Digital Commons Network^™

Man’S Best Friend? How Dogs Have Been Used To Oppress African Americans, Shontel Stewart

Michigan Journal of Race and Law

The use of dogs as tools of oppression against African Americans has its roots in slavery and persists today in everyday life and police interactions. Due to such harmful practices, African Americans are not only disproportionately terrorized by officers with dogs, but they are also subject to instances of misplaced sympathy, illsuited laws, and social exclusion in their communities. Whether extreme and violent or subtle and pervasive, the use of dogs in oppressive acts is a critical layer of racial bias in the United States that has consistently built injustices that impede social and legal progress. By recognizing this pattern …

Government Misconduct And Convicting The Innocent: The Role Of Prosecutors, Police And Other Law Enforcement, Samuel R. Gross, Maurice J. Possley, Kaitlin Jackson Roll, Klara Huber Stephens

Other Publications

This is a report about the role of official misconduct in the conviction of innocent people. We discuss cases that are listed in the National Registry of Exonerations, an ongoing online archive that includes all known exonerations in the United States since 1989, 2,663 as of this writing. This Report describes official misconduct in the first 2,400 exonerations in the Registry, those posted by February 27, 2019.

In general, we classify a case as an “exoneration” if a person who was convicted of a crime is officially and completely cleared based on new evidence of innocence.

The Report is …

White Caller Crime: Racialized Police Communication And Existing While Black, Chan Tov Mcnamarah

Michigan Journal of Race and Law

Over the past year, reports to the police about Black persons engaged in innocuous behaviors have bombarded the American consciousness. What do we make of them? And, equally important, what are the consequences of such reports?

This Article is the first to argue that the recent spike in calls to the police against Black persons who are simply existing must be understood as a systematic phenomenon which it dubs racialized police communication. The label captures two related practices. First, racially motivated police reporting—calls, complaints, or reports made when Black persons are engaged in behavior that would not have been read …

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of "A Condition Analogous To That Of A Slave" In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Articles

Over the last decades, the Brazilian state has engaged in concerted legal efforts to identify and prosecute cases of what officials refer to as “slave labor” (trabalho escravo). At a conceptual level, the campaign has paired the constitutional protection of human dignity and the “social value of labor” with an expansive interpretation of the offense described in Article 149 of the Criminal Code as “the reduction of a person to a condition analogous to that of a slave.” At the operational level, mobile teams of inspectors and prosecutors have intervened in thousands of work sites, and labor prosecutors …

The Effect Of Criminal Records On Access To Employment, Amanda Agan, Sonja B. Starr

Articles

This paper adds to the empirical evidence that criminal records are a barrier to employment. Using data from 2,655 online applications sent on behalf of fictitious male applicants, we show that employers are 60 percent more likely to call applicants that do not have a felony conviction. We further investigate whether this effect varies based on applicant race (black versus white), crime type (drug versus property crime), industry (restaurants versus retail), jurisdiction (New Jersey versus New York City), local crime rate, and local racial composition. Although magnitudes vary somewhat, in every subsample the conviction effect is large, significant, and negative.

Race And Wrongful Convictions In The United States, Samuel R. Gross, Maurice Possley, Klara Stephens

Other Publications

African Americans are only 13% of the American population but a majority of innocent defendants wrongfully convicted of crimes and later exonerated. They constitute 47% of the 1,900 exonerations listed in the National Registry of Exonerations (as of October 2016), and the great majority of more than 1,800 additional innocent defendants who were framed and convicted of crimes in 15 large-scale police scandals and later cleared in “group exonerations.” We see this racial disparity for all major crime categories, but we examine it in this report in the context of the three types of crime that produce the largest numbers …

The Tyranny Of Small Things, Yxta Maya Murray

Michigan Journal of Race and Law

In this legal-literary essay, I recount a day I spent watching criminal sentencings in an Alhambra, California courthouse, highlighting the sometimes mundane, sometimes despairing, imports of those proceedings. I note that my analysis resembles that of other scholars who tackle state over-criminalization and selective law enforcement. My original addition exists in the granular attention I pay to the moment-by-moment effects of a sometimes baffling state power on poor and minority people. In this approach, I align myself with advocates of the law and literature school of thought, who believe that the study (or, in this case, practice) of literature will …

Tightening The Ooda Loop: Police Militarization, Race, And Algorithmic Surveillance, Jeffrey L. Vagle

Michigan Journal of Race and Law

This Article examines how military automated surveillance and intelligence systems and techniques, when used by civilian police departments to enhance predictive policing programs, have reinforced racial bias in policing. I will focus on two facets of this problem. First, I investigate the role played by advanced military technologies and methods within civilian police departments. These approaches have enabled a new focus on deterrence and crime prevention by creating a system of structural surveillance where decision support relies increasingly upon algorithms and automated data analysis tools and automates de facto penalization and containment based on race. Second, I will explore these …

Testing Racial Profiling: Empirical Assessment Of Disparate Treatment By Police, Sonja B. Starr

Articles

In this Article, I explore why measuring disparate-treatment discrimination by police is so difficult, and consider the ways that researchers' existing tools can make headway on these challenges and the ways they fall short. Lab experiments have provided useful information about implicit racial bias, but they cannot directly tell us how these biases actually affect real-world behavior. Meanwhile, for observational researchers, there are various hurdles, but the hardest one to overcome is generally the absence of data on the citizen conduct that at least partially shapes policing decisions. Most crime, and certainly most noncriminal "suspicious" or probable-cause-generating behavior, goes unreported …

Racial Profiling In The War On Drugs Meets The Immigration Removal Process: The Case Of Moncrieffe V. Holder, Kevin R. Johnson

University of Michigan Journal of Law Reform

In Moncrieffe v. Holder, the Supreme Court held that the Board of Immigration Appeals could not remove a long-term lawful permanent resident from the United States based on a single misdemeanor conviction for possession of a small amount of marijuana. The decision clarified the meaning of an “aggravated felony” for purposes of removal, an important question under the U.S. immigration laws. In the removal proceedings, Adrian Moncrieffe, a black immigrant from Jamaica, did not challenge his arrest and drug conviction. Consequently, the Supreme Court did not review the facts surrounding, or the lawfulness of, the criminal prosecution. Nonetheless, the traffic …

Prison Segregation: Symposium Introduction And Preliminary Data On Racial Disparities, Margo Schlanger

Articles

For this Introduction, I undertake to look a bit more broadly at recent data. The best sources of demographic information about prisoners are the various surveys and censuses conducted by the U.S. Department of Justice Bureau of Justice Statistics (BJS). While no BJS publication directly addresses the issue, and no BJS dataset allows its full analysis, it is possible to glean something from the most recent BJS prison census, the 2005 Census of State and Federal Adult Correctional Facilities.

A Failure Of The Fourth Amendment & Equal Protection's Promise: How The Equal Protection Clause Can Change Discriminatory Stop And Frisk Policies, Brando Simeo Starkey

Michigan Journal of Race and Law

Terry v. Ohio changed everything. Before Terry, Fourth Amendment law was settled. The Fourth Amendment had long required that police officers have probable cause in order to conduct Fourth Amendment invasions; to administer a "reasonable" search and seizure, the state needed probable cause. But in 1968, the Warren Court, despite its liberal reputation, lowered the standard police officers had to meet to conduct a certain type of search: the so-called "'stop' and 'frisk.'" A "stop and frisk" occurs when a police officer, believing a suspect is armed and crime is afoot, stops the suspect, conducts an interrogation, and pats him …

Every High Has A Low: A Pragmatic Approach To The War On Drugs, Mark Garibyan

University of Michigan Journal of Law Reform Caveat

One of the lasting vestiges of Richard Nixon’s presidency is the infamous “War on Drugs,” a forty-year-old effort aimed at curtailing “illicit drug consumption and transactions in America.” Although the goal behind the policy—a reduction in the rate of substance abuse—may be altruistic, the War on Drugs has dismally failed to achieve its goals and has exacerbated existing problems. Specifically, laws dealing with crack cocaine result in a “heavily disproportionate impact on black defendants;” in 2008 “blacks comprised 79.8 percent of those convicted for crack cocaine-related offenses,” whereas “whites comprised only 10.4 percent.” More generally, these laws illustrate a fundamental …

Why The County Jail Is Often A Better Choice, Shawn Chapman Holley

Michigan Law Review First Impressions

I have been a criminal defense lawyer in Los Angeles for almost twenty years. I began my career in the Los Angeles County Public Defender’s Office, representing defendants who were poor and often homeless. For the past twelve years, I have been in private practice, representing defendants who are wealthy and often famous. Having represented criminal defendants coming from such varied economic circumstances, I have witnessed firsthand the criminal justice system’s disparate treatment of those with money and those without. Pay-to-stay jails are yet another example of that disparity. Yet I believe that those without the money to pay for …

The Dirty Little Secrets About Pay-To-Stay, Laurie L. Levenson, Mary Gordon

Michigan Law Review First Impressions

The dirty little secret is out: people with more money get a better deal in our criminal justice system. Anyone who has spent more than a nanosecond in this system knows it to be true, yet that does not make it right. It is an abomination to divert our attention to pay-to-stay programs instead of finding the resources to improve our general jail facilities to make them tolerable for every inmate. Don’t get us wrong—if we suffered the misfortune of being arrested, we would dearly love the opportunity to pay for a private jail facility. However, the pay-to-stay initiative is …

Pay-To-Stay Programs In California Jails, Michael S. Carona

Michigan Law Review First Impressions

When a person has committed a criminal offense, he or she must be punished to vindicate the law, to acknowledge the suffering of the victim, and to deter future crimes. Imprisonment—the method commonly used to carry out this punishment—becomes increasingly problematic when our jails and prisons, especially in California, are bursting at the seams. As the Sheriff of the eighth largest jail system in the nation, I am responsible for the confinement and care of thousands of inmates in the Orange County Jail system. With a growing inmate population and a shortage of beds, I continue to look for new …

It Could Happen To "You": Pay-To-Stay Jail Upgrades, Kim Shayo Buchanan

Michigan Law Review First Impressions

In the jails of Los Angeles County, about 21,000 detainees are held in filthy cells so overcrowded—four men in a cell built for two, six to a four-man cell—that, as federal judge Dean D. Pregerson observed in 2006, inmates must stay in their bunks at all times because there is not enough room for them to stand. These men—ninety percent of whom are pretrial detainees— are held in these conditions twenty-four hours per day, seven days per week, and are typically allowed only a single three-hour exercise period weekly. Other inmates are held for days in a county “reception center” …

Criminal Justice And The 1967 Detroit 'Riot', Yale Kamisar

Articles

Forty years ago the kindling of segregation, racism, and poverty burst into the flame of urban rioting in Detroit, Los Angeles, Newark, and other U.S. cities. The following essay is excerpted from a report by Professor Emeritus Yale Kamisar filed with the National Advisory Commission on Civil Disorders (the Kerner Commission) regarding the disorders that took place in Detroit July 23-28, 1967. The report provided significant material and was the subject of one article in the series of pieces on the anniversary of the disturbances that appeared last summer in The Michigan Citizen of Detroit. Immediately after the disturbances ended, …

The Usa Patriot Act: A Policy Of Alienation, Kam C. Wong

Michigan Journal of Race and Law

This Article provides a brief overview of how Muslims were treated after 9/11. It documents how the USAPA and related measures have been used to monitor, investigate, detain, and deport Muslim U.S. citizens in violation of their civil rights. Of particular importance, is how the life circumstances of the Muslims in America have changed for the worse as a result of zealous enforcement and discriminatory application of the USAPA. In so doing, this Article seeks to provide concrete facts and a rich context to ascertain the implications of 9/11 on American society.

Ghosts Of Alabama: The Prosecution Of Bobby Frank Cherry For The Bombing Of The Sixteenth Street Baptist Church, Donald Q. Cochran

Michigan Journal of Race and Law

Perhaps no other crime in American history has shocked the conscience of America like the 1963 bombing of the Sixteenth Street Baptist Church in Birmingham, Alabama. In May of 2002- almost thirty-nine years after the bombing- Bobby Frank Cherry was brought to trial for the murders of Addie, Carole, Cynthia, and Denise. He was the last person to be tried for the bombing. As an Assistant United States Attorney in Birmingham, Alabama it was my privilege to be a part of the prosecution team that brought Cherry to justice. This Article tells the story of that prosecution and explores the …

Discrimination In Sentencing On The Basis Of Afrocentric Features, William T. Pizzi, Irene V. Blair, Charles M. Judd

Michigan Journal of Race and Law

This Article does not challenge the prior research on sentencing discrimination between racial categories that found no significant difference in sentences given to similarly-situated African Americans and Whites. In fact, in the jurisdiction investigated- Florida- no discrimination between African Americans and Whites was found in the sentences imposed on defendants, looking only at racial category differences. Rather, the research suggests that in focusing exclusively on discrimination between racial groups, the research has missed a type of discrimination related to race that is taking place within racial categories: namely, discrimination on the basis of a person's Afrocentric features. By Afrocentric features, …

Bête Noire: How Race-Based Policing Threatens National Security, Lenese C. Herbert

Michigan Journal of Race and Law

This Article asserts that race-based policing, enabled and exacerbated by race-blind judicial review, creates an ire with a purpose that promises, especially after September 11, to make us all less safe. The illegitimate marginalization of American citizens aggravates an already alienated population and primes them for cooperation with those who seek to harm the United States. Race-based policing guts the expectation of fair-dealing, legitimacy, and justice in the criminal justice system, creating marginalized populations, especially of African Americans. Lack of judicial redress in the face of such policing irrevocably stains already beleaguered African Americans (and others so policed) as inferior …

Road Work: Racial Profiling And Drug Interdiction On The Highway, Samuel R. Gross, Katherine Y. Bames

Articles

Hypocrisy about race is hardly new in America, but the content changes. Recently the spotlight has been on racial profiling. The story of Colonel Carl Williams of the New Jersey State Police is a wellknown example. On Sunday, February 28, 1999, the Newark Star Ledger published a lengthy interview with Williams in which he talked about race and drugs: "Today... the drug problem is cocaine or marijuana. It is most likely a minority group that's involved with that."4 Williams condemned racial profiling - "As far as racial profiling is concerned, that is absolutely not right. It never has been con-doned …

Racial Profiling Under Attack, Samuel R. Gross, D. Livingston

Articles

The events of September 11, 2001, have sparked a fierce debate over racial profiling. Many who readily condemned the practice a year ago have had second thoughts. In the wake of September 11, the Department ofJustice initiated a program of interviewing thousands of men who arrived in this country in the past two years from countries with an al Qaeda presence-a program that some attack as racial profiling, and others defend as proper law enforcement. In this Essay, Professors Gross and Livingston use that program as the focus of a discussion of the meaning of racial profiling, its use in …

When Success Breeds Attack: The Coming Backlash Against Racial Profiling Studies, David A. Harris

Michigan Journal of Race and Law

The author proposes that in an ongoing debate on questions concerning the possibility of racial or other types of invidious discrimination by public institutions, we should apply a prima facie standard to these claims in the public arena. In other words, if African Americans or Latinos say that they have been the victims of racial profiling, we should not ask for conclusive proof in the strictest statistical sense; rather, if they can present some credible evidence beyond anecdotes, some statistics that indicate that we may, indeed, have a problem, the burden should then shift to the public institution-here, law enforcement …

"Suitable Targets"? Parallels And Connections Between "Hate" Crimes And "Driving While Black", Lu-In Wang

Michigan Journal of Race and Law

This Essay seeks to show that there is less to some of these apparent differences than meets the eye. While hate crimes may tend to be less routine and more violent than discriminatory traffic stops, closer examination of each shows the need to complicate our understanding of both. The work of social scientists who have studied bias-motivated violence and of legal scholars who have studied racial profiling- prominent among them my fellow panelist, Professor David A. Harris- reveals striking similarities and connections between the two practices. In particular, both hate crimes and racial profiling tend to be condemned only at …

Subtracting Race From The "Reasonable Calculus": An End To Racial Profiling? United States V. Montero-Camargo 208 F.3d 1122 (9th Cir. 2000) Cert. Denied Sub Nom, Elisabeth R. Calcaterra, Natalie G. Mitchell

Michigan Journal of Race and Law

This Case Note presents the facts of Montero-Camargo, describes the decision of the Ninth Circuit Court in historical context, and analyzes the effect of the Court's holding. The Case Note argues that while the Ninth Circuit's decision to prohibit the use of race as a factor in determining the reasonableness calculus in traffic stops is progressive in spirit, implementing the decision will be difficult. Thus far, mechanisms designed to limit officers' use of race in traffic stops have been ineffective and have left victims with little recourse, resulting in a disproportionate number of innocent African American and Latino drivers …

Race, Peremptories, And Capital Jury Deliberations, Samuel R. Gross

Articles

In Lonnie Weeks's capital murder trial in Virginia in 1993, the jury was instructed: If you find from the evidence that the Commonwealth has proved beyond a reasonable doubt, either of the two alternative aggravating factors], and as to that alternative you are unanimous, then you may fix the punishment of the defendant at death or if you believe from all the evidence that the death penalty is not justified, then you shall fix the punishment of the defendant at life imprisonment ... This instruction is plainly ambiguous, at least to a lay audience. Does it mean that if the …

The Adversity Of Race And Place: Fourth Amendment Jurisprudence In Illinois V. Wardlow, 528 S. Ct. 673 (2000), Adam B. Wolf

Michigan Journal of Race and Law

This Case Note lays out Wardlow's pertinent facts, describes the decisions of the Court and lower courts, and then analyzes the ramifications of the Court's holding. In particular, this Case Note argues that the Court's ruling recognizes substantially less Fourth Amendment protections for people of color and indigent citizens than for wealthy Caucasians. This perpetuates a cycle of humiliating experiences, as well as fear and mistrust of the police by many poor people of color.

The Charleston Policy: Substance Or Abuse?, Kimani Paul-Emile

Michigan Journal of Race and Law

In 1989, the Medical University of South Carolina (MUSC) adopted a policy that, according to subjective criteria, singled out for drug testing, certain women who sought prenatal care and childbirth services would be tested for prohibited substances. Women who tested positive were arrested, incarcerated and prosecuted for crimes ranging from misdemeanor substance possession to felony substance distribution to a minor. In this Article, the Author argues that by intentionally targeting indigent Black women for prosecution, the MUSC Policy continued the United States legacy of their systematic oppression and resulted in the criminalizing of Black Motherhood.