The Second Amendment’s Second-Class Citizens

REmembering Philando Castile

July 6, 2016, Philando Castile was murdered by a Falcon Heights cop in the passenger seat of a car, while his girlfriend and her 4 yr old daughter watched. worked in a school cafeteria for over 12 yrs where he served little kids and was beloved among his colleagues.

castille

The Second Amendment’s Second-Class Citizens

 
 

https://www.youtube.com/watch?time_continue=4&v=cQo-yYhExw0

On social-media, many are already asking why the Second Amendment did not protect Sterling and Castile, and why gun-rights advocates like the National Rifle Association are not speaking out on their behalf. In each case, there are complicated legal questions, and many of the details remain unclear, but it is true that gun-rights groups like the NRA and its allies have typically pushed for laws that would allow citizens broader freedom to bear arms than currently permitted. It is also the case that the interpretation of the Second Amendment has for decades been deeply intertwined with the ways the law protects—and more often fails to protect—African Americans in comparison with whites, a history that begins in earnest in the 1860s, flares up in the 1960s, and is again relevant today.

The Sterling case is the more complicated one. Sterling was a convicted felon, and thus probably was not legally permitted to have a gun. While Louisiana allows open carry of handguns for anyone legally allowed to possess one, concealed carry requires a permit, for which Sterling would have been ineligible. Sterling had allegedly been displaying the gun, which is the reason why police were called.

The crucial point is that the police couldn’t have known when they arrived on the scene whether Sterling’s gun was completely legal or not. An additional irony is that, according to Muflahi, Sterling had begun carrying the gun because he was concerned about his own safety—that is to say, for the very reasons that gun-rights advocates say citizens should be able to, and many argue should, carry guns.

The Castile case looks more straightforward, based on what’s known now. Assuming Castile’s permit was valid, he was placed in an impossible position by the officer. Unlike Sterling, who seems to have been resisting arrest (a fact that in no way justifies an extrajudicial execution by officers), Castile was attempting to comply with contradictory imperatives: first, the precautionary step of declaring the weapon to the officer; second, the officer’s request for his license and registration; and third, the officer’s command to freeze.*

Some activists contend that white men in the same situations would never have been shot. It’s an impossible counterfactual to prove, although there’s relevant circumstantial evidence, such as the fact that black men are much more likely to be shot by police than any other group. Raw Story rounds up stories of white people who pointed guns at police and were not shot. Castile’s shooting is reminiscent of a 2014 incident in which South Carolina State Trooper Sean Groubert pulled a black driver over in Columbia. Groubert asked the man, Levar Edward Jones, for his license and registration, but when the driver turned to get them, Groubert promptly shot him without warning. Groubert seems to have feared—however irrationally—for his safety when Jones reached into the car, but what was Jones supposed to do? He was complying with the officer’s instructions. (Groubert later pled guilty to assault and battery.)

The two shootings give a strong sense that the Second Amendment does not apply to black Americans in the same way it does to white Americans. Although liberals are loath to think of the right to bear arms as a civil right, it’s spelled out in the Bill of Rights. Like other civil rights, the nation and courts have interpreted it differently over time—as an individual right, and as a collective right. But however it’s been applied, African Americans have historically not enjoyed nearly the same protection as their white fellow citizens.

As Adam Winkler wrote in The Atlantic in 2011, one crucial testing ground for a personal right to bear arms came in the aftermath of the Civil War. Blacks in the South encountered a new landscape, one which they were ostensibly free but vulnerable and beset by white antagonists:

After losing the Civil War, Southern states quickly adopted the Black Codes, laws designed to reestablish white supremacy by dictating what the freedmen could and couldn’t do. One common provision barred blacks from possessing firearms. To enforce the gun ban, white men riding in posses began terrorizing black communities. In January 1866, Harper’s Weekly reported that in Mississippi, such groups had “seized every gun and pistol found in the hands of the (so called) freedmen” in parts of the state. The most infamous of these disarmament posses, of course, was the Ku Klux Klan.

In response, General Dan Sickles, who was in charge of Reconstruction in South Carolina, decreed that blacks could own guns. State officials ignored him, so Congress passed a law stating that ex-slaves possessed “full and equal benefit of all laws and proceedings concerning personal liberty … including the constitutional right to bear arms.” In the words of the Yale constitutional-law scholar Akhil Reed Amar, “Between 1775 and 1866 the poster boy of arms morphed from the Concord minuteman to the Carolina freedman.”

Black Americans again prominently asserted their right to bear arms during the 1960s. In 1964, Malcolm X was famously photographed holding a rifle as he looked out a window. The image was often misinterpreted as a statement of aggression, as though he was preparing a guerrilla assault. In fact, Malcolm was exercising his own right to own a gun for self-defense, concerned that members of the Nation of Islam—which he had recently deserted for Sunni orthodoxy—would try to kill him. (His fear was, of course, vindicated the following year, when Nation members did murder him.)

In 1967, Black Panthers began taking advantage of California laws that permitted open carry, walking the streets of Oakland armed to the teeth, citing threats of violence from white people and particularly white cops. When people were pulled over, Panthers would arrive on the scene—to ensure that justice was done, they argued, or to intimidate the cops, the cops contended. In response, Republican state Assemblyman Don Mulford introduced a bill to ban open carry. The Panthers then decided to go to the state capitol, heavily armed, to exercise their right.

As theater, it was an incredible gesture. As politics, it was a catastrophe. The sight of heavily armed black men brandishing rifles galvanized support for Mulford’s bill, which promptly passed and was signed into law by Governor Ronald Reagan. It set off a spree of gun-control laws that only began to be rolled back years later—leading to the current regime of permissive laws.

“The gun-control laws of the late 1960s, designed to restrict the use of guns by urban black leftist radicals, fueled the rise of the present-day gun-rights movement—one that, in an ironic reversal, is predominantly white, rural, and politically conservative,” Winkler wrote.

Signs of that shift are visible around the nation now. In Texas, gun owners (largely white) staged an open-carry rally on the capitol grounds in Austin in January, an echo of the Panthers’ rally in Sacramento. (Even some gun advocates looked askance at that move.) Meanwhile, the Panthers’ tactic of carrying guns and watching the police has an echo in the rapidly spreading practice of filming encounters with the police, just as happened in the Sterling and Castile shootings. Black Americans may not enjoy the full protection of the Second Amendment, but technology has offered a sort of alternative—one that may be less effective in preventing brutality in the moment, but has produced an outpouring of outrage.

One common thread through all of these cases is the constant threat of state violence against black Americans: from un-Reconstructed Southern officials; from California police; and today, from police around the country.

Gun advocates frequently argue that more guns, and more people carrying guns, produce a safer society. This, and the contrary claim that they undermine public safety, depend on statistics. But anecdotally, both Castile and Sterling represent cases in which carrying a gun not only failed to make the men safer, but in fact contributed to their deaths. The NRA has not made a public statement on either case, and a spokesman did not immediately reply to a request for comment.

In any case, the American approach to guns is, for the moment, stable. The courts, and particularly the Supreme Court, have inched toward much broader gun rights, including a suggestion of a personal right to bear arms. The death of Justice Antonin Scalia may, in the long term, produce a more liberal court, but that will require reversing years of precedents. In the meantime, spates of mass shootings and a slightly increase in violent crime have produced highly vocal calls for gun control, but there’s little reason to expect those efforts to succeed. To date, they have almost universally failed. In fact, the last few years have brought ever looser gun laws. Quick changes in gun laws, regardless of whether they’re desirable, are a remote possibility. As a result, the most relevant question right now is not whether gun laws should change, but whether existing gun laws apply equally to all Americans—and if not, why they don’t.

This article is part of our Next America: Criminal Justice project, which is supported by a grant from the John D. and Catherine T. MacArthur Foundation.

DAVID A. GRAHAM is a staff writer at The Atlantic, where he covers U.S. politics and global news.  

*This article originally stated that Castile had a legal obligation to declare his weapon to the officer. In fact, in Minnesota, holders of concealed carry permits need only declare their weapons when asked to do so by an officer. We regret the error.

 

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

 

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.
* * *

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.

* * *

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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The Business of Mass Incarceration Chris Hedges

The Business of Mass Incarceration

Posted on Jul 28, 2013
Illustration by Mr. Fish

By Chris Hedges

Debbie Bourne, 45, was at her apartment in the Liberty Village housing projects in Plainfield, N.J., on the afternoon of April 30 when police banged on the door and pushed their way inside. The officers ordered her, her daughter, 14, and her son, 22, who suffers from autism, to sit down and not move and then began ransacking the home. Bourne’s husband, from whom she was estranged and who was in the process of moving out, was the target of the police, who suspected him of dealing cocaine. As it turned out, the raid would cast a deep shadow over the lives of three innocents—Bourne and her children.

* * * The murder of a teenage boy by an armed vigilante, George Zimmerman, is only one crime set within a legal and penal system that has criminalized poverty. Poor people, especially those of color, are worth nothing to corporations and private contractors if they are on the street. In jails and prisons, however, they each can generate corporate revenues of $30,000 to $40,000 a year. This use of the bodies of the poor to make money for corporations fuels the system of neoslavery that defines our prison system.

Chris Hedges will be among those fasting Wednesday in solidarity with the California prison hunger strike. For information about how to become involved in this week’s protest,click here.

Prisoners often work inside jails and prisons for nothing or at most earn a dollar an hour. The court system has been gutted to deny the poor adequate legal representation. Draconian drug laws send nonviolent offenders to jail for staggering periods of time. Our prisons routinely use solitary confinement, forms of humiliation and physical abuse to keep prisoners broken and compliant, methods that international human rights organizations have long defined as torture. Individuals and corporations that profit from prisons in the United States perpetuate a form of neoslavery. The ongoing hunger strike by inmates in the California prison system is a slave revolt, one that we must encourage and support. The fate of the poor under our corporate state will, if we remain indifferent and passive, become our own fate. This is why on Wednesday I will join prison rights activists, including Cornel West and Michael Moore, in a one-day fast in solidarity with the hunger strike in the California prison system.

In poor communities where there are few jobs, little or no vocational training, a dearth of educational opportunities and a lack of support structures there are, by design, high rates of recidivism—the engine of the prison-industrial complex. There are tens of millions of poor people for whom this country is nothing more than a vast, extended penal colony. Gun possession is largely criminalized for poor people of color while vigilante thugs, nearly always white, swagger through communities with loaded weapons. There will never be serious gun control in the United States. Most white people know what their race has done to black people for centuries. They know that those trapped today in urban ghettos, what Malcolm X called our internal colonies, endure neglect, poverty, violence and deprivation. Most whites are terrified that African-Americans will one day attempt to defend themselves or seek vengeance. Scratch the surface of survivalist groups and you uncover frightened white supremacists.

The failure on the part of the white liberal class to decry the exploding mass incarceration of the poor, and especially of African-Americans, means that as our empire deteriorates more and more whites will end up in prison alongside those we have condemned because of our indifference. And the mounting abuse of the poor is fueling an inchoate rage that will eventually lead to civil unrest.

“Again I say that each and every Negro, during the last 300 years, possesses from that heritage a greater burden of hate for America than they themselves know,”Richard Wright wrote. “Perhaps it is well that Negroes try to be as unintellectual as possible, for if they ever started really thinking about what happened to them they’d go wild. And perhaps that is the secret of whites who want to believe that Negroes have no memory; for if they thought that Negroes remembered they would start out to shoot them all in sheer self-defense.”

The United States has spent $300 billion since 1980 to expand its prison system. We imprison 2.2 million people, 25 percent of the world’s prison population. For every 100,000 adults in this country there are 742 behind bars. Five million are on parole. Only 30 to 40 percent are white.

The intrusion of corporations and private contractors into the prison system is a legacy of the Clinton administration. President Bill Clinton’s omnibus crime bill provided $30 billion to expand the prison system, including $10 billion to build prisons. The bill expanded from two to 58 the number of federal crimes for which the death penalty can be administered. It eliminated a ban on the execution of the mentally impaired. The bill gave us the “three-strikes” laws that mandate life sentences for anyone convicted of three “violent” felonies. It set up the tracking of sex offenders. It allowed the courts to try children as young as 13 as adults. It created special courts to deport noncitizens alleged to be “engaged in terrorist activity” and authorized the use of secret evidence. The prison population under Clinton swelled from 1.4 million to 2 million.

Incarceration has become a very lucrative business for an array of private contractors, most of whom send lobbyists to Washington to make sure the laws and legislation continue to funnel a steady supply of poor people into the prison complex. These private contractors, taking public money, build the prisons, provide food service, hire guards and run and administer detention facilities. It is imperative to their profits that there be a steady supply of new bodies.

* * *Bourne has worked for 13 years as a locker room assistant in the Plainfield school system. She works five hours a day. She does not have medical benefits. She struggles to take care of a daughter in fragile health and a disabled son.

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