Untitled

[gustafsonmatthew-blog]

Common Black Association, Cracked Families and Lives

In this post here, I’d like to discuss the drug sentencings that have ruptured the structure of the black family in American society.  I’d like to preface this post with my belief that, based on historical evidence and the research of others, that the U.S. government has been creating ways to legally incarcerate black people since the slaves were “freed” after the Civil War.  This desire to maintain white supremacy is now heavily embedded into our legal and criminal justice system, to the point where things cannot be tweaked and if we were to see true justice, we must abolish the system and start a-new. The Civil Rights Act of 1964 served many people, we don’t see segregation today like America once used to, but racism didn’t magically end because of the act.  In fact, Richard Nixon really planted seeds for the division of black families and unity over the past 50 years by implementing the “war on drugs” mentality to the minds of Americans via the media.  We saw this rhetoric grow when the Anti-Drug Abuse Act was passed in 1986, changing a rehabilitating system into a punitive system; a point in time where the mass incarceration began to skyrocket even more than at already did in the late 60’s.  This Anti-Drug Abuse Act is human abuse, in my opinion, because of the devastating mandatory minimum sentencing it created.  As the availability of crack-cocaine was growing exponentially among poor neighborhoods of mostly colored people, the sentencing created a huge wave of black Americans being arrested and imprisoned for years due to their first, low-level drug offenses.  Under this act, a person convicted of possession with intent to distribute fifty grams or more of crack cocaine must be sentenced to no less than ten years in prison.  Comparatively, if a person intended to distribute 5,000 grams of powder cocaine, they would be sentenced for mandatory minimum of 10 years.  This created the famous 100:1 ratio that ruined thousands of lives in America.  Crack cocaine is the only drug where there is a mandatory minimum penalty for a first offense of simple possession.  

Edward Clay of Missouri has a prime case to exemplify this harsh disparity.  Clary was caught with over 50 grams of crack, meaning that he was subject to a mandatory minimum sentence of ten years’ imprisonment, according to federal law.  Clary, an eighteen-year-old black man with no prior convictions, charged that this penalty differential had a disproportionate and unjustifiable impact on him and other blacks because blacks are much more likely than whites to traffic crack.  Observable in the Eastern District of Missouri, between 1988 and 1992, blacks constituted 98.2 percent of the defendants convicted of crack cocaine charges (Kennedy, 365).  Judge Clyde S. Cahill refused to sentence Clary in accordance with the mandatory sentencing after coming to the conclusion that the Anti-Drug Abuse Act was a product of “unconscious racism” as well as “irrational and arbitrary” decision-making (Kennedy).  Cahill noted how racism has historically influenced the creation of drug policy. Fear and hatred of Asians was part of the legal measures put into place against the distribution or use of opium, a drug commonly associated in the public mind with Chinese people.  As I stated earlier, evidence has come out since his presidency that Richard Nixon and his associates were, in fact, targeting black and hippie communities at the end of the 60’s and into the 70’s.  This association was easy for him to achieve with the seemingly ever-growing power that mass media was attaining in America. Cahill also recognized the Harrison Act of 1914, which was the first federal law to prohibit he distribution of cocaine and heroin, which were commonly associated with black prostitutes and criminals in large cities.  

Released in 2016, a documentary called “13th” came out, which exposes the many flaws and loops in our criminal justice system. The documentary really exemplifies the disproportionate incarceration of Black Americans, as well as the police brutality that is increasingly present nowadays.  As upsetting as it is to learn about or witness, I am grateful it is getting the light of day.  I remember the film beginning with an audio clip of former U.S. President Barack Obama stating that the U.S. had 5 percent of the world’s population but 25 percent of the world’s prisoners.  These mind-rattling statistics were present throughout the movie, as well as touching on other disheartening subjects like that of convict leasing and the silencing of civil rights leaders like Malcolm X and Martin Luther King Jr.  The way the filmed addressed the mass incarceration that plagues this country was very well done, very easy for the new viewer to follow along, and addressed many of the reasons why our system is so seemingly broken and geared to destroy black families and communities as a whole.

With the façade that racism has been washed from America’s past present in the minds of the masses, addressing such social issues like these can pose as very difficult, because so many people think there is nothing to fix. We’ve ended segregation, we’ve had a black president, what else is there?  I whole-heartedly disagree with this idea.  In fact, I feel as though dealing with racism is even more difficult sometimes today, because not only do we have to dismantle these disgusting and inhumane beliefs…we need to raise awareness that they even exist.  Speaking from experience, I was privileged enough to grow up and not experience any of this embedded discrimination because of how I was born, and I wouldn’t have learned any depth about this issues that plague our society had I not began studying sociology in college.  It’s to the point in our society today where I feel like if one hasn’t been directly affected by the consequences of this systemic racism, and doesn’t study sociology or law, then there is a good chance they’d hardly scratch the surface of understanding the deep rooted race issues that exist today. Michelle Alexander’s book “The New Jim Crow” is a stellar novel that actually goes quite nicely when coupled with the documentary “13th”.  Randall Kennedy’s book has taught me so much on my sociological journey, and I would highly recommend his book “Race, Crime, and the Law” for understanding the foundation of racial discrimination in the criminal justice system, and everything up to the present day.

[gustafsonmatthew-blog]

Lack Of Defense: The Black Defendant in the Slavery Era

In this post, I’d like to talk about the difficulties that the Black defendant faced during the slavery era in America.  Prior to the Civil War, legislation was enacted to criminalize progressive human development for people of color.  Things such as learning to read, leaving the masters’ property without a pass, engaging in “unbecoming” conduct in the presence of a white female, and assembling to worship outside the supervision of a white person were all criminalized for slaves at the time.  All of these things strategically enacted to diminish any intelligence, hope, and progress that could be made by the oppressed group of Blacks that were servants of the white “supreme” class.  With little means of communication, and little personal time to do so, the slaves could hardly harness hope or strategy of coming together and having a revolution to take place, let alone it having any impact on a dominant, armed, and more educated class.  They criminalized intelligence, they sought so relentlessly to keep this group oppressed, uneducated, and without hope. Total brainwash.  These strategic elements of keeping Black people in a lower societal class poured over into the court system effortlessly.  Without legal protection, does a citizen have any rights at all?  

On top of facing discrimination in terms of criminal law and in terms of punishment, slaves were discriminated against in terms of procedural rules.  We can view the case of State v. Mann, possibly the most popular case regarding slavery and criminal law.  The defendant, John Mann, leased a slave named Lydia.  During her time under Mann’s jurisdiction, she committed small offenses that the court did not specify, but it was indicated that she tried to run away.  Upon disregard for Mann’s commands to stop, she was shot and wounded by Mann.  It was remarkable at the time that a white man was indicted and convicted for assault and battery, being that she was a black slave and all, given the difficulties that authorities at the time faced in bringing criminal prosecutions against whites for inflicting violence upon Blacks. This justice lasting a limited amount of time, we see the North Carolina Supreme Court unanimously overturn the courts decision.  Judge Thomas Ruffin, one of the most respected judges in the nineteenth-century America, said “We cannot allow the right of the master to be brought into discussion in the Courts of Justice.  The slave, to remain a slave, must be made sensible that there is no appeal from his master; that his power is in no instance, usurped; but is conferred by the laws of man at least, if not by the law of God”.  This decision was reached because of Ruffin’s logic, which, as disgusting as it is, makes sense in the dynamic that was present at the time.  He claims that the only thing that creates the obedience that slavery required is “uncontrolled authority over the body”, and that “the power of the master must be absolute, to render the submission of the slave perfect”.  This case is an example of the brutal disproportion of power among races in America, and how justice was overturned in the court of law to reinforce the racist domination of whites at the time.

In 2013, the movie “12 Years a Slave” was released, and it brought light to America’s dark past by displaying what life was like as a slave. The film was based off of an 1853 slave memoir Twelve Years a Slave by Solomon Northup.  The movie followed his tragic journey as a free man of the north being kidnapped from his family and introduced to slave labor in Louisiana for 12 years before being released.  I like this movie for its brutally, disturbing, accurate depiction of life for both whites and blacks in the mid-1800s, the thriving slave culture, and the methods used to enforce the power dynamics that weren’t to be questioned. One scene in particular that was etched into my mind, was the beating of a female slave named Patsey by the main character, Northup.  This visual display of one slave whipping another nearly to death to punish her was brutal, as the slave masters told Northup that if he did not hit her harder, he would face death.  The way the movie depicted it, was almost as if the white folks didn’t want to partake in the whipping, that they somehow knew that it was immoral and wrong. Despite this seemingly present awareness of humanity or lack-thereof, the whipping continued harder and harder, until Patsey was nearly dead.  This was one of the most utilized forms of enforcing the master’s dominance, the whipping of slaves is absolutely undeniable throughout America’s history, and personally I would argue that this violent rhetoric of dominance through brutal violence has lingered over the past 200 years.  We can see it in police brutality cases today, ranging from Rodney King to Eric Garner, the excessive force today is unjustified and I would not be surprised if it is the fruit of these dark and disturbing roots of America’s past.

The slavery era proved to be interesting when regarding the criminal justice system.  Before slaves were “freed” after the civil war, the black population in prisons was remarkably low when compared to today’s numbers.  Typically, blacks were punished by whipping or beating, and sent back to work for their master.  It wasn’t even close to the mass incarceration that our nation hosts today. Based on the case we looked at earlier, and the movie discussed, the use of jail was not even discussed.  Often times, beatings were the answer and, debatably worse cases, capital punishment was executed for disobedience.  

For more information on these topics, I’d recommend “Race, Crime, and the Law” by Randall Kennedy, and Michelle Alexander’s “The New Jim Crow” for more information on the matters.  Each author does a fine job at providing the facts in an honest and blunt way. Slavery in the Courtroom: An Annotated Bibliography of American Cases by Paul Finkelman also gives a large selection of cases to be studied.

[wereadaroundhere2]

[gustafsonmatthew-blog]

Peremptory Challenges, Challenging Legal Exercise of “Free” Citizens

Today, I’d like to discuss a court case that happened in America prior to the Civil Rights Act of 1964.  Just years before the Civil Rights Act was passed, we see Swain v. Alabama, a case that historians and lawyers see as the authorization of racially discriminatory peremptory challenges.  For our readers new to the matter, let’s talk about the peremptory challenges.  Peremptory challenges are a defendant's or lawyer's objection to a proposed juror, made without needing to give a reason.  Essentially, the prosecutor can remove a select number of jurors (depending on the jury’s size) without reason.  In the study of race, crime, and punishment, we see this effecting the convictions greatly in cases with a black defendant. We’ve seen prosecutors removing some of the only black jurors to be sitting in on the case.  With these members of the jury removed, is it still a jury of one’s peers, if the defendant is of color?  The disproportionate amount of convictions of a black defendant by an all-white jury are evidence supporting the claim.   Traditionally, when it is time to select the jury that decides on a case, prosecuting attorneys and sometimes defense attorneys use peremptory challenges to exclude black citizens who could potentially be jurors.

Swain v. Alabama is a key case in observing the constitutional status of the racially motivated peremptory challenge. It took place in 1962, when the prosecuted black man was convicted and sentenced to death by an all-white jury for the rape of a white woman in Talladega County, Alabama.  This rhetoric and conception of the black man being savage about white women is also observably an overplayed and highly over-dramatized belief America seems to have.  In Talladega county, 26 percent of the people eligible for jury service were black, there hadn’t been one African-American on the jury trial since at least 1950.  In Swain’s case, the prosecution struck all sic of the black citizens who could have been jurors.  Despite the objection of Swain’s attorney, the judge ruled against the defendant’s constitutional challenge.  This decision was also affirmed by the Supreme Court of Alabama and the U.S. Supreme Court.

Justice Byron White of the U.S. Supreme Court stated that there was nothing in the Constitution that required a judge to examine the motives behind a prosecutor’s use of peremptory challenges.  As long as it was being used to take legal action and not as a means of racial screening, the prosecution was in the clear.  White is quoted in saying “the presumption in any particular case must be the that the prosecutor is using the State’s challenge to obtain fair and impartial jury to try the case.  Presumption is not overcome and the prosecutor is using the states to say that this presumption is not overcome and the prosecutor therefore subjected to examination by allegations that in the case at hand all Negroes were removed… because they were Negroes.”  We see this theme as a huge problem, as it was strategically being used to deny people of color as an entire class their rights as American citizens to express their voice in a legal scenario.  

We can see this exact type of scenario displayed creatively in the work of Harper Lee’s “To Kill a Mockingbird”.  Tom Robinson was prosecuted for beating a white woman by an all-white jury, despite scientific evidence presented that he could not have committed the crime, he was convicted regardless.  This book (released in 1960, the movie followed in 1962) was a publicized depiction of this discriminatory rhetoric that was occurring in courtrooms from the time of reconstruction, up until the tail end of Jim Crow laws in 1964. To summarize these chapters of the book, we see the all-white jury in an awkward position. If they acquit a black man who admittedly pities a white person, then they're voting to lessen their own power over the black community, which is horribly racist and demeaning in and of itself.   However, if they convict Tom, they do so knowing that they're sentencing an innocent man to death. Mayella Ewell, the victim of this beating, makes their choice very easy when she looks at the jury and says, 'That nigger yonder took advantage of me an' if you fine fancy gentlemen don't wanta do nothin' about it then you're all yellow stinkin' cowards."  Despite the scientific evidence and humane support brought forth by the defendant’s lawyer, Atticus Finch, the jury finds Tom Robinson guilty on all charges.  This work is important in my opinion, as it was a publically available account of the all too common result of trials of similar circumstance that were actually occurring across America for the past century.

We didn’t see the Civil Rights Act of 1964 put an immediate end to this discrimination being exercised in courtrooms, just as racism itself was not stopped in its tracks either.  However, I believe the civil rights act served as a national symbol of progressing, raising our awareness as a country, and viewing all people as people and nothing lesser.  This national rise in conscious awareness likely led to a case in 1976, the case of United States v. Robinson.  This case made it large when the prosecution exempted the only 4 black jurors on trial, and Judge Jon O. Newman initiated this radical change of pace by asking the prosecutor if he’d like to state a non-racial reason as to why the jurors were dismissed, to which he did not respond.  Black Americans were given unfair trials as soon as Jim Crow laws were implemented.  The brief period of reconstruction that followed the North’s victory of the Civil War was probably the free-est time to be an Africa-American, but the white leaders of the country couldn’t stand the idea of “them” rising up.  This is why we see an exponential skyrocketing increase of blacks incarcerated after the Jim Crow laws were enacted.  A common theme throughout all racial studies of America, we see those in charge “abolish” a prior way of being cruel and unusual to the people by composing some new law or act that claims all is fixed, while implementing newer and subtler means of discrimination and unequal opportunities that trace back to one’s race.

To learn more about the subject at hand, the book “Race, Crime, and the Law” by Randall Kennedy is an excellent read, shines light on this topic and address nearly every angle one could tackle issues of race, crime, and law in America.  Two websites that may be beneficial for further research on the matter are deathpnealtyinfo.org and crf-usa.org.  I hope this post served as a reminder as to our unjust history as a nation and aides in your personal determination for reform and undoing the harm we’ve caused countless members of our human race.