SENTINEL 7-5-2012
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The Red, White, & Blues Noose

Criminalizing race in America

The Firpo Files

(Sentinel, July 5, 2012)

The justice system in America has a stranglehold on African descendants living here. As a result, an increasing number of informed Blacks are passing on July 4, Independence Day celebrations.

What happened in the Supreme Court case of McCleskey v. Kemp [481 U.S. 279, 327 (1989)] demonstrates that America's justice system is anything but to Blacks.

Clear Bias: "Warren McCleskey was a black man facing the death penalty for killing a white police officer during an armed robbery in Georgia," writes Michelle Alexander in her groundbreaking book, The New Jim Crow (2012).

Represented by the NAACP, "McCleskey challenged his death sentence on the grounds that Georgia's death penalty scheme was infected with racial bias and thus violated the Fourteenth and Eighth Amendments."

In connection with the McCleskey case, the Fourteenth Amendment guarantees the fairness of "due process of law" and "equal protection  of the laws," and the Eighth Amendment  forbids "cruel and unusual punishments."  

As proof of his claim of racism, McCleskey pointed to a study by Professor David Baldus (called the Baldus Study) of more than two thousand murder cases in the state of Georgia that showed that "defendants charged with killing white victims received the death penalty eleven times more often than defendants charged with killing black victims," notes Alexander.

The all-powerful Georgia prosecutors were the culprits. They sought the death penalty 7 out of 10 times when the defendant was Black and the victim was White; whereas when it was reversed (White defendant Black victim), it was about 2 out of 10 times. What would the Court say about this clearly biased situation?

‘You're Right, but You're Wrong': The Supreme Court looked at the totality of the comprehensive Baldus Study and "accepted the statistical evidence as valid," but stunningly concluded that "the statistical evidence of race discrimination in Georgia's death penalty system did not prove unequal treatment under law," notes Alexander.

In other words, ‘you're right that racial disparities directed at Black males exist, but you're wrong that it's really racism.'

Incredibly, the Court "insisted that evidence of conscious, racial bias in McCleskey's individual case was necessary to prove unlawful discrimination," says Alexander.  

She further decried: "In the absence of such evidence, patterns of discrimination--even patterns as shocking as demonstrated by the Baldus study--did not violate the Fourteenth Amendment."

Amazingly, the Court acknowledged that significant racism had been found in cases that went beyond the death penalty, but suggested that since racism in so rampant, to do the right thing would be to undermine the U.S. justice system!

"Taken to its logical conclusion," the Court concluded, "[McCleskey's claim] throws into serious question the principles that underlie our criminal justice system. ...[I]f we accept McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty."

In an endnote in her book Alexander opined: "Ironically, the Court expressed concern that [certain] rules would make it difficult for prosecutors to disprove racial bias. Apparently, the Court was unconcerned that defendants, due to its ruling in the case, would not be able to prove racial bias because of the same rules."

Justice Brennan, the lone dissent, complained that the majority opinion "seems to suggest a fear of too much justice."

Uphill with Cahill: McCleskey v. Kemp set a precedent for prejudice. Just ask Edward Clary, an 18-year-old Black youth who was busted with less than two ounces of crack cocaine. Apparently, Federal District Judge Clyde Cahill, a Black man, initially believed a minimum of ten years in federal prison was called for.

But Clary's lawyers argued that such a sentence would be racist given the fact that Whites get considerably less time for powder cocaine than do Blacks for crack cocaine. (Remember, according to one exhaustive study, White students use crack eight times the rate of Black students.)

Judge Cahill saw the light, and sentenced Clary to four years in prison (as if he had possessed powder cocaine instead of crack cocaine).

Clary did his time and was released. However, citing McCleskey v. Kemp, the prosecution appealed, and Cahill was reversed.

The appeal court remanded the case back to the district court for resentencing. Clary, now a husband and father, was ordered back to prison to finish his ten-year term.

Many feel Blacks are getting the blues from a White justice system out for blood. That's the red, white, and blue they're reminded of on every Independence Day.

Peace and blessings to all. Amen.