Contact Your U.S. Senators to Support Kristen Clark to Lead Civil Rights Division of the U.S. Department of Justice

Call Your U.S. Senators This Week

Why Kristen Clarke?

Experienced

Courageous

Fair-Minded

Kristen Clarke, President Joe Biden’s nominee to be the Assistant Attorney General for the Civil Rights Division, has spent her career fighting for justice for people facing discrimination. Kristen Clarke is the civil rights champion we need at the Department of Justice. It’s time to make her fight our fight.  Attorney General Merrick Garland needs Kristen's help to fight discrimination and excessive use of force by police. 

Kristen’s Civil Rights Record is Unimpeachable

Kristen Clarke started her career at the very department she’s now been nominated to lead: the Civil Rights Division at the Department of Justice, where she prosecuted civil rights violations and investigated police misconduct, hate crimes, and human trafficking. Later, she led the Civil Rights Bureau in the New York Attorney General’s office, where she continued her work fighting for people who were being discriminated against.

 

Changing the World

June 2, 2020

Johnnetta Betsch Cole, Ph.D. and Janice L. Mathis, Esq.

George Floyd’s six-year-old daughter Gianna looked on quizzically while her mother gave a heart wrenching description of what the death of her father would mean throughout the child’s life.  Roxie Washington, Gianna’s mother, described the future.  He won’t be there to soothe hurts, to answer hard questions, to host the graduation party or the wedding reception.  The scene was all the more painful because Mr. Floyd did nothing sufficient to deprive him of the rights and responsibilities of fatherhood, which Ms. Washington said he relished.  Let’s say he was in possession of a counterfeit bill – the punishment for that crime is not execution without a trial.

Our nation and indeed the world are gripped by the story of Houston native George Floyd, who moved to Minneapolis looking for better job opportunities. Piled on top of the pandemic, 40,000,000 people unemployed, Black people dying at three times the rate of White people, the murder of Breonna Taylor, a 26-year-old African American woman in her own home and the hunting down of Ahmaud Arbery, the execution of George Floyd lit a keg of powder that was overdue to explode.

As a women’s organization, NCNW and our allies are particularly sickened and saddened by the growing number of Black women who lose their lives in police custody.  Breonna Taylor was killed in her own home, Tiara Thomas was killed by the police officer who fathered three of her children, Sandra Bland is alleged to have hung herself after being arrested on a traffic charge,  Natasha McKenna, who had schizophrenia, was killed with a stun gun when she “refused to comply.”  Although no unarmed Black person is exempt from excessive use of force, it is shameful that the death of an unarmed Black woman just does not receive the same attention from the public, the police or the media.

Eight days of global protests have so far proven insufficient to exhaust the rage so many of us are feeling.. global protests haveso And so far, the evidence suggests that rage is the right response.  The dueling autopsy reports do nothing to dispel the horror of Derrick Chauvin’s knee and body weight pressed onto George Floyd’s neck, but the preliminary reports confirm the commonsense conclusion that the cause of his death was homicide.  

Peaceful protests from New York to San Francisco were marred by looting and intentionally set fires, threatening to detract attention from the issue at the core of our pain – race based bias against African Americans by law enforcement and in virtually every other human endeavor. It is heartening to see veteran civil rights activists, basketball stars and peaceful protestors calling out looters with phrases like, “that’s not why we are here.”

Now that Minnesota Attorney General Keith Ellison has taken over the prosecution, the charges against Chauvin have been upgraded to 2nd degree murder (as opposed to the awkwardly conceived 3rd degree charge that requires no intent.)  And the other three officers “complicit” in Floyd’s death are under arrest and criminally charged with aiding and abetting murder.

Meanwhile, the Minneapolis Police Department will undergo an investigation of any patterns and practices of abuse.  Had we not scrapped President Obama’s 21st Century Policing Policy, George Floyd might still be alive.  Perhaps if Minneapolis had been subject to a rigorous pattern or practice investigation, no officer would have dared to brutalize Mr. Floyd.  Hindsight is 2020. 

Despite the rage and pain this incident has caused, we must look forward.  It is good to read the many statements being published by corporate, and non-profit organizations that are declaring that Black lives matter. And it is good to see Black and White people championing the same cause, shoulder to shoulder.  But as we know so well, these declarations and marching together in protest must be reinforced with sustained actions that call for the kinds of legal, policy and everyday changes in people’s behavior that will genuinely attack the root causes of systemic racism.

We are cautiously optimistic that finally, our nation might begin not only to speak the words but also to engage in the countless actions that might finally exorcise the devil of racism that has eaten at the soul of America from before its inception.  It is good to hear calls for the “good people” to stand up and speak out.  It was good to see clergy, including Bishop Mariann Budde say. “we need moral leadership.”  It is good to see chiefs of police on bended knee next to protestors.  (We owe Colin Kaepernick an apology.  We should all have been taking a knee with him.) It will be far better if we take that outrage to the ballot box and insist on the changes we have needed and deserved for so long. 

We must insist that the courts, the Congress and the state legislatures of our great nation curtail qualified immunity, a legal theory that forms the thick blanket of legal protection that shields  government officials from prosecution for their criminal actions. We must hear women’s voices with the same clarity and urgency that we hear men.  We must also insist that prospective police officers undergo psychological evaluation to weed out unreconstructed racists before they can be sworn onto any force.  And there must be implicit bias training for those who are unconscious that they are the beneficiaries of white privilege.  There must be an accurate national data base of excessive force complaints so that no police department inadvertently hires a candidate against whom multiple complaints of brutality have been proven.  Officers who know about illegal deprivation of civil and human rights must be encouraged to freely report what they see and what they know about fellow officers, without fear of reprisal.  And there must be truly independent citizen review committees empowered to protect the communities they live in.  We are not naïve.  Assuring justice in criminal investigations and prosecutions is a gargantuan task. But if we persevere and if we put human rights above political expediency and tribalism, love above hate, we may one day join with Gianna in saying that her daddy did not die in vain, for he truly changed the world.

Congressman Hank Johnson and Mereda Davis Johnson, Esq. Accept Torch Bearer Award from Rev. Jackson

The Real State of the Union

Lincoln’s great formula for successful government requires the participation of us all.  You can’t have government of the people, and for the people unless there is a healthy contribution by the people.  Too often, we want government of the people, for the people, but we want to skip over the by the people clause. 

I am an optimist and a liberal (which is the same thing, in a way) and so I believe that the American people have the final say about our country’s public policy.  For example, the people spoke and Social Security was not privatized during the Bush administration.  The people spoke against the government shutdown and the GOP voted this year a clean bill to raise the debt limit.  The people spoke and the Voting Rights Act was reauthorized in 2006 and there is bipartisan support for restoring Section IV of the VRA in Congress today.  The people spoke and the crack-powder disparity in criminal sentencing has been ameliorated to some degree.  The people are speaking and marriage equality is becoming the law of the land.  One of America’s great virtues is that when the people’s voices are loud and clear, elected officials respond.   

Elected officials respond to donations, but they also respond to polling results. 

Suppose –

1.     The Census Bureau reported recently that 30.4 percent of people over age 25 nationally hold at least a bachelor’s degree, and 10.9 percent hold a graduate degree, up from 26.2 percent and 8.7 percent 10 years ago. While that's the highest college graduation level ever for American workers, it shows that almost 70% of the workforce doesn't have a degree beyond high school.

Suppose we decided that every high school graduate who wanted further study and was capable of doing the work could receive a public university degree tuition free.  Suppose the lottery scholarships were need-based instead of merit-based only.  Suppose any college grad could discharge his/her student loans by doing national service. 

2.    The health care and social assistance sector is projected to grow at an annual rate of 2.6 percent, adding 5.0 million jobs between 2012 and 2022. This accounts for nearly one-third of the total projected increase in jobs. The growth reflects, in part, the demand for healthcare workers to address the needs of an aging population.   

According to the Census Bureau, five of the top ten best paying jobs that require an associate degree, rather than a four year college degree, are in the allied health sciences.  Web developer, electrician, skincare specialist and plumber, automobile body repairer, bookkeeper, communications equipment mechanic, electrician, glazier, tower technician, air traffic controller all pay better than a living wage, without the requirement of a four-year degree. 

Suppose we invested in the education or training of any child who wants to study a health related profession, or learn skills associated with health care delivery.  Suppose that anyone who wants to study health sciences or learn a skilled trade  in the U.S. could get a tuition free associate degree?  We could increase the number of health providers, increase wages for lots of workers, improve access to health care for millions of new patients under the affordable care act; remove one objection to the affordable care act. That investment will pay for itself in a decade and lay a solid foundation for economic growth for decades to come.  It will also alleviate poverty, address income inequality with jobs that are not easily outsourced.  

3.    Suppose Georgia and the other GOP states agreed to expand Medicaid to cover the working poor?  57% of Georgians think we should do it.  69% of metro Atlantans think we should.  71% of those earning less than 50k think we should expand Medicaid.  62%of those between 18 and 39 think we should.  

4.    Suppose there was an infrastructure bank making low-interest long-term loans to cities and other areas for infrastructure improvements like commuter rail and a dedicated municipal gas tax to pay for it like Sacramento’s? 

5.    Suppose Atlanta and other densely populated areas had robust regional transportation systems.  During the storm three weeks ago, I received a FB post from a woman who detailed how Alpharetta looked like a skating rink but a Marta driver got her to the train station and the rest of her commute went “without a hitch.” 

6.    Suppose homeowners whose homes are under water, or who lost their homes due to a provable hardship like illness, death of a spouse or loss of a job, could get a portion of the lost equity in their homes from the fines being paid by banks, or the loans restructured to reflect the current value of the homes.  Had we done this years ago, we might have avoided the mass foreclosures, blight and declining tax revenues they caused. 

7.    Charlie Rose interviewed U.S. Secretary of the Treasury Jack Lew Thursday night.  He said China needs more consumer demand and a stronger safety net to keep the economy healthy.  What’s good for China is good for the U.S.  Suppose we finally abandoned the myth of trickle-down economics and embraced demand side economics.  The less money you make, the more likely you are to put most of it back into the economy, demanding cars, refrigerators, houses and tuition. 

8.    Suppose we considered high quality education and health care as elements of U.S. citizenship instead of privileges.   

9.    Suppose there was a national increase in the minimum wage so that anyone who worked full time could support themselves and not live in poverty.   

10.                    Suppose we decided to enact national service so that the military was not a place for youngsters with fewer options or family traditions of military service, but a responsibility shared by all families regardless of income and connections.  Suppose instead of hiring private contractors like Halliburton and Fluor Daniel, all young people had to serve two years in national service as part of being Americans.   Perhaps we would value peace more and romanticize military action less.

11.                    Suppose there was an active and persistent national conversation about budget priorities.  We have ended the War in Iraq and we are winding down the war in Afghanistan.  Suppose we insisted on a peace dividend, with real cuts to military spending, as opposed to merely slowing down the growth of the military industrial complex. 

But good government is not merely a matter of good jobs and sound economic policies.  Economic stability is built on a foundation of shared values and respect for individual liberties. 

12.                     Jimmy Carter once said that he could not monitor U.S. elections in the same way he monitors elections around the world because the U.S. has no central election authority and no uniform national election standards.   

Suppose instead of cutting back polling places and cutting back on early voting we encouraged everyone to vote; made it part of our national responsibility; established same day onsite registration nationally; taught the voting rights movement in civics and history classes using documentaries like the one on Mississippi’s sovereignty commission that aired on PBS the other night. 

13.                      The single biggest threat to one person/one vote in the U.S. is Citizens United.  But polls suggest that 80 percent of the American people oppose Citizens United, including 65 percent who "strongly" oppose it. If citizens are prepared to make this a "make or break" issue for politicians of both political parties, then adoption of a constitutional amendment seems at least plausible.

But what should such a constitutional amendment say? Superficial slogans like "money is not speech" or "corporations are not people" will not suffice. Can the government forbid you from using money to buy books? Can it prohibit the New York Times (a corporation) from publishing? Slogans may be good rallying cries, but they do not make good law.  

If I were to propose a constitutional amendment, here's what I would suggest:

"In order to ensure a fair and well-functioning electoral process, Congress and the States shall have the authority reasonably to regulate political expenditures and contributions. 

14.                     "In 2005, the United Nations recommended to the United States that it “strengthen its efforts to combat racial profiling at the federal and state levels.”  In 2013, the U.S. State Department finally responded in part by saying, “…the United States recognizes that racial and ethnic disparities continue to exist…Statistics indicate the need …for continued vigilance …in pursuing the goal of equality.”   

Suppose racial profiling was illegal in all 50 states and we kept statistics on who gets stopped and why, to make sure the rules against profiling were not being circumvented.  Police would have a disincentive for making race-based traffic stops, leaving more people with clean records and easier employment options. 

15.                    Suppose in every state, you could vote if you are no longer on probation or parole and after five years of crime-free unsupervised living, your criminal history was wiped clean automatically for purposes of credit and unemployment?  Suppose we permitted teenagers to pre-register to vote while still in high school without the distractions of college or jobs?  FL does and NC did, until the GOP takeover. 

16.                    Suppose the Congress adopted the recommendations in WAND’s letter   supporting ongoing diplomatic efforts between world powers and Iran over Iran’s nuclear program.

17.                    Suppose the U.S. left Iran, Iraq and Afghanistan and joined the world majority of 140 nations including the entire European Union, Turkey, Armenia, Honduras, Iceland and South Africa other nations in outlawing the death penalty.  What signal would it send to young Americans about patriotism? 

Part of being a liberal is a point of view that there is something we can do.  Whatever your political philosophy - whether you believe in Paul’s faith, hope and love; or you prefer Oliver Wendell Holmes’ admonition that the life of the law has not been logic – that the law is more about the felt necessities of the times, or you believe in Dr. King’s moral arc of the universe, what is required for a more just, verdant and peaceful world is action.  Faith without work is dead.  We must make our necessities felt.  The moral arc leans toward justice when people of good conscience bend it to their will. 

 

Stand Your Ground Against Shoot First, Think Later Laws

More guns means more deaths from guns.  Since Georgia enacted the stand your ground law in 2006, justifiable homicides have doubled in the state, despite an overall decline in all homicides.  SYG encourages vigilantism and makes us less safe. 

Kendrick Johnson Probe Expands

December 21, 2013

Subpoena issued in KJ case

Hard drives for school surveillance videos sought by U.S. Attorney

Adam Floyd The Valdosta Daily Times The Valdosta Daily Times Sat Dec 21, 2013, 06:00 AM EST

VALDOSTA — U.S. Attorney Michael Moore has issued a subpoena for the hard drives containing the original Jan. 10-11 surveillance videos of the old gym in Lowndes High School where Kendrick Johnson was found lifeless in a rolled-up exercise mat.

Moore began his investigation into 17-year-old Johnson’s death in October after his family and others questioned the conclusion of the sheriff’s office and the Georgia Bureau of Investigation that Kendrick died when he became trapped upside down in the rolled, upright gym mat while reaching for an athletic shoe.

The Johnson family said it suspects he was the victim of foul play and that they do not intend to rest until the complete truth of what happened comes out.

Moore has been reviewing evidence collected at the time of Johnson’s death, including copies of videos from cameras showing the youth entering the old gym at mid-day on Jan. 10, jogging briefly inside the gym afterwards and then no other video of him until 24 hours later when he was carted out of the gym in a body bag.

There were questions about gaps in the copied videos that likely caused Moore to issue the subpoena for the original hard drives from the high school’s surveillance cameras.

The Johnson family had sought access to the hard drives through an open records request, but the school system said it could not release them without a judge’s order because they contained identifying information of students protected by the Family Educational Rights and Privacy Act.

The legal question was pending in court when Moore issued the grand jury subpoena for the hard drives.

Warren Turner, legal counsel for Lowndes County Schools, told The Valdosta Daily Times in a conversation that took place in November that the school system “has always thought it was best for the federal government to take control of the servers instead of providing it to a third party, family, the press or anyone (else).”

Georgia Federal Judicial Nominees Out of Step

National  Headquarters Community Services International Trade Bureau LaSalle Street Project 930 East 50th Street Chicago, IL 60615 Phone: 773-373-3366 Fax: 773-373-3571   Public Policy Institute & Telecommunications Project 727 15th St. NW Suite 1200 Washington, DC 20005 Phone: 202-393-7874 Fax: 202-393-1495   Wall Street Project 5 Hanover Square 2nd Floor New York, NY 10004 Phone: 212-425-7874 Fax: 212-968-1412   Entertainment Project 1968 West Adams Boulevard Suite 300 Los Angeles, CA 90018 Phone: 323 734-3900 Fax: 323 734-3913   Technology Project 520 20th Street Oakland, CA 94612 Phone: 510-869-2202 Fax: 510-763-2680   Peachtree Street Project 250 Auburn Avenue Suite 303 Atlanta, GA 30303 Phone: 404-525-5663 or 5668 Fax: 404-525-5233   Automotive Project First National Building 660 Woodward Avenue Suite 1433 Detroit, MI 48226 Phone: 313-963-9005 Fax: 313-963-9012

December 23, 2013

 

Statement of Janice L. Mathis for Rev. Jesse L. Jackson, Sr. and the Rainbow PUSH Coalition on Federal Judicial Appointments in Georgia 

(December 23, 2013 – Atlanta, Georgia) Only two of Georgia’s federal trial court judges are African American in a state that is more than 30% black.  Despite appeals to the Administration from members of Georgia’s Congressional delegation, President Obama has failed to name an African American woman to fill vacancies on the 11^th Circuit, one of America’s most conservative and most out of touch with mainstream America.  Only one of the six nominees is African American.   

Racial diversity is important to promote public confidence in the judiciary. But so is diversity of experience, gender and orientation.  One of the President’s six nominees to the federal bench voted to keep the Confederate battle symbol on the state flag and another defended draconian voter identification measures aimed at suppressing the black and Hispanic vote.  We can do better than this. 

Lifetime federal judicial appointees will serve long after President Obama’s second term ends.  History will judge whether his judicial appointments are accountable to the communities they serve.  Abraham Lincoln is greatly admired by President Obama.  Lincoln’s courage in the face of fierce opposition to the Reconstruction Amendments and his insistence that America experience a “new birth of freedom” are why he “belongs to the ages.”  

Half of all African Americans live in the South.  Demographic data indicate that the voices and aspirations of blacks, Hispanics, women and the LGBT community in Southern states like Georgia, Florida and the Carolinas will be increasingly prevalent in decades to come.  These nominees are out of step with those aspirations and are unworthy of the nation’s first African American President.   

The Rainbow PUSH Coalition joins Congressmen Hank Johnson, David Scott, the NAACP, Advocacy for Action, SCLC, the Georgia Association of Black Women Attorneys, the Gate City Bar, National Action Network and a host of others in calling for this Administration to start over and offer a slate of judicial nominees that looks like the citizens of Georgia and the South.  To do less is to fail those who put so much time, talent and treasure into assuring the President’s election. 

Rev. Jesse L. Jackson, Sr., a 2000 Medal of Freedom recipient, agrees with Georgia’s three Medal of Freedom recipients (Dr. Joseph E. Lowery, Congressman John Lewis and Rev. C.T. Vivian) in strongly urging President Obama and his Administration to populate the federal judiciary in Georgia, in the 11^th Circuit and in the nation with highly qualified individuals who are representative of the communities that they serve.  Judicial diversity promotes impartiality by ensuring that no one viewpoint, perspective, or set of values can persistently dominate legal decision making. 

 

 

 

 

 

Ethan Couch and the Incarceration Nation

Ethan Couch got the type of justice that is often meted out to the children of the rich, powerful or well-connected.  One of our local representatives has a son who habitually drives drunk.  Yet, he has not served significant jail time.  I live in Athens, where drunken behavior is not uncommon among students.  In court, I have seen well-heeled parents and their children appear in court with good lawyers, well-dressed, compliant and remorseful.  They go to PTD (pre-trial diversion) or drug court – ways to avoid having a permanent criminal history.  The wretched of the earth go to jail.  Color and class matter in the criminal justice system.

Though it did not get much mention, it was well-known that George Zimmerman’s family was tied into the local courthouse crowd.  Judge Jean Boyd’s sentence of ten years’ probation is not unusual, but it is disturbing.  Black or low-income defendants are more likely to get prison time when they commit the same or lesser offenses than the well-to-do.

If Ethan Couch had been black and living in the deep South and his victims were white, it is virtually certain that he would have been sentenced to 10 years (or more) in prison.  Nevertheless, I am not terribly opposed to the ten year probated sentence.  I only urge us to consider that if affluenza is a debilitating influence, imagine the effect of poverty, deprivation and racism.  All young defendants deserve the opportunity to have great counsel, have a second chance to get it right, benefit from equine therapy and become productive citizens.  In this way, we might climb down from the precipice that has made the U.S. the incarceration nation.

STATEMENT OF JANICE L. MATHIS FOR RAINBOW PUSH COALITION ON KENDRICK JOHNSON

 

Seven score and ten years ago, a great American challenged the nation with a question that we are still in the process of answering:  whether any nation conceived in liberty and dedicated to equal protection under the law can long endure.  We are today met on one of the great battlefields of the struggle to perfect the union. 

Georgia was one of the first states to enact voter suppression, in the building behind us.  Georgia was one of the first states to enact two strikes and you are out.  Georgia is the home of life without parole under the so-called seven deadly sins.  Georgia leads the nation in striking black jurors from jury rolls.  Georgia has no expungement of criminal convictions.  Georgia has one of the largest prison populations in the nation.  And yes, it comes as no surprise that in the building behind us, Georgia was one of the first states in the nation to contort self defense into stand your ground.  Simply put, stand your ground is unfair, unworkable and unnecessary. 

When Lincoln spoke 150 years ago at Gettysburg, there was no 13^th amendment, no fourteenth amendment and no 15^th amendment.  Lincoln gave his last full measure of devotion and became the final casualty in the rebellion of the Confederacy against the United States of America.  We shall never know what a reconstructed south might have looked like, because Lincoln was cut down by an assassin.

It does not matter so much what we say here.  But it matters what we do when we leave here. We urge Governor Deal to put himself in the place of Kendrick Johnson’s family.  What would you want Governor, if your child or grandchild was found dead at school?  What would you expect, Governor, if your child, or your grandson’s vital organs went mysteriously missing.  Simple justice is all these parents want.  Convene a coroner’s inquiry today.

We must here highly resolve that the honored dead…Lincoln, Dr. King, Trayvon, Kendrick Johnson did not die in vain.  We must here highly resolve to continue the fight until the great experiment in self government is fully realized.  We must here dedicate ourselves to ensuring there is truly government of the people, by the people and for the people.

 

EEOC GUIDANCE ON CRIMINAL HISTORY

EEOC Limits Use of Criminal History in Employment Decisions

To Read the Entire EEOC Enforcement Guidance, visit

http://www1.eeoc.gov//laws/guidance/arrest_conviction.cfm?renderforprint=1

 

The Equal Employment Opportunity Commission (EEOC) has issued guidance to employers regarding the consideration and use of conviction records in making employment decisions.  According to the EEOC, the guidance is designed to “consolidate and update” the use of arrest or conviction records under Title VII of the Civil Rights Act of 1964.

According to the Guidance, “the fact of an arrest does not establish that criminal conduct has occurred, and an exclusion based on an arrest, in itself, is not job related and consistent with business necessity. However, an employer may make an employment decision based on the conduct underlying an arrest if the conduct makes the individual unfit for the position in question.”

                          This provision has been used in our practice to restore employment to a person who has been accused, but not convicted, of a criminal offense. 

                          The Guidance goes on to compare disparate treatment and disparate impact.

A violation may occur when an employer treats criminal history information differently for different applicants or employees, based on their race or national origin (disparate treatment liability).

      An employer’s neutral policy (e.g., excluding applicants from employment based on certain criminal conduct) may disproportionately impact some individuals protected under Title VII, and may violate the law if not job related and consistent with business necessity (disparate impact liability).

      National data supports a finding that criminal record exclusions have a disparate impact based on race and national origin. The national data provides a basis for the Commission to investigate Title VII disparate impact charges challenging criminal record exclusions.

Properly applied these policies should result in considerable relief to persons whose criminal histories have impeded the search to obtain and keep good employment.

 

United Nations Reviews U.S. Efforts to Eliminate Racism

COMMENTS OF THE RAINBOWPUSH COALITION ON THE

PERIODIC REPORT OF THE
UNITED STATES OF AMERICA
 TO THE UNITED NATIONS COMMITTEE ON THE ELIMINATION OF RACIAL DISCRIMINATION (CERD)

On June 12, 2013, the State Department reported on efforts to eliminate racial discrimination in the U.S.  According to the Periodic Report to the United Nations, although the U.S. has “made great strides over the years in overcoming the legacies of slavery, racism, ethnic intolerance, and destructive laws, policies, and practices relating to members of racial and ethnic minorities…the path toward racial equality has been uneven, racial and ethnic discrimination still persists, and much work remains to meet our goal of ensuring equality for all.”

Attorney General Eric Holder indicated on August 12, 2013 that the United States Department of Justice will seek to ameliorate the harsh effects of mandatory minimum sentencing in federal courts and seek alternatives to incarceration.  We hail this announcement as a positive step in the right direction toward lowering one of the highest incarceration rates in the world.  Some states, most notably California, due to persistent advocacy, regulatory pressures, as well as the spiraling costs of caring for an aging prison population, are also experimenting with ways to reduce the number of incarcerated persons in the United States.

2013 marks the fiftieth anniversary of the March on Washington and one hundred and fifty years since the Emancipation Proclamation freed enslaved persons held in rebellious Confederate states.  Glaring racial disparities in health, education, incarceration rates and accumulated wealth are only a few of the indicators that race discrimination is a sad fact of American life.  We take issue with the assertion that “existing U.S. constitutional and statutory law and practice provide strong and effective protections against discrimination…in all fields of public endeavor, and provide remedies for those who, despite these protections, become victims of discrimination.”  Racial profiling and mass incarceration are two examples of the failure of U.S. law and policy to address the effects of discrimination. 

Historically, the Civil Rights Movement was bolstered by considerations of national security, national pride and concern for world opinion.  In that spirit, we offer these comments regarding the recent U.S. report to the CERD and U.S. response to previous CERD recommendations.

Compounding the problem is the expanding trend to require civil rights plaintiffs to prove that racial discrimination is “intentional”.  Civil rights groups and the government have relied heavily on disparate impact because intent is so difficult to prove.  Disparate impact is not concerned with intent, but instead focuses on results.  The CERD

In the U.S. remedies for discrimination are routinely “strictly scrutinized” to assure that blacks who have been historically excluded from virtually every area of American life don’t receive too much relief.  For example, in the recent Fisher v. Texas case, the Department of Justice sought to defend a race-conscious admission policy designed to increase the number of black and Latino students at the university.  A 5-4 majority of the Supreme Court sent the case back to the 5^th Circuit Court of Appeals to determine whether the implementation of the program was sufficiently narrowly tailored to meet a compelling state interest.  Ten years ago, the Court deferred to the judgment of university officials regarding “complex educational judgments.” Now, the Court is unwilling to accord the University of Texas the same deference.  The history of civil rights enforcement by the U.S. Supreme Court over the past forty years has largely been the tale of barely holding on to past gains, while persons seeking redress for discrimination must climb a narrower, rockier path.

In the area of government contracting, local governments must undertake expensive time-consuming “disparity studies” to prove that discrimination continues to exist.  Minority-owned contracting firms must undergo rigorous examinations of their official papers and records to qualify for diversity programs aimed at bolstering inclusion.  These and similar mechanisms discourage would-be bidders.  With regard to federal government incentives for inclusion of black contractors in work of private firms, sometimes, as in the case of the $16 billion dollar Southern Nuclear plant construction in Georgia, federal subsidies such as loan guarantees are extended without any goal or consideration of inclusion of minority-owned firms. 

It should be noted that many of the examples of progress cited by the United States emanate from districts outside the former Confederate southern states.  Examples from federal appeals courts in New York[i][1], South Dakota[2] and Pennsylvania[3] hardly tell the story of the United States when it comes to race.  Half of all blacks still live in the South and federal courts in the 4^th, 5^th and 11^th Circuits are the most hostile to race discrimination claims of all kinds.   It is also true that these circuits sentence federal defendants at much as 30% more harshly than the federal sentencing guidelines require, and much more harshly that federal courts in other circuits.

The United States and the states have done very little to address the following 2008 CERD recommendations, and as a result race discrimination in these areas is still rampant. 

1.       The Committee recommends that the State party review the definition of racial discrimination used in the federal and state legislation and in court practice, so as to ensure…that it prohibits racial discrimination in all its forms, including practices and legislation that may not be discriminatory in purpose, but in effect.

 

2.      The Committee recommends that the State party broaden the protection afforded by the law against discriminatory acts perpetrated by private individuals, groups or organizations

 

3.      The Committee recommends that the State party consider the establishment of an independent national human rights institution in accordance with the Paris Principles.

 

4.      The Committee recommends that the State party establish appropriate mechanisms to ensure a coordinated approach towards the implementation of the Convention at the federal, state and local levels.

 

5.      The Committee recommends that the State party strengthen its efforts to combat racial profiling at the federal and state levels, inter alia, by moving expeditiously towards the adoption of the End Racial Profiling Act, or similar federal legislation.

 

6.      The Committee therefore calls once again upon the State party to adopt and strengthen the use of such measures (affirmative action) when circumstances warrant their use as a tool to eliminate the persistent disparities in the enjoyment of human rights and fundamental freedoms and ensure the adequate development and protection of members of racial, ethnic and national minorities.

 

7.      The Committee recommends that the State party undertake further studies to identify the underlying causes of de facto segregation and racial inequalities in education, with a view to elaborating effective strategies aimed at promoting school desegregation and providing equal educational opportunity in integrated settings for all students.

 

8.     Bearing in mind [that] stark racial disparities in the administration and functioning of the criminal justice system, including the disproportionate number of persons belonging to racial, ethnic and national minorities in the prison population, may be regarded as factual indicators of racial discrimination, the Committee recommends that the State party take all necessary steps to guarantee the right of everyone to equal treatment before tribunals and all other organs administering justice, including further studies to determine the nature and scope of the problem, and the implementation of national strategies or plans of action aimed at the elimination of structural racial discrimination.

 

9.      The Committee wishes to reiterate its previous recommendation contained in paragraph 396 of its previous concluding observations of 2001, that the State party adopt all necessary measures, including a moratorium, to ensure that death penalty is not imposed as a result of racial bias on the part of prosecutors, judges, juries and lawyers.

The United States seems impervious to its own pre-judgments about race.  There is widespread belief that the racial and ethnic disparities are caused by lack of personal responsibility instead of institutional racism.  There are none so blind as those who will not see.  African Americans in particular who complain about the policies and practices described above are admonished to “get over it”, or “stop playing the race card.” 

We applaud the work of the CERD and urge US policy makers to take its observations and recommendations seriously.

 

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[1] “…New York City’s use of examinations for firefighters had an unlawful disparate impact on Blacks/African Americans and Hispanics/Latinos. U.S. v. City of New York, NY, 683 F. Supp. 2d 77 (E.D.N.Y. 2009).”

 

[2] “…a recent enforcement action led to an agreement with Shannon County, South Dakota to ensure the voting rights of Lakota-speaking Native American voters with limited English proficiency.”

 

[3] “For example, in 2010, the Department of Health and Human Services Office for Civil Rights (HHS/OCR) secured a settlement requiring the University of Pittsburgh Medical Center to ensure that closure of a hospital in a predominately Black/African American community did not have a disparate impact on the residents of that area.”

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