University of Baltimore School of Law
Submissions for Law Review’s Fall Symposium:
(1) Jessica Blumberg (Student)
SILA president, Honor Board Member, VP of Mental Health Alliance of UB, Race and the Law former student
Discrimination After Death: An Insider's Reflection of the Life Insurance Industry's Racial Bias
America’s unfair relationship between minority citizens and the life insurance industry has undergone major positive changes with the development of new communication and information technologies. However, remnants of the repugnant social norms of regional, racial, and scientific discrimination remain in society today in forms of implicit bias and unchecked data and statistics. Left to their own devices, insurance companies have proven to frustrate consumers by hand-selecting policyholders relying on risk narratives instead of risk evaluations.
In response, states adopted a model regulating life insurance individually through a State Insurance Commissioner to reliably represent each state’s interests. In a highly competitive business, companies have been advocating to hasten the work flow, often times referring to its current state as archaic. But to what extent would speeding up the process benefit the consumer? Currently, we are dangerously close to an insurance interstate compact that would approve a product in all fifty states in one fell swoop.
On one hand, the interstate compact could be entertained as innovative. On the other hand, the attempt to push products through one body of well-known officials could be a disingenuous side step over state regulation reverting to a business-favored process serving institutions first and consumers second. In part I, this paper will offer a brief overview of the life insurance industry’s discriminatory past broken down into region, race, and then risk. Part II covers the legality of insurance regulation and the long tug of war over regulation between the federal and state system.
Finally, Part III examines why discrimination will increase under the interstate compact regime rather than state specific rules. This paper will discredit the main argument supporting the interstate compact that the slow process of approving life insurance will not work in today’s fast paced world by showing that the thorough process used today is purposeful. This paper will prove that discrimination will increase under the interstate compact and thus all regulating power should reside in the insurance commissioner of each state. After generations of discrimination in the life insurance industry the interstate compact threatens to reduce our current inclusive and policy holder focused procedure, equip with checks and balances, to a mere lull in the timeline of a crooked enterprise.
(2) André Douglas Pond Cummings
Associate Professor of Law, University of Arkansas at Little Rock, William H. Bowen School of Law
Privately Owned Prisons: Perpetuating the Persistent Tragedy of Slavery in the United States
The Thirteenth Amendment to the United States Constitution states:
"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction."
The phrase “except as punishment for crime,” has enabled and emboldened the perpetuation of chattel slavery in the United States amongst its population of prisoners. Dating back to the Convict Lease program and the Black Codes that developed shortly after the Thirteenth Amendment was ratified in 1865, United States policymakers have used this exception to re-enslave millions of black Americans through today. Indeed, with 2.3 million prisoners locked up in the United States in 2019, the U.S. stands as the world’s foremost incarcerator, both in raw numbers and per capita. No nation comes close to imprisoning more of its citizens.
The proliferation of privately owned, for-profit, prison corporations has exacerbated the problem of enslaving U.S. citizens in our jails and prisons. Driven by a profit maximization motive and beholden to shareholders expecting high returns on their investment dollar, private for-profit prison corporations buy and trade U.S. prisoners as commodities and enact pernicious policies and rules that enhance profits at the expense of prisoner safety and well-being. Particularly perverse are the private prison contracts with multinational corporations to produce products and goods through prison labor, where the prisoners are paid nothing (in some states) or very little (in most states) in return for lucrative payments that go directly to shareholders and corporate executives. Slavery continues in the United States as imprisoned human beings, disproportionately black and brown citizens, are forced to work without pay for corporate profit.
(3) Cynthia Boyer
Assistant Professor, Institut Maurice Hauriou
From Liberalism to Neoliberalism, the Constitution and the legacies of slavery in the criminal justice system
Racial inequality through slavery is intrinsically linked to the formation of the United States as an independent nation and its historical evolution; it is in its essence and is its corollary. This social construction, created to intellectually and ethically legitimize the determination of relationships between individuals in a perspective of subordination, has developed an institutional system that has been articulated over the decades on this foundation of domination. The paradox rests on the liberating political liberalism and creator of individual liberties that constituted a fertile ground for the legitimization of a whole system of oppression.
Despite the progress made following the end of segregation through U.S. Supreme Court decisions, such as Brown v. Board of Education, Loving v. Virginia, and Reynolds v. Sims, these various, though significant, rulings rooted in the civil rights movement are characteristic of a shift in the treatment of inequality. The inequalities inherent in an institutionalized system articulated on the foundations of slavery have evolved into a social perspective of unequal issues yet the legal system is still deeply affected by its roots and foundations. How have the U.S. Constitution and its jurisprudence been affected by slavery, especially through its legal system?
This article will thus tackle this issue through the prisms of Critical Race Theory with a focus on the criminal justice system. Thus, the first part aims to examine the impact and legacy of slavery on the U.S. Constitution.The interference of politics in the judiciary, first through the advent of Liberalism and since the 1970s its progeny Neoliberalism, has led to disparities in the judicial system deleterious to African Americans, and by raising issues of constitutionality these issues and controversies will be probed. The second part will study racial inequalities in the current functioning and structure of the criminal justice system, based on the notion of domination with a constitutional anchor.
(4) John Bardes
Graduate Student in History, Tulane University
Mass Incarceration before Emancipation: Slave Penology in Louisiana, 1805 – 1862
The incarceration of enslaved people seems at once paradoxical and redundant: slaves were already prisoners, with no freedoms left to revoke. Indeed, historians have traditionally assumed that enslaved people were generally not incarcerated, and that specialized penal practices directed at African Americans emerged only after the Civil War. Theories of prison development in the traditions of both Marx and Foucault suggest the impossibility of prisons for the enslaved.
Yet my analysis of over 50,000 prison admittance records from Louisiana demonstrates that slaveholders incarcerated vast numbers of enslaved people, often for months and years, within a dense network of specialized, publicly funded slave prisons. Hardly designed haphazardly, these facilities borrowed penal practices from the slave prisons of Jamaica and Saint-Domingue (Haiti), and incorporated ideas from American and European penitentiary theorists. By 1820, nearly 2% of enslaved people living in New Orleans were incarcerated at any moment – comparable to Louisiana’s contemporary African American incarceration rate. Furthermore, many of these slave prisons and their practices survived well into the twentieth century, repurposed as facilities for disciplining wageworkers convicted of vagrancy.
These findings present major implications for the studies of prison development, post-slavery punishment, and the underlying social origins of present-day mass incarceration. First, these findings suggest that scholars have overstated the irreconcilability of slave and prison, and for some enslaved communities, incarceration was a regular facet of life. Second, these findings reveal a transatlantic exchange of slave penal theory and practice, between slave societies. Third, these records demonstrate that post-slavery penal systems in the southern United States had important antecedents, rooted in nuanced antebellum efforts to reconcile penal theory, proslavery ideology, and the particular needs of slavery capitalism.
(5) Daniel N. Clay
Assistant Professor of Criminal Justice and Legal Studies, Elmira College
Slaves of the State: Forced Servitude and the Return of Inmate Pay to the State
Contrary to popular belief, the Thirteenth Amendment to the U.S. Constitution did not outlaw slavery in its entirety. Instead, it made slavery permissible as a punishment for crime. Given the racial disparity in America, prisons have capitalized on this loophole. Inmates in government-run correctional facilities are forced to cook food, perform janitorial duties, wash laundry and conduct a range of other daily operations necessary for prisons to function. In addition, many inmates are forced to engage in manufacturing of items for government and non-profit agencies, ranging from furniture to clothing – all at a minimal wage (between 33 cents and $1.41 per hour). Inmates who refuse often face disciplinary measures, including solitary confinement.
While most states afford some minimal wage (5 cents per hour in some states), as of 2018 prisoners in eight states – Alabama, Arkansas, Florida, Georgia, Mississippi, Oklahoma, South Carolina and Texas – are not paid at all for their labor in government-run facilities; making them truly slaves of the state. Of the states that pay inmates for their forced labor (averaging between 14 and 63 cents per hour as of 2017), inmates are essentially forced to return their pay back to the state to either compensate victims or, more commonly, to pay for essential products and services, including: soap ($1.45-$4.75), razors ($7.65), toothpaste ($2.90-$4.25), tampons ($5.55 for 2), etc. Put in perspective, a female inmate making the low-end average of 14 cents per hour would have to work nearly over 39½ hours to afford two tampons from the prison commissary.
While this alone is shocking, prisoners also must return their “pay” for medical services in which a co-pay ($3-$25) is charged for every “instance of care,” meaning a prisoner who get injured and is (1) transported to the hospital, (2) sees a doctor, (3) gets an x-ray, and (4) gets two prescriptions would, in Massachusetts, owe the state four $25 co-pays ($100); however, it is important to note that under federal law medical care cannot be withheld due to a prisoner’s inability to pay. Yet again, a prisoner’s wages are returned to the state for basic living expenses – rending the average prisoner a forced unpaid worker (slave) of the state.
In a 1992 study commissioned by U.S. Senator Harry Reid on the question of paying prisoners minimum wage, the U.S. General Accounting Office concluded “minimum wage for prisoner work [in its current form] is unaffordable, even if substantial user fee (e.g., charges for room and board) were imposed on the inmates.” Unfortunately, little has changed in the criminal justice system as mass incarceration continues. However, there has been one beacon of hope. In 2018 when Colorado voters were asked to amend the state’s constitution to say: “There shall never be in this state either slavery or involuntary servitude,” 65% voted “Yes.” While Colorado still pays just cents per hour and charges for living expenses, no prisoner can be punished for their refusal to work. While this is a start towards full abolition, in 49 states slavery still exists.
(6) Cecil Hunt
The University of Illinois at Chicago John Marshall Law School
Feeding The Machine: Private Prisons and the Commodification of Black Bodies In the Age of Mass Incarceration
For 400 years of the American experience, private white industries have exploited black bodies on a grand scale to the enormous benefit of building the American industrial economy and creating enormous public and private profits. The latest iteration of this historical systemic practice is the phenomenon of mass incarceration and private profiteering from this carceral system, which is fueled by the continual feeding of black and brown bodies into its corporate machine.
The central thesis of this paper is that there is a straight historical line from slavery, to the Black Codes, to convict leasing, to Jim Crow segregation, right up to the contemporary practice of mass incarceration, private prisons, and private profiteering by companies that exploit the prisons themselves, the prisoners within them, and their families who subsidize the cost of their incarcerated loved ones.
The same large corporate enterprises that build and own private prisons have seized upon a new profiteering opportunity to expand their empires: commodifying brown people immigrating from the Southern border and imprisoning them in low-cost detention facilities that are overcrowded and squalid. These facilities not only contain men and women, but also children and babies, many of whom have been forcibly separated from their parents.
Mass incarceration, private prisons, and private immigration detention facilities are all contemporary manifestations of America’s original sin, and the American legacy of slavery and degradation of black and brown bodies. There are no solutions to these problems without first recognizing them in the larger historical context of American greed and bigotry. White denials of this racial historical reality only make the problems worse. But in the darkness, there are small streams of light. Just like in the Civil Rights movement, the voices of anti-racists seem to be waking up in increasing numbers and joining the chorus of opposition. In the struggle, their participation gives us strength to continue the fight even in the face of overwhelming odds and gives us hope for a better tomorrow.
(7) Jeff Schmitt
University of Dayton, Associate Professor of Law
Taking Slavery Seriously in Constitutional Law
Before the Civil War, a national consensus firmly held that the Constitution granted Congress no power to regulate slavery within the states. As late as 1861, a newly-elected President Lincoln even offered to sign a constitutional amendment disclaiming any power to abolish slavery in the southern states, because he thought it was already “implied constitutional law.” It is thus impossible to understand constitutional doctrine, and especially the division of power between the states and federal government, from this era without appreciating the role of slavery. And yet, many discussions of constitutional history attempt just that. Revisionist accounts of the historical meaning of the Commerce Clause, for example, advance implausibly expansive interpretations of federal power only by ignoring the national consensus on slavery. A growing number of revisionist scholars now even go so far as to argue that unlimited federal power is fully consistent with the Constitution’s text, structure, and history. This scholarship, however, simply masquerades normative and living constitutionalist arguments as history. By ignoring the centrality of slavery to the original constitutional order, such revisionist historical scholarship whitewashes history and rescues originalism from its association with constitutional evil.
(8) Jane Murphy
Laurence M. Katz Professor of Law, University of Baltimore School of Law
‘Vicious and Remorseless’: The Lasting Impact of the Super Predator Myth on Mass Incarceration
The myth of the “super-predator” has driven much of the enormous increase in incarceration over the last 40 years. This theory, often associated criminologist and political scientist John DiIulio, built on a long history of racist stereotypes that viewed African Americans, particularly male youth, as more violent and prone to commit crimes. In the mid 1990s, Dilulio predicted a juvenile crime wave coming as a result of s a “new breed” of offenders, “kids that have absolutely no respect for human life and no sense of the future ... stone-cold predators” who are “fatherless, Godless and jobless.”
The super predator myth was embraced and popularized throughout the '90s by other academics, politicians and the media. Although predictions of a juvenile crime wave did materialize and the super predator theory was repudiated, its impact is far-reaching and catastrophic. This paper begins by exploring the links between the super predator myth and mass incarceration. It will begin by placing this myth in historical context as part of a series of racist tropes that were used to justify discriminatory treatment of African Americans.
In Part II, the paper will describe the criminal justice policies that resulted from the dissemination of this myth and the resulting impact on state and federal prison populations. In particular, the paper will focus on the creation of a substantial “juvenile lifer” population, those convicted of crimes as children and harshly sentenced in the mid-1990s. This section will examine the devastating impact of subjecting children to adult prisons for long sentences on those incarcerated, their families and communities.
Finally, in Part III, the paper will look at the efforts to respond to the harmful impacts of these misguided policies that sent thousands of children to die in jail. These responses include a series of Supreme Court decisions beginning in 2005 that, based on adolescent brain science, banned the death penalty and severely limited the use of life-without-parole sentences for juveniles. Many states have also responded by reforming parole practices and providing judicial remedies intended to make opportunities for release more meaningful for juvenile lifers. The paper will conclude by evaluating the efficacy of these reforms and making recommendations for further legal and policy changes to address the lasting harms caused by the super predator myth.
(9) Arnelle Devallon (Student)
Howard University School of Law
Cell for Sale: Why the U.S. Should End Money Bail Practices
Throughout the history of the United States, numerous policies have been enacted, changed, and repealed to reflect the changing position of African Americans in society. Through political institutions and legislation, policies have been put in place that attempt to keep African Americans in the same subordinate position upon which this country was founded. Tough crime laws have contributed to mass incarceration, and, like slavery, African Americans are most negatively impacted. Laws like the Anti-Drug Abuse Act of 1988 and the 1994 Crime bill are examples of legislation that on the surface, show no bias but have led to mass incarceration. The growing issue of mass incarceration has become linked to a number of other issues.
Pretrial detention and the use of money bail are longstanding practices in the American criminal justice system. The Comprehensive Crime Control Act of 1984 authorized preventive pretrial detention and served as a catalyst for the growing number of defendants incarcerated before trial. Defendants who are not fortunate enough to make bail can spend months, if not years, in pretrial detention without ever being found guilty of a crime. Our criminal justice system enforces the idea of “innocent until proven guilty” however, the bail bond system criminalizes the individual at the very early stages of their encounters with the criminal justice system, creating a reality of “guilty until proven innocent” for poor and minority defendants.
(10) Mikah Thompson
University of Missouri-Kansas City/Associate Professor of Law
Just Another Fast Girl: Exploring Slavery’s Continued Impact on the Loss of Black Girlhood.
A troubling legacy of the American chattel slavery is the justice system’s continued failure to provide adequate protection to African-American crime victims. This piece focuses on the law’s historic unwillingness to shield Black girls from acts of sexual violence. During slavery, lawmakers refused to criminalize rape committed against Black women and girls based not only on the fact that they were considered property but also on stereotypes about their sexual aggressiveness and credibility. Even though the law now criminalizes the rape of Black women and girls, African-American rape survivors encounter more skepticism and hostility when they come forward with their stories compared to their White counterparts. Survivors experience negative reactions not just from White society but also from their own African-American community. Stereotypes about Black girls also influence the players in the justice system, including prosecutors, defense attorneys, and jurors. In light of the recent shift in societal attitudes ushered in by the #MeToo and #TimesUp movements, it is important to consider whether our culture can now move away from the stereotypes that have often left Black girls unprotected for centuries.
Part I of this piece will describe slavery-era stereotypes of Black women and girls that resulted in the non-criminalization of sexual violence against them. These stereotypes (namely, that Black women and girls are prone to dishonesty and sexual promiscuity) served to justify the rape of Black girls as well as the forced breeding of enslaved persons. Part I will also discuss the law’s failure to recognize enslaved survivors of rape as competent witnesses who could testify against Whites. Part II will demonstrate that traditional stereotypes about Black girls continue to impact society’s and the justice system’s willingness to protect them. Researchers have found that African-American girls are perceived to be older and more sexually advanced than they actually are. Moreover, several studies have established that White girls and women who make accusations of sexual violence are perceived to be more truthful than Black girls and women who make such accusations. Part II will establish a link between the perceptions Black girls face today and the stereotypes that resulted in the dehumanization of Black girls during slavery. Today, these stereotypes affect prosecutorial decisions, attorneys’ questioning of trial witnesses, and jurors’ witness credibility assessments. Part III will discuss high-profile cases demonstrating the impact of the stereotypes, most notably the first criminal trial of singer Robert “R.” Kelly. Finally, Part IV will consider the impact of the #MeToo and #TimesUp movements on the stereotypes that have negatively affected Black girls since slavery.
(11) Sandra L. Rierson
Associate Professor, Thomas Jefferson School of Law
The Three-Fifths Clause, Dred Scott, and the Fourteenth Amendment: Preserving an Inclusive American Citizenship.
President Trump has struck a hard line on immigration matters throughout his presidency and during his campaign for the office. He has literally and figuratively challenged the notion that every person born in this country is an American. Trump has called the principle of birthright citizenship, which is enshrined in the Fourteenth Amendment to the United States Constitution, “frankly ridiculous.” He has also stated, via Executive Order, that states may need to know which people living within their borders are U.S. citizens, to enable them to draw legislative districts “based on the population of voter-eligible citizens,” rather than the number of persons. These changes would have a two-fold purpose and effect: 1) to restrict and redefine American citizenship, effectively stripping citizenship from vast numbers of non-white individuals; and 2) to redistribute political power in accordance with this racialized notion of citizenship.
Population has been used as the metric for calculating representation in the U.S. Congress since the Constitution was ratified. Infamously, the Constitution as it was originally written included slaves in that population figure at a rate of three-fifths of a person. With equal infamy, the Supreme Court held in Dred Scott that, because of their race, Black Americans could never be citizens of this country, even if they were free. The Fourteenth Amendment overruled Dred Scott and superseded the Three-Fifths Clause, directing that Congressional apportionment be based on the “whole number of persons in each State,” and further that citizenship extends to “all persons born or naturalized in the United States.” This expanded definition of citizenship has enabled the United States to evolve into the diverse, dynamic country that it is today.
The United States cannot and should not forget its history, which is rooted in the sin of slavery. The Fourteenth Amendment did not erase that sin, but it did bring the nation one step closer to realizing the ideal that “all men are created equal.” This country cannot permit the forces of racism and nativism to turn back the clock.
(12) Tammie Szafran
Public Defender Service for the District of Columbia, Appellate Division/Paralegal Specialist.
Anti-Blackness in the Courts: Reframing Colorblind Theory as a Totem of White Supremacy.
Since Brown v. Board of Education, the United States Supreme Court has applied colorblind ideology as its race-based decision-making framework, reflecting contemporary assumptions about the presence of racism and its impact in today’s society. Because colorblind ideology is itself a form of racism, judicial analyses based on this theory do little more to address racial disparities in the United States and further justice than simply pretending that racism no longer exists or that its disparate impacts have been thoroughly addressed. Our judiciary must be compelled to understand and apply an anti-racist lens in order for us to truly achieve a “post-racial” society and to adequately comply with the constitutional requirements of equal protection and to address and redress all lingering “badges and incidents of slavery.” Professor Ian Haney López has written at length about the Court’s legal construction of whiteness, detailing historical attitudes and conflicting analyses in the Court’s struggle to make judicial meaning from the social construct of race, and others have analyzed the intractability and superficiality of colorblind ideology as well as the Brown decision and its lasting impact. These critical analyses are crucial to understanding contemporary racial constructs and corollary jurisprudence, but they are missing an explicit anti-blackness frame, a challenging concept upon which the existence of white supremacy depends.
The Supreme Court, and the judiciary generally, must be required to actively confront white supremacy and to dismantle its colorblind approach to decision-making in order to truly serve as an institutional vanguard of equal protection and racial justice. This paper will bring the analysis and critique of colorblind ideology a critical step forward by providing an anti-blackness frame for the conversation and calling the Supreme Court to account for its deeply problematic approach to race-based history and its contemporary impact, such that its precedent-setting jurisprudence will someday shift towards truly equitable outcomes for all people.
(13) Tiffany Jeffers
Assistant Professor of Legal Writing
Losing Our Innocence: The Impact of the "De-Childification" of Black Youth From Slavery to the Current Juvenile Justice System.
Slavery is one of America’s greatest sins. And yet the United States government has failed to adequately respond in any meaningful way to the detrimental and long-lasting consequences of slavery on descendants of enslaved Africans. Studies have shown the vast disparity between white and black communities in the areas of health and life expectancy, educational outcomes and wealth accumulation. There is an abundance of research linking slavery to the modern prison industrial complex as it relates specifically to black adult inmates. Scholars have connected almost every part of the African American experience to the residual impact of slavery. By adding to this line of scholarship, this Article seeks to show how the pattern of “de-childification” of black youth that began during slavery, continues to permeate our criminal justice system leading to excessive numbers of black juvenile delinquents receiving punitive outcomes in direct contrast to their white counterparts who receive rehabilitative outcomes. Black youth who engage in adolescent nuisance behavior often find themselves facing consequences in the juvenile delinquency system because of the system’s refusal to allow them to exist in a framework of childhood innocence based on their blackness.
This Article theorizes “de-childifcation” to be the driving factor of the disproportionate number of black youths currently prosecuted for offenses that should be characterized as normal adolescent nuisance behavior and handled outside the confines of the juvenile delinquency system. Even more problematic is the connection between the “de-childification” of black youths leading to higher numbers of black juveniles being charged, prosecuted, and sentenced as adults for non-violent felonies in the criminal justice system. To effectively show a continued pattern of “de-childification” of black youths leading to disproportionate punishment of black juveniles in the criminal justice system, it is necessary to begin with a historical overview of the Trans-Atlantic slave trade, including the inhumane voyage from the shores of Africa to America. This Article will then transition to the Jim Crow era where “de-childification” of black youth was rampant. Adolescent nuisance behavior of young black children was not only seen as criminal, but could, and often did result in extreme punishment or death of black youth. The modern evolution of the juvenile justice system’s rehabilitative versus punitive framework is a seemingly positive step for black youth delinquents. However, statistics show that despite efforts to eliminate punishment from the juvenile justice system, black youth still receive punitive consequences for misdemeanors and non-violent felony acts in U.S. courts. This Article argues that to reach maximum efficacy in the juvenile justice system, courts, prosecutors, and police must acknowledge, reject and work to counteract the propensity to “de-childify” black youth.
(14) Artika Tyner
A Call to Action: Breaking the Chains of Collateral Consequences.
The 400 Year Commemoration marks a clarion call to action which begins with a time to pause, reflect in order to effectively address the criminal justice challenges of the 21st Century in the United States. Pausing starts with reflecting on the legacy of slavery and its unrelenting presence still felt today. Reflecting requires a critical examination of the history of the Transatlantic Slave Trade which was rooted in the ideology of White Supremacy and became operationalized through the force of law and the essence of policy.
The racial hierarchy and related injustices associated with slavery should have ended with the abolishment of slavery in 1865 (codified in the 13th Amendment); however, the exception clause only further exacerbated the denial of equal citizenship and impeded access to unalienable human rights. The exception clause created a new form of slavery through convict leasing. This laid the foundation for expanding the legacy of America’s racial apartheid and allowing for a continuation of economic exploitation of the labor of African Americans.
This period in the late 1860s can be characterized as “slavery by another name” due to the chains of oppression and marginalization being made readily accessible but in a new form of labor. African Americans who were freed from the bondage of slavery were drawn back into its firm grip. They were convicted of crimes outlined in Black Codes like vagrancy for not being employed. Hence, slavery suddenly morphed into a new system- convict leasing. The remnants of the past are still ever-present with the emergence of mass incarceration and its impact on the African American community. Studies show race matters when there are more African American males under the custody of our penal system today than who were enslaved during the 1800s.
The impact of mass incarceration is intensified due to collateral consequences. Collateral consequences can be defined as hidden sanctions which emerge automatically at the onset of a criminal conviction. They are referred to “hidden” since they are not formally quantifiable in a sentence or imposed penalty. Due to the disproportionate rate in which African Americans are incarcerated, collateral consequences have a profound impact by limiting access to jobs and professional licensure and restricting access to the ladder of economic mobility.
This article will: a) explore the evolution from forced slave labor to convict leasing to the tangled web of mass incarceration, b) examine how collateral consequences impact the African American community’s economic mobility and restricts access to financial liberation and c) outline recommendations for policy changes.
(15) Madalyn K. Wasilczuk
Director, Juvenile Defense Clinic; Assistant Professor of Professional Practice, Louisiana State University Paul M. Hebert Law Center
The Racialized Violence of Police Canine Units.
On October 3, 1974, 15-year-old Edward Garner was shot and killed by the police in Memphis, Tennessee. Garner was an unarmed black boy running from the scene of a felony property offense. He died because the Memphis Police Department sanctioned the “fleeing felon” rule. Though the Supreme Court invalidated the rule that resulted in his death, the Court adopted a flawed reasonableness standard that in subsequent decades would prove to vest broad discretion in police and perpetuate discriminatory uses of force. In October 2018, another unarmed, 15-year-old black boy ran from the scene of a felony property offense, this time in Baton Rouge, Louisiana. Though the officers didn’t shoot, they did sic a dog on the boy. The dog clamped on to the boy’s arm, and the officers stood over him, ordering the boy to move his wounded arm behind his back as he screamed in pain and whimpered that he couldn’t. The dog’s teeth punctured the boy’s skin, leaving deep wounds that required medical treatment and eventually scarred. Similar scenes played out 101 times in Baton Rouge in 2017 and 2018. Out of the 101 times a BRPD canine bit someone over those two years, more than a third of the victims were 13-17 years old, and all of them were black. Though there are few studies on the subject, reported police canine bites nationwide disproportionately affect people of color. Moreover, despite evidence that canine units can be effective while shifting from injurious find-and-bite policies to a safer find-and-bark policies, the prevalence of police canine bites over the period from 2005-2013 did not decrease. Recognizing the medical implications of police canine bites, their demographic distribution, and the history of police dogs as a vestige of slavery, colonialism, and anti-black violence, it is time to reexamine the reasonableness of the police canine as a racialized weapon of force.
(16) Christopher Hill
Instructor/LL.M Fellow, UDC Law Legislation Clinic
The New Middle Passage.
Christopher Hill, Instructor/LL.M Fellow, UDC Law Legislation Clinic
Michelle Alexander’s book, “The New Jim Crow”, illustrated how mass incarceration is really just a continuation of slavery through the clause in the Thirteenth Amendment’s clause allowing enslavement of the “duly convicted.” Mass incarceration is simply the last phase of a new Atlantic triangular slave trade.
The first part of the trade route starts with systemic poverty and racism. The second part, and the focus of this article, is the New Middle Passage, which will be explained below. The last part, of course, is the use of the “punishment for crime” clause of the Thirteenth Amendment to warehouse Black people to create free labor, often for private prisons.
At the basic level, the New Middle Passage is where the courthouse hallways and courtrooms are overcrowded with Black people very much like the bodies of African people were uncomfortably crushed and disrespected as cargo in slave ships.
There are several ways that people go on the journey of the New Middle Passage. As the Department of Justice report after the killing of Michael Brown in Ferguson, Missouri stated, African American communities are subjected nuisance fees and fines, which brings people to courthouses.
The school to prison pipeline bring African American children to the New Middle Passage. Black youth become part of the system early in their lives. With the privatization of public education draining resources from public schools and pushes students out so they find themselves in the juvenile or adult criminal justice system. With education being privatize and the proliferation of private prison, the New Middle Passage will be filled with children who will be part of the private school to private prison pipeline. Finally, the cash bail system adds to the crush of the courtrooms and sends the poor to prison because they cannot pay.
The New Middle Passage is filled because private prison corporations lobby for laws that ensure their product is filled to a certain percentage. This is done through the work of governments to continue to bring people to court for low level drug offenses instead of providing alternatives to incarceration. Those charged with drug offenses of part of the New Middle Passages several times. Local governments create nuisance laws that puts people into the system when they cannot pay the fees.
There are ways to alleviate the overcrowded courthouses and pipelines to prison. This article will conclude with solutions to keep people from finding themselves in the New Middle Passage.