Tag Archives: Racism and the Law

OCG This Week ::: “White Collar Crime: How Whiteness Presides” ::: Professor Jennifer Taub :: Author, “Big Dirty Money”

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“White Collar Crime: How Whiteness Presides”

“Big Dirty Money”, Author, Professor Jennifer Taub

Professor Jennifer Taub, Esq.

  January 9, 2021 :: 10 pm EST

Join us LIVE: http://bit.ly/OCGTruthTalk

In a controversial 1975 article, titled “White Racism, Black Crime, and American Justice,” criminologist Robert Staples argued that discrimination pervades the justice system. He said the legal system was made by white men to protect white interests and keep Blacks down. (At the time this was received as “outlandish and untrue”). Staples charged that the system was characterized by second-rate legal help for Black defendants, biased jurors, and judges who discriminate in sentencing. No matter, study after study demonstrates how extreme racial disparities address for Blacks in the judicial system, no matter the income strata or available resources.

Unwarranted disparity is defined as different treatment of individual offenders who are similar in relevant ways, or similar treatment of individual offenders who differ in characteristics that are relevant to the purposes of charging and sentencing. Whiteness is honored, it is protected and it blinds much of the judicial process. We can no longer deny, racial disparities exist because the system protects whiteness for the most part. It is clear that in sentencing especially, “departure” from the guidelines is reserved for mostly whites, and rarely extended to Blacks. Fair sentencing is individualized sentencing and it is mostly decided by people who value whiteness, having a value system of what crimes are punishable with distinct stereotyping of criminals.

Our guest, Professor Jennifer Taub, in her book, “Big Dirty Money” suggests we first attempt to measure white-collar crime as a whole. Then we need to measure the harm to victims in terms that go beyond the economic costs. She points out that “The wealthy have the resources either to exert political influence or become lawmakers themselves”. But Taub explicitly and persuasively places the breakdown of enforcement and accountability in the context of money and class.

What happens when a group of wealthy bankers fraudulently bring foreclosures on an entire class of people, as they did after the crash of 2008? Unlike a loss of, say, $210, the loss of a person’s home affects their life and well-being in ways that cannot be assigned a dollar amount. Thousands of people have spent the years since the recession uprooted from their communities. Taub posits that “the elite class had the power to define what was criminal.”

What happens when the President of the United States pardons criminals who have violated security, foreign interference, sedition, and treason laws? Trump is a stark illustration of why so few wealthy malefactors are held accountable. Like other members of the .01 percent, he can act with seeming impunity, able to buy or influence his way out of trouble. He empathizes with rich people who run afoul of the law. He minimizes their guilt, suggesting white-collar crimes aren’t really crimes, especially when the accused are white men, as the vast majority of all rich white-collar criminals are. Yet Trump is a symptom, not the cause. What happens when white politicians create laws to intentionally suppress and violate voters? How can we measure the social and political costs of mass dispossession because the defendant and violator are protected by a cloud of whiteness?

We will talk with Professor Taub who clearly articulates in her book, the cause and effect of white-collar crime “blinded by the whiteness” that plagues the judicial system. Leaving white-crime bosses to their devices operated by their money and “white card”.

ABOUT Jennifer Taub

Jennifer Taub is a legal scholar and advocate, devoted to making complex business law topics engaging inside and outside of the classroom. Her research and writing focuses on corporate governance, banking and financial market regulation, and white collar crime. Similarly, her advocacy centers on “follow the money” matters  –– promoting transparency and opposing corruption.

Her new book, Big Dirty Money: The Shocking Injustice and Unseen Cost of White Collar Crime (Viking) will be published on September 29, 2020. Taub was a co-founder and organizer of the April 15, 2017 Tax March where more than 120,000 people gathered in cities nationwide to demand President Donald Trump release his tax returns. She is a professor of law at the Western New England University School of Law where she teaches Civil Procedure, White Collar Crime, and other business and commercial law courses, and was the Bruce W. Nichols Visiting Professor of Law at Harvard Law School during the fall 2019 semester. She formerly was a professor at Vermont Law School.

An authority on the 2008 mortgage meltdown and related financial crisis, Taub is also an emerging expert in white collar crime. In addition to Big Dirty Money, she is co-author with the late Kathleen Brickey of Corporate and White Collar Crime: Cases and Materials, 6th edition (Wolters Kluwer 2017). Relatedly, she has appeared on cable news programs including MSNBC’s Morning Joe and CNN Newsroom to discuss the Special Counsel investigation into links between Russia and the Trump presidential campaign.

In the area of banking and financial market regulation, Taub’s book Other People’s Houses: How Decades of Bailouts, Captive Regulators, and Toxic Bankers Made Home Mortgages a Thrilling Business was published in May 2014 by Yale University Press. Recognized as accessible and informative, OPH was honored by the Massachusetts Center for the Book as one of the 2015 finalists in the nonfiction category. Other People’s Houses was favorably mentioned by Nobel Laureate, Robert Shiller in his 2015 edition of Irrational Exuberance. Taub testified as an expert before the United States Senate Banking Committee and a United States House Financial Services Subcommittee. She also co-organized a conference and co-lead a panel discussion at the Financial Stability Law Workshop at the U.S. Treasury Department, hosted by the Office of Financial Research.

In addition to Other People’s Houses, Taub has written extensively on the financial crisis. Her publications include “The Sophisticated Investor and the Global Financial Crisis” in the peer-reviewed Corporate Governance Failures (UPenn Press, 2011) and a case study on AIG in Robert A. G. Monks and Nell Minow’s fifth edition of Corporate Governance (Wiley, 2011). In response to Roberta Romano, she presented and wrote “Regulating in the Light: Harnessing Political Entrepreneurs’ Energy for Post-Crisis Sunlight Hearings” (St. Thomas L. Rev. 2015). Additional works include the chapter “Delay, Dilutions, and Delusions: Implementing the Dodd-Frank Act” in Restoring Shared Prosperity (2013) and “What We Don’t Talk About When We Talk About Banking,” in the Handbook on the Political Economy of the Financial Crisis (Oxford, 2012). She wrote entries on “Shadow Banking” and “Financial Deregulation” for the Oxford Encyclopedia of American Business, Labor and Economic History (Oxford, 2013) and the chapter “Great Expectations for the Office of Financial Research,” in Will it Work? How Will We Know? The Future of Financial Reform (2010). In addition, she has published Reforming the Banks for Good in Dissent (2014). Her article, “The Subprime Specter Returns: High Finance and the Growth of High-Risk Consumer Debt,” was published in the New Labor Forum (2015). And, she recently wrote a book chapter on “New Hopes and Hazards for Social Investment Crowdfunding” in Law and Policy for a New Economy (Edward Elgar, 2017).

Taub’s corporate governance work often focuses on the role of institutional investors, including mutual funds. Her article “Able but Not Willing: The Failure of Mutual Fund Advisers to Advocate for Shareholders’ Rights,” published in the Journal of Corporation Law (2009) was presented at a conference jointly sponsored by the Millstein Center for Corporate Governance and the Oxford Said Business School. Her article “Managers in the Middle: Seeing and Sanctioning Corporate Political Spending after Citizens United” was presented at the Brennan Center for Justice at NYU and later published in the NYU Journal of Legislation and Public Policy (2012). Taub’s article, “Is Hobby Lobby a Tool for Limiting Corporate Constitutional Rights,” was presented at Harvard Law School and later published in a symposium issue of Constitutional Commentary in 2015 on Money, Politics, Corporations, and the Constitution (2015).

Taub has also ventured into the area of legal education and pedagogy. This includes her article “Unpopular Contracts and Why They Matter: Burying Langdell and Enlivening Students,” published in the Washington Law Review (2013). She is a co-author with Martha McCluskey and Frank Pasquale of “Law and Economics: Contemporary Approaches,” published in Yale Law & Policy Review (2016). With McCluskey and Pasquale, Taub is a co-founder of APPEAL (the Association for the Promotion of Political Economy and the Law), a research network linking economists, legal scholars, and policy makers concerned with inequality and instability who view markets and the government as mutually constituted. She has also developed a model syllabus for course on Financial Stability.

In 2017, Taub received the Vermont Law School, Women’s Law Association Phenomenal Woman Award in the faculty category. She also served as chair of the Section on Financial Institutions and Consumer Financial Services for the 2017 AALS annual meeting. Prior to joining academia, Taub was an associate general counsel with Fidelity Investments. She received her BA degree, cum laude, from Yale University, with distinction in the English major, and her JD, cum laude, from Harvard Law School where she was the Recent Developments Editor at the Harvard Women’s Law Journal. She was a visiting professor at the University of Illinois College of Law for a short course in 2015 and a visiting fellow at the Yale School of Management during the 2016 spring semester. She was a visiting professor at the University of Connecticut School of Law during the 2019 spring semester.

Taub has written pieces for a variety of platforms including The Washington Post, CNN opinion page, Slate, the New York Times Dealbook, Dame Magazine, The Baseline Scenario, Race to the Bottom, Pareto Commons, The Conglomerate, and Concurring Opinions.

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The Implied Promise of a Guaranteed Education in the United States and How the Failure to Deliver it Equitably Perpetuates Generational Poverty – Race, Racism and the Law

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Excerpted from: Anjaleck Flowers, The Implied Promise of a Guaranteed Education in the United States and How the Failure to Deliver it Equitably Perpetuates Generational Poverty, 45 Mitchell Hamline Law Review 1 (2019) (284 Footnotes) (Full Document)

AnjaleckFlowersThe United States is known as a country where anything is possible. Immigrants, foreigners, and citizens alike know what it means when someone says, “the American Dream”–that anything is achievable in the United States and that everyone has a chance to achieve their financial goals, regardless of their socioeconomic status. Abraham Lincoln, the sixteenth president of the United States and a former attorney, espoused this belief in his speech on March 6, 1860:

I don’t believe in a law to prevent a man from getting rich; it would do more harm than good. So while we do not propose any war upon capital, we do wish to allow the humblest man an equal chance to get rich with everybody else. When one starts poor, as most do in the race of life, free society is such that he knows he can better his condition; he knows that there is no fixed condition of labor, for his whole life. I am not ashamed to confess that twenty five [sic] years ago I was a hired laborer, mauling rails, at work on a flat-boat–just what might happen to any poor man’s son! I want every man to have the chance–and I believe a black man is entitled to it–in which he can better his condition–when he may look forward and hope to be a hired laborer this year and the next, work for himself afterward, and finally to hire men to work for him! That is the true system. Lincoln’s speech shows that the American dream should be a possibility for every person in the United States. Although this article focuses on impoverished individuals and the hardships in changing their predictable outcomes, one cannot discuss poverty without factoring in the element of race. Unfortunately, poverty and race often go hand in hand. This paper will also touch on how impoverished persons with disabilities– particularly those who are minorities–face challenges in breaking the chains of generational poverty under the United States’ current laws and unfunded educational system. These mostly invisible barriers impact impoverished students as early as preschool, in ways that affect these students’ pipelines to college opportunities and overall career earnings.

This article will show that although there is no constitutional right to education at the federal level, all states have mandated compulsory education for children. The Fourteenth Amendment and case law further support the notion that the United States has promised and expects states to educate children in an equitable manner. The United States Supreme Court came very close to declaring that education is a right in Brown v. Board of Education by stating that “[s]uch an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms.” Unfortunately, United States laws and policy have not financially and explicitly supported mandates under the law. Opportunity and education gaps for impoverished students exist at astounding rates in comparison to their non-impoverished peers. Laws, policy, resources–and an inquiry into how U.S. society views the idea of providing a thorough, well-rounded, and equitable education for all–can deliver the necessary changes to reduce the gaps. These factors have the potential to create pathways for every person to realistically have an opportunity to change their financial trajectory in life, regardless of where that person’s financial journey at birth begins.

This article will also examine the history of compulsory education law and share data that reveals educational inequities relating to poverty and inadequate resources necessary to fulfill the educational obligations under the law. Finally, this article will share the research-based practical solutions shown to help reduce the implications of adverse financial outcomes of impoverished students–solutions that provide alternatives to continuing the status quo of the current U.S. education system.. .]

Closing the achievement and financial gaps ultimately helps students in poverty–including minority students and students with disabilities–to end generational poverty. Providing these students with resources to get a quality education will help them build strong financial futures. Supporting future generations of students helps strengthen the nation in its entirety. As stated in Brown v. Board of Education,“[i]n these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.” This education must be one of quality, with standards of adequacy and minimum levels of achievement. Without education, the cycle of generational poverty simply repeats and perpetuates. Education must be the disrupter to interrupt and stop the pervasive cycle of financial disparity.

The income and achievement gaps are also signs of a bigger impact on quality of life. Sufficient and equitable education is a tool that can help everyone achieve a better quality of life. The U.S. education system may not be intentionally causing these disparities, but the U.S. education system must be intentional about bringing these disparities to an end.

Anjie Flowers currently works as the Deputy General Counsel for Minneapolis Public Schools.

Source: The Implied Promise of a Guaranteed Education in the United States and How the Failure to Deliver it Equitably Perpetuates Generational Poverty – Race, Racism and the Law

Embracing the Courageous Four:Radically Reconceiving and Reconstructing America

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“Trump’s attacks on these four courageous, committed, knowledgeable and defiant congresswomen of color, not only reflect his commitment to views, policies and practices that are racist, anti-people of color; xenophobic, anti-immigrant and those different; sexist, anti-women; and opportunistic, ever self-promoting and peacocking.

These attacks also reflect his reactionary politics and conception of America. It is a politics of White supremacy; predatory capitalism at home and abroad; warmongering; privatization of public wealth and space; and peddling a personalized patriotism based on his astonishing ignorance, multiple insecurities and vulgar interests.We must constantly expose, criticize and condemn the monster side of America we call Trump and his supporters and enablers, but we must not over focus on him and under focus on the rising movement to actively resist him in Congress, as represented by the initiatives of the courageous four and also in our various communities across the country. To make this mistake would be like over focusing on a devast[at]ing fire and the havoc it is wreaking and under focusing on the response and responders needed to control and extinguish it.

Audacious and defiant, these four progressive congresswomen resist and reject Trump’s attempt to impose his deformed and dishonest reactionary conception of patriotism and politics. Indeed, they cannot morally and will not politically accept Trump’s packaged and constantly peddled racist patriotic politics of vicious and varied forms of oppression: apartheid walls here and abroad; corruption and coercion; the savaging of immigrants and the abuse and separation of children from their families; anti-labor and anti-union policies; preference for the rich at the expense and injury of the poor; racial and religious restrictions and preferences; denial of climate change; and his obsessive and infantile attempt to rival and erase everything considered an Obama achievement.

Source: Embracing the Courageous Four:Radically Reconceiving and Reconstructing America

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.