A Criminal Enterprise

A Dearth of Precedent: What Happened to Racism?

Posted in Uncategorized by Bidish J. Sarma on November 30, 2010

It turns out that an exhaustive Lexis-Nexis search for Louisiana Supreme Court cases in the past ten years that discuss “racism” or “race discrimination” or “racial discrimination” yields just 31 results. Of those 31 cases, 27 are capital direct appeals over which the Court has mandatory jurisdiction. These death penalty cases have often raised claims that the State discriminated against racial minorities in the selection of grand or petit jurors. Remarkably, only four other Louisiana Supreme Court cases in the past decade even mention “racial discrimation.” One of these cases involves disciplinary action against two lawyers, and only makes a passing reference to a race discrimination lawsuit one was retained to litigate. See In Re Kelly, 857 So. 2d 451 (La. 2003). Another involved a lawsuit by former police officers that alleged racial discrimination and harassment against the Baton Rouge Police Department. However, the Louisiana Supreme Court’s opinion did not deal with these heavy allegations, but instead simply remanded the case to lower courts to allow the Police Department to pursue its argument that the plaintiffs’ claims had prescribed (an argument which no lower court recognized as a winning argument). See Alcorn v. City of Baton Rouge, 863 So. 2d 517 (La. 2004). In the end, then, only two Louisiana Supreme Court non-death-penalty opinions meaningfully discuss race discrimination. In one of those cases, the Court reversed the intermediate appellate court’s finding that a civil service board violated the African-American plaintiff police officer’s constitutional right to equal protection when it imposed a fitness qualification upon him at the time he was up for promotion although no similar previous qualification had ever been imposed on white officers. See Moore v. Ware, 839 So. 2d 940 (La. 2003). The Louisiana Supreme Court was not impressed with Mr. Moore’s claim of race discrimination, holding “the facts of the present case do not establish that Moore carried his burden of proving a prima facie case of racial discrimination.” Id. at 950. In the fourth and final non-capital case, the Louisiana Supreme Court conducted a thorough review of the party’s peremptory strikes to find that the civil defendant has intentionally discriminated against African-American prospective jurors on the basis of their race. See Alex v. Rayne Concrete Serv., 951 So. 2d 138 (La. 2007). Perhaps what is most remarkable about the Alex case is that the Louisiana Supreme Court has never engaged in such a detailed review of a claim of race discrimination in jury selection in a death penalty case, where much more is at stake.

The dearth of recent high court rulings on race in this state is surprising, especially given that: the U.S. Supreme Court in 2008 found that Jefferson Parish prosecutors discriminated on the basis of race in the selection of Allen Snyder’s capital jury; the Jena 6 episode erupted in December 2006; and incidents like the Danzinger Bridge shootings occurred in Katrina’s wake just five years ago. It is undeniable that race and racism still matter in Louisiana. So, why is so little apparently going on in front of the state’s highest court? I can think of a few possibilities, though these are all speculative:
(1) The Louisiana Supreme Court has declined to utilize its discretionary review power in cases which raise issues of racial discrimination, but has been compelled to confront those issues in death penalty cases because state law provides that the Court must decide those cases on the merits;
(2) Civil suits alleging race discrimination are disproportionately settled outside of court;
(3) Potential plaintiffs in Louisiana lack faith in the judicial system’s ability and willingness to decide claims of discrimination fairly;
(4) A paucity of (pro bono/public interest) civil rights lawyers interested in identifying issues and equipped to litigate them means that individuals with legitimate claims can’t afford or find representation;
(5) As some legal commentators recently explained, claims are difficult to mount because systems rather than identifiable and particular individuals perpetuate covert discrimination: “outcomes are rarely attributable to overt racial discrimination; instead, they result from patterns of implicit bias and institutionalized racism that tend to repeat and normalize the status quo.” Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1179 (2008);
(6) The U.S. Supreme Court’s Equal Protection’s “intent” doctrine has made it nearly impossible to prove that the State has intentionally discriminated on the basis of race. See, e.g., id. at 1190-91;
(7) Individuals are reluctant to make allegations of race discrimination because they “are politically incendiary.” Ralph Richard Banks & Richard Thompson Ford, (How) Does Unconscious Bias Matter: Law, Politics, and Racial Inequality, 58 Emory L.J. 1053, 1103 (2009).

Perhaps the explanation is some combination of these factors, plus others I haven’t identified. Whatever the cause, the result is alarming. The reality is: “While the Jena 6 incident was a disturbing and highly visible reminder of the continued prevalence of racism in America, the equally troubling reality is that far less visible forms of racism and discrimination occur everyday and go largely unchallenged.”  Eva Paterson, et al., The Id, the Ego, and Equal Protection in the 21st Century: Building Upon Charles Lawrence’s Vision to Mount a Contemporary Challenge to the Intent Doctrine, 40 Conn. L. Rev. 1175, 1177 (2008). Incremental steps must be taken to address each of the factors contributing to the problem of unchallenged racism. But, there certainly exists an opportunity for the courts to step up and meaningfully analyze the claims that are actually presented to them. At the Louisiana Supreme Court, a logical first step would be to give capital defendants meaningful appellate review when they make substantiated claims that the State discriminated against prospective jurors in their cases. Then, it can step beyond the world of mandatory jurisdiction and provide litigants with a realistic hope that their concerns will not fall upon deaf ears. But, a simple Lexis search leaves one to wonder whether the fight for racial equality is fading, despite clear evidence for its need.

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