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Demand accessible legal representation.
Public defenders represent criminal defendants unable to hire a lawyer for themselves. They only exist because Clarence Gideon petitioned the U.S. Supreme Court from a prison cell. He had been forced to represent himself in court since his home state of Florida only provided free legal counsel for those facing the death penalty (C-Span). The Supreme Court agreed that this infringed on Gideon’s Sixth Amendment rights, ruling that “lawyers in criminal courts are necessities, not luxuries” (Department of Justice) and creating a system offers legal representation to all those accused of a crime, regardless of their ability to pay (Georgia State University).
TAKE ACTION
Support the Legal Services Staff Association to demand fair working conditions at Legal Services NYC.
Follow and donate to Gideon’s Promise, a public defender organization that provides mentorship and training.
Donate to the National Association of Criminal Defense Lawyers.
GET EDUCATED
By Andrew Lee (he/him)
New York Governor Andrew Cuomo’s resignation became effective Tuesday (Statesman). Cuomo left office in disgrace after a damning report found Cuomo sexually harassed and created a hostile work environment for female employees. A number of district attorney offices in the state have already requested information, raising the possibility of criminal charges as well (ABC News).
We don’t know if charges will be filed, let alone the outcome of a potential trial. But we do know Cuomo would be able to afford world-class legal representation in court. Already a multimillionaire (Yahoo Finance), his $50,000 annual state pension is higher than the median per capita income of the state he governed (U.S. Census Bureau). Sadly, despite the promise of legal representation for all facing criminal charges, the resources afforded the accused vary widely depending on their wealth.
Public defenders represent criminal defendants unable to hire a lawyer for themselves. They only exist because Clarence Gideon petitioned the U.S. Supreme Court from a prison cell. He had been forced to represent himself in court since his home state of Florida only provided free legal counsel for those facing the death penalty (C-Span). The Supreme Court agreed that this infringed on Gideon’s Sixth Amendment rights, ruling that “lawyers in criminal courts are necessities, not luxuries” (Department of Justice) and creating a system offers legal representation to all those accused of a crime, regardless of their ability to pay (Georgia State University).
However, there remains a deep gulf between those forced to rely on a public defender and those who can afford a private lawyer. Even the Department of Justice declared that “the promise of Gideon remains unfulfilled… Many defenders struggle under excessive caseloads and lack adequate funding and independence, making it impossible for them to meet their legal and ethical obligations to represent their clients effectively” (Department of Justice). Because of a lack of public defenders, those accused can wait over a year in jail until an attorney is even appointed to them. Some defendants are unable to communicate with their defenders, who can only devote minimal time to each of their cases. In Washington State, this ends up being an hour for each defendant (Fordham) . Shuranda Williams, who saw her public defender only one time in a year while awaiting a trial in which she may be imprisoned for life, said, “At least if I got out, I could work and afford a decent lawyer” (Marshall Project). Governor Cuomo himself settled in a class-action lawsuit that alleged that New York “failed to provide adequate legal defense for the poor” (N.Y. Times). Over-policed and over-prosecuted populations like Black Americans “bear the brunt of our public defender systems’ underfunding and overwork.” This problem is pervasive since four out of five people accused of a felony are forced to rely on a public defender (The Guardian).
Overworked public defenders are correlated with increased conviction rates, longer sentences, and higher rates of wrongful convictions (Brennan Center). While private attorneys take as many cases as they please, public defenders are regularly tasked with hundreds of cases each year (Marshall Project). The average public defender is paid just $47,500 out of law school — $2,500 less than Gov. Cuomo’s pension (Fordham).
Being able to afford a private attorney is a deviation from the norm: dependence on an overworked, under-resourced public defense system. Those with wealth provide themselves a significantly higher level of legal protection than almost everyone else, especially those from exploited and marginalized communities. The declaration that all are entitled to legal representation in American courts was a significant decision, but if representation remains inadequate, that right becomes fiction.
Key Takeaways
The Supreme Court ruled that those who can’t afford a lawyer must get a public defender to represent them in a criminal case.
In reality, public defense is so under-resourced that in some cases, lawyers can only spend an hour on average looking at cases.
One people with felony charges who can afford a private attorney get significantly more protection than the four of five who can’t.
RELATED ISSUES
10/16/2020 | Abolish the grand jury.
5/27/2021 | Advocate for our right to trial.
PLEDGE YOUR SUPPORT
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Advocate for our right to trial.
The U.S. positions itself as a just country with a superior legal system where people are always considered innocent until proven guilty and always granted the right to a trial before a jury of their peers. Except this isn’t true at all. Despite the promise of the Sixth Amendment, we do not have an effective right to trial because today, the overwhelming majority of cases will never see a judge.
Happy Thursday! Understanding abolition requires us to consider how our criminal justice system fails to live up to its expectations. Part of that is understanding how our right to trial is often convoluted. Today, Andrew unpacks more.
Thank you to everyone that makes this work possible. If you want to support, give $7/month on Patreon. Or you can give one-time on our website or PayPal. You can also support us by joining our curated digital community.
Nicole
TAKE ACTION
Read the National Association of Criminal Defense Lawyer’s report on “The Trial Penalty” and learn about racism in the criminal justice system.
Follow the Prison Policy Initiative (Instagram), The Marshall Project, and Prison Legal News.
Learn about how even deplorable acts of harm require justice from outside the legal system. (TW: discussion of child sexual abuse throughout).
Support Decarcerate PA (Instagram), the Anti-Recidivism Coalition, the Center for Constitutional Rights, or a local group working to fight prosecution, incarceration, and dependence on the state for addressing harm.
GET EDUCATED
By Andrew Lee (he/him)
The U.S. positions itself as a just country with a superior legal system where people are always considered innocent until proven guilty and always granted the right to a trial before a jury of their peers. Except this isn’t true at all. Despite the promise of the Sixth Amendment, we do not have an effective right to trial because today, the overwhelming majority of cases will never see a judge.
Some think that most criminal cases go to trial and that those who take a plea deal are always guilty. But in reality, only a third to a fourth off felony cases went to trial in the 1960s. Today, the figure is just one in twenty. 90% of the criminal convictions are the result of a plea deal, not a trial (The Outline). Most convictions happen after a defendant gives in to a prosecutor offering them a lighter sentence if they plead guilty or a much heavier sentence should they lose in court.
It’s not hard to imagine an innocent person who may have already spent months in jail deciding to take such a deal rather than risk a trial. This “trial penalty,” says the National Association of Criminal Defense Lawyers, “has virtually eliminated the constitutional right to a fair trial” (NACDL). In the words of Judge Jed S. Rakoff, “Our criminal justice system is almost exclusively a system of plea bargaining, negotiated behind closed doors and with no judicial oversight. The outcome is very largely determined by the prosecutor alone” (The Marshall Project). Only 2% of those facing federal charges go to trial, and that percentage drops every year (Pew). We now have a system where prosecutors use plea deals to simply assign sentences to the disproportionately Black and Brown people kidnapped by the American state.
The United States has the highest incarceration rate in the world (Equal Justice Initiative) and incarcerates a greater number of people than any other country. One out of every four people incarcerated today are locked up in the United States, despite the fact that it has less than 5% of the global population (ACLU). The vast majority of those incarcerated are neither convicted nor sentenced by a judge or jury. The American criminal justice system is exceptional in many ways, but it is hard to imagine that such a system is exceptionally just.
Decrying the drop in cases taken to trial doesn’t mean we should go back in time. American justice wasn’t just when slavery was the law of the land. American justice wasn’t just in the Jim Crow era, when “Black Codes” and the convict leasing system returned thousands of Black people to effective slavery. It wasn’t just in the 1950s and 60s, when civil rights protestors were convicted as criminals (Equal Justice Initiative). It wasn’t just before 1963, when poor defendants had no right to an attorney (Britannica), or before 2003, when gay sex was illegal in more than a dozen states (Britannica). The American justice system has never provided justice for the masses of Black and Brown people, queer and gender non-conforming people, or poor people in general. That today almost nobody receives even the formality of a trial is but the latest egregious chapter in a long, enraging story.
People in every country on Earth, from Azerbaijan to Zimbabwe, are taught that their country’s system is uniquely fair. Many Americans, despite all evidence, believe in the goodness of “our” system. Even after the uprisings of last summer, many seek minor reforms. If only we could modify the local police or change a few sentences of the legal code, the thinking goes, we could have the pure world of Law & Order episodes: intrepid cops who arrest the bad guy, a dashing prosecutor who uncovers incontrovertible proof, and a villain who tearfully confesses it all from the stand. The egregious reality of our court system suggests that we might instead look at limiting its power altogether. This means opposing incarceration, not only for drug or non-violent offenders but for everyone at all times (Prison Policy Initiative). This means opposing cages for people, whether they are in private prisons or prisons and jails run by the state. This means looking for transformation and justice within oppressed communities instead of demanding that prosecutors throw the book at alleged law-breakers (Teen Vogue).
Recognizing the lack of an effective right to a trial is one place to start.
Key Takeaways
Almost none of those charged with a crime go to trial. Instead, defendants are pressured into accepting plea deals.
In most cases, guilt isn’t established by a judge or jury. Instead, prosecutors are free to set sentences for suspects who plead guilty.
This means the right to a trial has effectively been written out of the U.S. criminal justice system.
RELATED ISSUES
1/6/2021 | End felony disenfranchisement.
10/29/2020 | Fight racist death row sentencing.
8/26/2020 | Be an active bystander.
PLEDGE YOUR SUPPORT
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Respect the Chicago hunger strike.
Though Chicago is home to some of the most vibrant urban forests, prairies, and wetlands, in 2020 it set the record for having the worst, unhealthy air quality streak in ten years, ranking even higher than busy cities like Los Angeles. Coupled with COVID-19, experts and advocates predicted the damage would hit Black and Brown communities the hardest (abc 7 chicago). In addition to the many contributing factors that make this city environmentally unsafe such as daily emissions stemming from rail, road, and air traffic, Little Village—a Black and predominantly Latinx neighborhood—soon will have to endure the harsh effects of a metal-shredding operation on top of the pandemic and daily exhaustion.
Happy Tuesday and welcome back to the Anti-Racism Daily. The hunger strike for environmental justice led by organizers in Chicago over the past month has inspired the heck out of me. Sometimes the injustices the world faces may feel insurmountable, and that we alone can't make an impact. But that should never stop us from trying. Three people started a hunger strike – and with that, a youth-driven movement that is likely to transform their community. Learn more in today's newsletter.
This newsletter is a free resource made possible by our paying subscribers. Consider giving $7/month on Patreon. Or you can give one-time on our website, PayPal, or Venmo (@nicoleacardoza). You can also support us by joining our curated digital community. Thank you to all those that have contributed!
Nicole
TAKE ACTION
Follow the efforts of the strike on Twitter at @CHIhungerstrike.
Research environmental organizations like weact.org to learn about the many ways to support environmental justice.
Consider: how does environmental conditions differ in your own city, town or neighborhood? Who are the leader(s) advocating for change?
GET EDUCATED
By Kashea McCowan (she/her)
Though Chicago is home to some of the most vibrant urban forests, prairies, and wetlands, in 2020 it set the record for having the worst, unhealthy air quality streak in ten years, ranking even higher than busy cities like Los Angeles. Coupled with COVID-19, experts and advocates predicted the damage would hit Black and Brown communities the hardest (abc 7 chicago). In addition to the many contributing factors that make this city environmentally unsafe such as daily emissions stemming from rail, road, and air traffic, Little Village—a Black and predominantly Latinx neighborhood—soon will have to endure the harsh effects of a metal-shredding operation on top of the pandemic and daily exhaustion.
Without the metal-shredder, Black and brown citizens residing on the southeast side of Chicago already are having to overcome a “moderate” air quality index (AQI) of 52. The United States Environmental Protection Agency (EPA) defines “moderate” as air potentially unhealthy to sensitive groups including children, the elderly, and people with pre-existing cardiovascular or respiratory health conditions (IQAir). In order to protect themselves from air pollution, these groups have no access to fresh air as it is recommended for them to keep their windows closed to avoid dirty outdoor air and reduce outdoor exercise. According to the EPA, the neighborhood surrounding the new scrap yard site is in the 95th percentile for diesel emissions, 90th for hazardous waste, and 80th for air pollution (grist).
“Many of our residents already have problems with respiratory issues because of the ongoing industry that is operating in our neighborhood. We’re just adding a lot more stress to our public health,” says Edith Tovar in July 2020, Little Village Environmental Justice Organization community organizer. (abc 7 Chicago).
With awareness of these health constraints, Mayor Lori Lightfoot gave Stephen Joseph, chief executive of Reserve Management Group, the go ahead in late 2020 to acquire General Iron, a metal-shredding company rebranded as Southside Recycling. Expressed in a detailed two-page agreement is a timeline of when Joseph could expect to undergo the move of the decades-old business from the north side, a predominantly white neighborhood, to the south side where people of color mostly reside beginning in early 2021. The car and metal-shredding operation was often cited for violations of air pollution in the white part of town. This prompted its relocation, instead, to the Black and Brown part of the city. Despite protests from residents about the environmentally racist move, Lightfoot signed the agreement and all but sealed the deal with Joseph and General Iron (Chicago Sun Times).
Beginning on February 4, 2021, the relocation of the metal-shredder did not sit well with the Latinx community who it would affect the most and thus, began a month-long hunger strike. Among those leading the strike was Oscar Sanchez, Breanna Bertacchi, and Chuck Stark with Sanchez and many other protestors willing to go without food for however long it takes.
“It is immoral, it is discriminatory, and we cannot allow [this plant to operate] in a pandemic when we can prevent it,” says Byron Sigcho-Lopez, a 25th ward alderman who joined the hunger strike (EcoWatch).
The EPA suspended its environmental justice investigation into whether Illinois discriminated against the predominantly Black and Latinx southeast side community after the initiation of discussions about an informal resolution agreement. According to the Chicago Tribune, Mayor Lori Lightfoot is looking for Biden and his administration to make the call of whether or not the scrap yard can be moved to the southeast side (EcoWatch).
Lightfoot finally reached out in response to the strikers via a letter on February 23 acknowledging the hunger strike and the environmental racism the neighborhood faces, but has yet to deny General Iron’s permit and has failed to commit to the hunger strikers demands. Last Thursday, more than two hundred protesters gathered on the streets of Chicago with signs that read “Stop General Iron” and face masks with the words “We deserve clean air!” and “Ecological devastation is immoral”. The scrap yard violated EPA’s standards in 2018, 2012, and 2006 and was regarded by white neighbors as a nuisance. Many of the speakers at the rally including students who attend George Washington high school stated that they should not have to starve themselves just to get their Mayor’s attention (The Guardian).
According to Dr. Susan Buchanan, public health professor at the University of Illinois-Chicago noted that the particular matter that often escapes these types of businesses can lead to severe heart and lung conditions. Joseph says that the pollution controls at the new site will be enough to keep residents safe as he feels like he and his company are not the enemy (The Guardian).
Kudos to those neighbors like Oscar Sanchez who are willing to sacrifice their physical and mental health for what they believe in. Sanchez lost about twenty pounds from participating in the hunger strike for thirty days, and though the hunger strike ended yesterday, he says that the fight is far from over.
“Think about somebody pulling into your home and wanting to kill or hurt those around you. You’re gonna put yourself in line, right? We’re risking our lives just by living here, of course we’re going to fight,” says Sanchez. “This fight for the southeast side is a fight for Chicago and a fight for Chicago is a fight for Illinois and the nation because no one else should suffer at the hands of pollution.” (Grist)
KEY TAKEAWAYS
In 2020, Chicago set the record for having the worst, unhealthy air quality streak in ten years, ranking even higher than busy cities like Los Angeles.
Little Village, a Black and predominantly Latinx neighborhood, soon will have to endure the harsh effects of a metal-shredding operation on top of the pandemic and daily exhaustion.
Mayor Lori Lightfoot gave Stephen Joseph the go ahead to acquire General Iron and move decades-old business from the north side, a predominantly white neighborhood, to the south side where people of color mostly reside.
Though the hunger strike ended yesterday, the fight for environmental justice is far from over.
RELATED ISSUES
10/11/2020 | Support climate justice.
7/12/2020 | Learn how air pollution exacerbates COVID-19.
3/2/2021 | Advocate for clean water.
PLEDGE YOUR SUPPORT
Thank you for all your financial contributions! If you haven't already, consider making a monthly donation to this work. These funds will help me operationalize this work for greatest impact.
Subscribe on Patreon | Give one-time on PayPal | Venmo @nicoleacardoza
Expand the court.
It happened. Justice Amy Coney Barrett was confirmed to the Supreme Court Monday evening (NPR). Judge Barrett, who is 48 years old, is likely to serve on the court for decades, solidifying a 6-3 conservative majority. It also gives her immediate power in several upcoming hearings this November that disproportionately impacts the livelihood of communities of color. This is the first time a Supreme Court nominee has been confirmed without a single vote from a major minority party since December 1869 (WSJ). Now that it’s official, inquiries on whether or not Biden, if confirmed, could expand the court, have snowballed into comprehensive calls for action.
Happy Tuesday and welcome back to the Anti-Racism Daily. Each day, we send one email to spark action – and dismantle racism and systemic oppression in the U.S. To support our work, you can donate one-time or monthly on our website, Patreon, Paypal or Venmo @nicoleacardoza.
You know, last night I opened my laptop after a long day of meetings to publish a whole different piece. And then, I checked the news. And I realized that you and I, dear reader, are going to be here for a while. Because we have a heck of a fight ahead of us for justice. If you are still reading then we're on the right track. Rest, hydrate, wash your hands and keep going. We will create the change we wish to see.
Nicole
TAKE ACTION
Sign the petition to adjust the composition of the judiciary.
Work to Flip the Senate by donating and volunteering to critical campaigns
Commit to voting – even if you feel defeated.
GET EDUCATED
By Nicole Cardoza (she/her)
It happened. Justice Amy Coney Barrett was confirmed to the Supreme Court Monday evening (NPR). Judge Barrett, who is 48 years old, is likely to serve on the court for decades, solidifying a 6-3 conservative majority. It also gives her immediate power in several upcoming hearings this November that disproportionately impacts the livelihood of communities of color. This is the first time a Supreme Court nominee has been confirmed without a single vote from a major minority party since December 1869 (WSJ). Now that it’s official, inquiries on whether or not Biden, if confirmed, could expand the court, have snowballed into comprehensive calls for action.
Expanding the size of the court, also known as “packing the court,” is when legislators move to change the number of judges confirmed to the court. This can happen at the state and federal level of the justice system – but is clearly focused on the Supreme Court. And this is constitutional: the number of Supreme Court Justices is not fixed, and Congress can change it by passing an act signed by the President. Article III, Section 1 of the Constitution states that “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish” (National Constitution Center).
And our earliest Presidents took full advantage of this. The size of the Supreme Court was changed six times from 1776 until 1869, wavering anywhere between five and ten seats (New York Times). Each time, by a President who needed to shift power to support their political goals, or to block incoming administration from shifting its stance. Read the specifics on the National Constitution Center website.
Those that feel strongly about the plan on both sides will reference the controversial plan by FDR, who aimed to expand the Supreme Court to as many as 15 judges for efficiency’s sake. But many felt that this was his attempt to garner support for his New Deal, and when voting patterns on the existing court changed, the case became a moot point (History). Regardless, it provided a cautionary tale that seems to haunt conversations about expanding the court today. How’s that for a spooky Halloween tale?
As a result, this constitutional act hasn’t been exercised on the federal level. But it’s important to note that packing – or unpacking – the court is a strategy used by both political parties on the state level. In fact, recent efforts to change the size of state courts have been led predominantly by Republicans. In 2016, the Republican legislature approved a measure to increase the size of the Arizona Supreme Court from five to seven justices, even though it wasn’t supported by Democrats or the judges themselves. A similar situation happened in Georgia, where the Republican-controlled General Assembly passed a bill to expand the court to nine justices. The bill also gave the Republican governor the power to fill the two new seats (Washington Post). Other recent efforts by both Democrats and Republicans have failed, often because of the opposition of the other party.
Some also argue that court-packing is similar to how the Republican party blocked President Barack Obama’s nomination of Judge Merrick B. Garland in 2016, which meant that the Supreme Court was acting with eight judges for over a year until the next election (NPR). Especially paired with the rush to confirm Judge Barrett before an election just four years later. Although the concept wasn’t exactly embraced by liberal political leaders, we can expect it to gain more traction with this confirmation.
But I’d like us to remember that this isn’t an issue of politics, but of people. Based on her decision on November 10, 20 million people could lose their healthcare if the Affordable Care Act is overturned – and in the midst of a pandemic, no less. This particularly impacts people with disabilities, who could easily be denied coverage and disability-related services from other healthcare providers (Progressive). A ruling on November 4 will decide whether private agencies that receive taxpayer funding for government services, such as foster care providers, can deny services to people who are LGBTQ+, Jewish, Muslim, or Mormon – and Judge Barrett is expected to vote in favor of the discrimination (Bustle). On November 9, the court will hear a case on immigration; an effort to make deportation proceedings more accurate and preserving “relief of removal”. Judge Barrett is likely to vote against immigrants (Bloomberg Law). And although there’s no date on the calendar, the anticipated overturning of Roe v. Wade would impact abortion and reproductive rights (NBC News).
All of these immediate decisions are only a glimpse of what may come from future cases. So conversations about expanding the court can’t end with this upcoming election, or this decade. Regardless of the outcome, we need to take a critical eye to our judiciary system and analyze what’s not just right historically or constitutionally, but ethically. If the government is designed to work for the life and liberty of its people, it must be realigned to suit its needs when its political leaders fail.
KEY TAKEAWAYS
Judge Amy Coney Barrett was confirmed to the Supreme Court Monday night
Her confirmation ensures a 6-3 conservative majority who will be voting on critical issues for communities of color, including healthcare, immigration and discrimination
Court-packing, or expanding the court, is a constitutional act of changing the number of court justices that's been implemented both federally and state-based
RELATED ISSUES
10/15/2020 | Understand Judge Amy Coney Barrett's stance on racism.
9/20/2020 | Make the justice system more diverse.
10/16/2020 | Abolish the grand jury.
PLEDGE YOUR SUPPORT
Thank you for all your financial contributions! If you haven't already, consider making a monthly donation to this work. These funds will help me operationalize this work for greatest impact.
Subscribe on Patreon | Give one-time on PayPal | Venmo @nicoleacardoza
Abolish the grand jury.
Many of us are still reeling from the grand jury decision that brought no charges against the police officer that killed Breonna Taylor, as we covered in a previous newsletter. And yet, of course, many of us were not surprised. We’ve seen this before. We’ve seen how the grand jury cleared the officer that killed Michael Brown in Ferguson (NYTimes), and how things haven’t changed since then. We’ve seen how rarely officers are convicted even if they do get charged (FiveThirtyEight). We have learned not to expect justice from our legal system.
Welcome back! Yesterday many of you emailed with one question: is there anything we CAN do to block this Supreme Court appointment? And aside from calling your senators, we don't have much power to exercise as citizens. But we can get more involved in other aspects of our justice system, which matters more than you may think. I was going to publish this next week, but I feel Jami's thoughtful analysis of the grand jury is a strong follow-up from our conversation yesterday. Read and let me know what you think.
Tomorrow is Study Hall – our weekly reflection on the topics we unpacked this week (and there was a LOT we covered). Send me your questions / thoughts by responding to this email.
You can help our work thrive by making a one-time or monthly contribution. Thank you to everyone that makes this newsletter possible.
Subscribe monthly or annually on Patreon
ps – the Anti-Racism Daily Podcast is here! I'll be hosting conversations on the most impactful ways to take action around critical current events, and interviewing inspiring changemakers. Listen to the trailer on Apple Podcasts or Spotify.
TAKE ACTION
Write to your state legislators asking to abolish the grand jury process for criminal indictments (Connecticut and Pennsylvania already have!)
Spread awareness about the injustice in the grand jury system, as many people do not understand how it works
Reflect: What privilege(s) may you have based on your identity that shapes your understanding of the criminal justice system?
GET EDUCATED
By Jami Nakamura Lin (she/her)
Many of us are still reeling from the grand jury decision that brought no charges against the police officer that killed Breonna Taylor, as we covered in a previous newsletter. And yet, of course, many of us were not surprised. We’ve seen this before. We’ve seen how the grand jury cleared the officer that killed Michael Brown in Ferguson (NYTimes), and how things haven’t changed since then. We’ve seen how rarely officers are convicted even if they do get charged (FiveThirtyEight). We have learned not to expect justice from our legal system.
“The police and law were not made to protect us Black and Brown women.”
Tamika Palmer, Breonna Taylor’s mother (VOA News)
Clearly, the grand jury process failed Breonna Taylor. But what is important to note is that it’s not that this grand jury failed her, it’s that all grand juries are inherently structured in a way that is unjust. At a grand jury, there are no defense attorneys present (that is, the defendant does not have access to counsel). There is no judge. The prosecutor is the one asking all the questions, the one who decides what to charge the defendant with, what sentencing to recommend, and whether to offer a plea deal (Harvard Law Review). In other words: all the power lies with the prosecutor, and the prosecutor works for the government as a district or state’s attorney, or in Breonna Taylor’s case, Kentucky Attorney General Daniel Cameron (NPR).
A grand jury differs in many ways from a trial jury. A trial jury is what we think of when we think of the word “jury”: a group of people that decides whether or not the defendant is guilty. This takes place in a courtroom with a judge, with lawyers for both the defense and the prosecution (US Courts). The trial itself is usually public, and the defendant’s counsel can call its own witnesses.
On the other hand, a grand jury happens before a trial. It consists of a group of 16-23 people that decides whether or not there is enough evidence to believe that the defendant has committed a crime (US Courts). As Stanford University law professor Robert Weisberg explains, “A grand jury doesn’t decide guilt or innocence. It decides the preliminary question of whether there’s enough evidence to justify [sending] him to trial in the first place” (Louisville Public Media). It’s an additional step, so it’s used for higher-order crimes. About half the states require a grand jury to press felony charges. In the other half, it’s up to the prosecutor whether to require a grand jury or whether to skip to a trial (FindLaw).
People have been concerned about the injustices inherent in the grand jury system for many years. England, from whom we inherited the system, by and large stopped using the grand jury in 1910s and formally abolished it in 1933 (Journal of Criminal Law and Criminology); its other former colonies, including New Zealand, Australia, and Canada, all have done the same (Slate). The United States has kept this process despite the overwhelming evidence that grand juries “do not (and cannot) protect the accused” (Cornell Law Review).
But these police shooting cases show that the problem is more complex than that. In Breonna Taylor’s case, the police officer was the accused (NPR). And yet he was the one protected by the process, because the grand jury system protects who the prosecutors choose to protect. In most capital criminal cases, they have no motivation to protect the accused—except when the accused are the police.
“Prosecutors work with police day in, day out, and typically they’re reluctant to criticise them or investigate them,” law professor Samuel Walker told The Guardian. In the Guardian’s analysis of 2015 police killings, they found that in one-third of the killings that were ruled as justified “the criminal inquiry work was done by the officer’s own police department, meaning the evidence used to decide if an officer should be prosecuted was prepared by the officer’s co-workers” (The Guardian).
"[Grand juries] are said to be 'putty in the hands of the prosecutor.' In other words, the prosecutor really tells them what he or she wants and they will go along with it,” legal writer Joshua Rozenberg told the public radio newsmagazine The World. Because of the prosecutor’s power in a grand jury, he added: “It must be even easier [to get an acquittal] if that is what the district attorney may actually want." And there are many other problems with the grand jury process that we don’t have space for here. (Harvard Law Review presents a thorough overview of other problems although they call for reform, not abolition.)
Kentucky Attorney General Daniel Cameron was supposed to be prosecuting the police officers but his actions show that he was defending them. “I never had faith in him,” Breonna Taylor’s mother, Tamika Palmer, wrote (NBC News). “I knew he had already chosen to be on the wrong side of the law the moment he wanted the grand jury to make the decision.” The court even released the tapes of the usually-secret grand jury proceedings because of a juror’s complaints against Daniel Cameron (NPR).
Cameron claimed the jurors decide independently of the prosecutor, but that is clearly not the case. In grand juries, the prosecutors shape the case: Cameron had only recommended the charge of wanton endangerment (CBS News). He claims he did this because he would not be able to prove other charges, were the case to go to trial—but convening a grand jury is an easy way to pass the blame onto jurors while also not holding the police accountable.
While a lot of energy is now devoted to defunding and abolishing the police and prisons, we also need to focus on the legal institutions that link these two systems. We need to eliminate the grand jury and reimagine our legal system in general. Though only an amendment to the Constitution could remove the grand jury on a federal level, many states could eliminate it through legislation (Al Jazeera). Connecticut and Pennsylvania have already abolished the use of a grand jury in criminal indictments (FindLaw), so I believe it is possible to make change, state by state.
So contact your legislators. Increase awareness. Promote understanding of the flaws in the system. The grand jury did not bring justice to Breonna, so we need to bring justice to the grand jury. It must be abolished.
KEY TAKEAWAYS
The grand jury is an inherently unjust system. It is a secret proceeding whose power lies in the hands of prosecutors who work for the government.
In one-third of “justified” police killings, the “evidence used to decide if an officer should be prosecuted was prepared by the officer’s co-workers” (The Guardian).
The grand jury did not bring justice to Breonna, but we need to bring justice to the grand jury. It must be abolished.
England and its former colonies have all abolished the grand jury system—except for the United States (Journal of Criminal Law and Criminology).
RELATED ISSUES
9/20/2020 | Make the justice system more diverse.
7/6/2020 | Abolish qualified immunity.
7/2/2020 | Remove police from our public schools.
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Understand Judge Amy Coney Barrett's stance on racism.
This week, the Senate holds confirmation hearings for Judge Amy Coney Barrett, who was nominated as the next Supreme Court justice appointment. As you watch, be sure to listen for how her confirmation may impact how the U.S. responds to this racial reckoning for decades to come.
Happy Thursday! Today I'm analyzing the Senate confirmation hearings and parsing out Judge Amy Coney Barrett's position on racism. I'm quite (un)surprised by her thoughts on the judicial system's responsibility to racial equity – give me a read and let me know your thoughts.
I'm excited to announce that the Anti-Racism Daily Podcast is here! I'll be hosting conversations on the most impactful ways to take action around critical current events, and interviewing inspiring changemakers. Listen to the trailer on Apple Podcasts or Spotify.
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Nicole
TAKE ACTION
Contact your senator and tell them there should be no vote on any Supreme Court nominee before January
Stay informed on the issues discussed during the confirmation hearings
Continue to recognize how racism affects the disproportionate impact of significant court decisions
GET EDUCATED
By Nicole Cardoza (she/her)
This week, the Senate holds confirmation hearings for Judge Amy Coney Barrett, who was nominated as the next Supreme Court justice appointment. As you watch, be sure to listen for how her confirmation may impact how the U.S. responds to this racial reckoning for decades to come.
The most divisive aspect of Judge Amy Coney Barrett’s potential appointment is abortion. During the confirmation hearings, Judge Barrett has evaded giving a straightforward answer on how she will approach Roe v. Wade during her appointment (The Atlantic). But we do know that Trump vowed to appoint justices who'd vote to overturn it. Anti-abortion advocates are celebrating both him and Judge Barrett. And in her past work, Judge Barrett has cast votes opposing rulings that struck down abortion-related restrictions (Reuters).
Although abortion may feel like a separate issue when analyzing the significant factors at play in this election, it’s not. The right to abortion affects everyone but disproportionately impacts communities of color. We need to remember that race is a critical component of reproductive justice. In fact, because the abortion movement has historically been a white-led movement, it’s easy to dismiss how many people of color are impacted by these decisions. Read more in a previous newsletter >
A study in 2008 found that abortion rates for Black women are almost 5x that for white women. The abortion rate among Hispanic women is 2x that for white women. A more accurate statistic for understanding the likelihood of abortion is the number of unintended pregnancies, which is also disproportionately higher for women of color (Guttmacher). Much of this is attributed to difficulties communities of color may face in accessing high-quality contraceptive services, one of many health disparities that affect our maternal health and reproductive rights. Many states with a high population of communities of color have greatly restricted abortion access. Explore a state-by-state map via Planned Parenthood >
Another urgent issue on hand is the Affordable Care Act. The Supreme Court is currently set to review the act on November 10th, just a week after the election. Democrats believe that Republicans are rushing the nomination through so that Judge Barrett would be on the court to rule against it (NPR).
Ending the Affordable Care Act would impact millions of people and have devastating consequences amid an economic downturn and global pandemic. The 133 million Americans with pre-existing health conditions may be turned away from other forms of care or be forced to pay high premiums. An additional 9 million could lose access because of the loss of federal subsidies that make accessing it affordable. Twelve million more adults could lose Medicaid coverage. You can read a more comprehensive breakdown in the NYTimes.
These initiatives worked to decrease coverage disparities between white communities and communities of color. The difference between Black and white adult uninsured rates dropped by 4.1 percentage points, while the difference between Hispanic and white uninsured rates fell 9.4 points since the ACA went into effect. Also, Black adults living in states that expanded Medicaid report coverage rates and access to care measures as “good as” or “better” than what white adults in non-expansion states report (The Commonwealth Fund). Although the ACA is far from perfect, it’s unclear what the future will look like if it’s disbanded, particularly a week after an election.
When asked about race directly during the confirmation hearing, Judge Barrett stated that she thinks “it is an entirely uncontroversial and obvious statement, given as we just talked about the George Floyd video, that racism persists in our country”. But she also said that she believes "making broader diagnoses about the problem" is up to lawmakers, not judges (NPR). But that doesn’t sit well with me. If you read our newsletter, you’ll note that major Supreme Court decisions influence systemic issues upholding racism and oppression in our society. We’ve outlined “Milliken v. Bradley” and its impact on school funding disparities. We discussed how the verdict of “Monroe v. Pape” and how the Supreme Court’s revision in 1982 defined qualified immunity. And we’ve analyzed how the ruling on “Shelby County v. Holder” makes it difficult for people to vote in this upcoming election.
This isn’t meant to downplay the historical significance of major laws written into effect that, too, have changed the course of racial equity. But the power of our judiciary system needs to be wielded alongside policy to ensure that laws are implemented and enforced.
Supporters of Judge Amy Coney Barrett will emphasize that Barrett cannot be racist because she has two adopted Black children from Haiti (Washington Post). But having Black children doesn’t mean that Judge Barrett will vote against racist policies. And, more broadly, having Black children – or being in proximity to any Black person – doesn’t mean that people still can’t have racist values, beliefs, or behaviors. Judge Barrett emphasized that she wept along with her children while watching the George Floyd video. But that does not seem to shift her views of the court’s responsibility court to take action (Politico). Remember that proximity to communities of color does not ensure their protection. Read more in our newsletter on playing the “friend card” and our follow-up Study Hall question on playing the “family card” >
Also, note how often people justify Judge Barrett’s empathy not by her voting history, but because she is a mother. Regardless of her children’s race, it’s far too common that women are valued by their contributions to family rather than their work ethic. As we continue to unpack the intersectionality of race, gender, and other identities, consider how voters’ depiction of Judge Barrett as a woman skews their perception of her work. In addition, consider how “being a good mother” is wielded as a defense for any racist rhetoric, which is often used to bypass harm inflicted by white women.
As the confirmation hearings continue to unfold, watch for more conversations on critical issues regarding racism, including immigration and the environment. But remember that racism, not race, causes the disparities in how these decisions impact communities of color. We deserve a judge that holds the judiciary system accountable for how racism will affect rulings on some of the most critical decisions in our future.
KEY TAKEAWAYS
The Supreme Court nominee Judge Amy Coney Barrett holds a generally conservative view, which can negatively impact communities of color
The most critical decisions Judge Amy Coney Barrett may make in her appointment need to be analyzed with the lens of how racism persists in the U.S.
The U.S. Justice system has greatly influenced racial equity throughout history – and will continue to do so
An individual's oroximity to Blackness – and other people of color – does not mean that person isn't racist
RELATED ISSUES
9/20/2020 | Make the justice system more diverse.
7/6/2020 | Abolish qualified immunity.
7/2/2020 | Remove police from our public schools.
8/7/2020 | Don't play the friend card.
PLEDGE YOUR SUPPORT
Thank you for all your financial contributions! If you haven't already, consider making a monthly donation to this work. These funds will help me operationalize this work for greatest impact.
Subscribe on Patreon | Give one-time on PayPal | Venmo @nicoleacardoza
Make the justice system more diverse.
The death of Justice Ruth Bader Ginsberg is heart-wrenching. Her loss is likely to transform the upcoming election. Although our influence on the federal Supreme Court nomination is limited, there's a lot more we can do to promote judicial diversity throughout state and federal courts. Today we dive into the importance of representation and the true weight of this election.
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– Nicole
TAKE ACTION
1. Vote this November for a President that is more likely to choose a diverse, liberal Supreme Court nominee. Hint: it’s not Trump.
2. Nominations for Supreme Court justices are confirmed by the United States Senate, which is currently a Republican majority. It takes four seats to flip the Senate to a Democratic majority, which, based on current news, is more likely to confirm a liberal judge. Choose a Senate state battleground and support a candidate more likely to confirm a diverse, liberal Supreme Court nominee (Ballotpedia). Donate, phone bank, or volunteer if you’re in-state.
3. Support the MCCA LMJ Scholarship, which grants scholarships of $10,000 to students for their first year of law school to increase the diversity pipeline. Learn more and donate.
GET EDUCATED
Ruth Bader Ginsburg, the second woman to serve on the Supreme Court known for her advocacy for women’s rights, passed away Friday from complications from metastatic pancreatic cancer. She was 87 (NYTimes).
And as the nation mourns the loss of this trailblazing individual, the Trump administration is wasting no time to appoint a replacement. Trump released his shortlist of potential judges a couple of weeks ago, many of whom are men, nearly all are white, and all represent conservative views and values (NYTimes). If the administration does move forward, it will ensure that our Supreme Court has a conservative majority for years to come. Six of the nine seats would be held by Republican appointees (NYTimes). Justice Ginsburg was keenly aware of this, and days before her death, she dictated this statement to her granddaughter Clara Spera: "My most fervent wish is that I will not be replaced until a new president is installed” (NPR).
Our nation is in the midst of an upheaval, one that is likely to transform the fabric of our democracy. That will be cemented through the decisions of our federal judicial system, particularly our federal Supreme Court. The added weight of choosing a Supreme Court nominee is likely to upend this election. Read more about the most significant Supreme Court cases in our history, many of which defined the rights and opportunities for marginalized individuals (Business Insider).
Although our Supreme Court justices hold significant power in the federal system, we can also do more to build a more diverse pipeline and increase representation across the federal justice system. The Supreme Court makes less than 100 decisions on cases each year, and although they are critical, many more are decided by the 94 federal district courts, and the 13 circuit courts that act as the first level of appeal (U.S. Department of Justice). It's critical we increase representation here, too, as we try to chart a more equitable future for us all.
Let’s start with the facts. As of 2019, more than 73% of sitting federal judges are men. 80% identify as white. Of the 20% that identify as people of color, 10% are African American, 6% are Hispanic/Latinx representation, and 2.6% are Asian. And there are only two American Indian judges sitting on the federal bench, making up just 0.1 percent of the federal judiciary compared with 0.7 percent of the U.S. population. In addition, less than 1% of judges publicly identify as LGBTQ+ (Center for American Progress). The first judge of color on the Supreme Court, Justice Thurgood Marshall, was appointed in 1967, 191 years after the founding of America (Washington Post).
The Minority Corporate Counsel Association (MCCA) has an active list of judges based on race/ethnicity and gender in each district, and a list of the diversity of judges appointed by each president through history (MCCA). The authors of the Center for American Progress study note that there’s no publicly available data on judges with a disability, which is “problematic and deserves more attention” (Center for American Progress).
Data for state courts is also disappointing. Only 15% of state supreme court seats nationwide are “held by individuals who are Black, Asian, Latino, or Native American,” and women hold 36% of state supreme court seats. This means that 24 states currently have an all-white supreme court bench, including eight states in which people of color are at least 25% of the state’s population (Brennan Center).
A few former presidents – both Democratic and Republican – have committed to diversifying the federal judiciary, including President Carter and President Clinton. But President Obama made the most significant strides. Out of his 324 judicial nominees during his presidency, over 60% were people of color, women, and sexual or gender minorities. He also nominated and confirmed more women than any other president in history (Center for American Progress). These efforts have regressed during the current administration; President Trump’s judicial picks, who have been 91% white and 81% male, are “the least racially and ethnically diverse of any presidential administration over the past 30 years” (Center for American Progress).
This might be considered common sense, but it’s important to note: the diversity of a federal judiciary increases the likelihood that decisions will represent the needs of marginalized communities. Judge Tashima, who was appointed in 1996, lived in an internment camp as a child during World War II. Read more about internment camps and the use of the word “internment” in a previous newsletter. He spoke about how that experience influenced his decision-making. The data proves it: he voted for more equal protection opinions since being appointed compared to his Ninth Circuit colleagues (California Lawyers Association).
“Because we are all creatures of our past, I have no doubt that my life experiences, including the evacuation and internment, have shaped the way I view my job as a federal judge and the skepticism that I sometimes bring to the representations and motives of the other branches of government”.
Atsushi Wallace Tashima, Senior United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, via California Lawyers Association.
Furthermore, studies conducted on federal appellate courts have found that one female judge’s presence will increase the likelihood that male judges will make decisions for cases involving sexual harassment or discrimination will be in favor of the defendant. It also found that having at least one Black judge increases the likelihood that non-Black judges will support plaintiffs claiming violations of both the Voting Rights Act and affirmative action cases (Princeton).
A more diverse court would also sway public trust, which is increasingly important as younger voters feel disillusioned by our political system. At the 1999 National Conference on Public Trust and Confidence in the Justice System, three pressing issues were identified: unequal treatment in the justice system, high cost of access to the justice system, and lack of public understanding (Perceptions of Fairness and Diversity in the Florida Courts). A 2014 Pew Research Center survey found that 68% of Black people feel that the courts mistreat Black people, compared to 27% of white people, and 40% of people who identify as Hispanic (Pew Research Center).
“People look at an institution and they see people who are like them, who share their experiences, who they imagine share their set of values, and that’s a sort of natural thing and they feel more comfortable if that occurs.”
Elena Kagan, Associate Justice of the Supreme Court of the United States, via NYTimes.
Part of creating a more diverse federal judiciary is diversifying the pipeline, which means dismantling the historical racism and discrimination embedded in our education system. It also means recruiting and retaining candidates in associate positions. Despite progress from years prior, recent data indicates that outcomes have stagnated, and in some cases, regressed (NYC Bar). A particular concern is attrition. In 2016, 36.2% of first-year associates represented marginalized communities, but by the eighth year, that percentage dropped to 20.5%, a significantly higher attrition rate than white associates during the same period (NYC Bar). And public criticism of the federal judiciary system can dissuade talented candidates from pursuing future opportunities.
But progress isn't completely unfounded. Consider the latest news from Colorado. In the past year and a half, Colorado’s Democratic governor has appointed more Black women to the statewide bench than his 42 predecessors combined (Essence). There are currently 8 Black women judges serving concurrently on Colorado’s statewide judiciary. In the world of business, the MCCA reports that the number of female general counsels and general counsels of color at Fortune 1000 companies is the highest recorded in the past 15 years (law.com).
By January 2021, over 200 federal will be eligible for senior status, which means new candidates can take their place. And of those 200 judges, more than half are white males (Center for American Progress). Despite our outrage over the federal Supreme Court composition, deciding who to nominate is up to the president. It’s up to us to use our voices to influence decisions on the federal and state level and invest in diverse candidates to support qualified candidates.
Key Takeaways
The death of Justice Ruth Bader Ginsberg has made the appointment of a new Supreme Court justice a critical component of the upcoming election
Efforts to increase representation in the federal judiciary have been dismantled by the Trump administration
Diversity of the federal judiciary influences public perception of the political system
Increasing the diversity pipeline can help ensure more diverse candidates are nominated and confirmed
We must vote for a president that will nominate a diverse Supreme Court justice candidate, and ensure a Senate that's more likely to confirm one
RELATED ISSUES
9/9/2020 | Make the census count.
8/9/2020 | Understand the unemployment gap | COVID-19
7/23/2020 | Know our racist presidential history.
7/21/2020 | Honor the legacy of Rep. John Lewis.
7/20/2020 | Protect your community from the harm of gentrification.
PLEDGE YOUR SUPPORT
Thank you for all your financial contributions! If you haven't already, consider making a monthly donation to this work. These funds will help me operationalize this work for greatest impact.
Subscribe on Patreon | Give one-time on PayPal | Venmo @nicoleacardoza