the prosecutors in Mr. McCleskey’s case intended to discriminate against him because of his race, the Court rejected his claim.

The difficulty of proving intentional discrimination does not pose the most difficult challenge, since intentional discrimination is rarely the cause of racial disparity in today’s criminal justice system. Most racial disparities are caused and/or exacerbated by prosecutors’ race-neutral decisions which may be influenced by unconscious racism. *836 These race neutral decisions, even though unintentional, may have a racial impact.

Whether or not prosecutors intentionally or unconsciously discriminate against defendants of color in the charging and plea-bargaining processes, their decisions–even the race-neutral ones–may cause or exacerbate racial disparities. Their tremendous power and discretion is often exercised in ways that produce unintended and undesirable consequences. However, that same power and discretion can be used to remedy the problem. The next section will examine one possible solution.

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Racial disparity in the criminal justice system is a complex problem with many disparate causes. Its elimination will require change within and outside of the criminal justice system. The socio-economic causes of crime may never be totally eliminated. However, individuals in the criminal justice system can have an impact on the problem. Prosecutors are particularly suited to help eliminate racial disparities because of their power and discretion.

Prosecutors must not only be willing to replicate the Prosecution and Racial Justice Program, they must be willing to change their practices and policies in ways that will have a real impact. Sometimes these changes will involve abandoning traditional methods of decision-making to achieve fairness. For example, even though considering *851 a defendant’s prior record as a factor in the decision to charge is appropriate, if the existence of prior records is the main reason why otherwise similarly situated black defendants are being charged while whites are not, prosecutors should consider abandoning that factor. Public safety must remain the priority, but there are many defendants arrested for nonviolent offenses with criminal records of nonviolent offenses. Even if prosecutors focused on nonviolent offenses alone and abandoned or reduced reliance on traditional charging considerations in those cases, they could make a difference.

The Prosecution and Racial Justice Program is not a panacea, but it is one remedy that can make a difference. However, it can only work with the participation of chief prosecutors who are willing to make racial justice a priority. The prosecutors who have worked with PRJ have demonstrated that commitment. They took a chance that produced positive results in their offices and serve as examples for other prosecutors who seek to fulfill their duty to assure a fair and effective criminal justice system.

Angela J. Davis is a Professor of Law at American University Washington College of Law and the former director of the Public Defender Service for the District of Columbia.

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Race, Racism And The Law considers race, racism and racial distinctions in the law. It examines the role of domestic and international law in promoting and/or alleviating racism.