Paul Kiel at TPM Muckraker has an interesting article about the timing of indictments against the Missouri chapter of ACORN involving alleged "voter registration fraud":

It had been the longstanding practice of the Justice Department not to bring such indictments so close before an election. That's according to Joe Rich, the former head of the Justice Department's Civil Rights Section, and a Justice Department manual written by Craig Donsanto, head of the Election Crimes Branch at Justice, which advised that “Federal prosecutors and investigators should be extremely careful to not conduct overt investigations during the pre-election period or while the election is underway.”

Even Alberto Gonzales himself said just two weeks ago that "We have guidance about that, doing those kind of investigations near an election," to be "sensitive about the effect it has on particularly minority participation."

But if [Bradley Schozman, deputy head at the DOJ Civil Rights Division] was trying to be sensitive, he didn't show it. In addition to issuing the statement that the "national investigation" into ACORN's registration of mostly poor, minority voters was "very much ongoing," Schlozman also announced the next day that his office would be monitoring the election for fraud. An assistant U.S. attorney would be on duty all day to "ensure public confidence in the integrity of the electoral process."

And there is evidence that the indictments were rushed to come down before Election Day.

According to the article, ACORN was the victim of workers who forged registration forms to justify getting paid, and ACORN discovered the fraud and turned the documents over to the DOJ.

But rushing the indictments through, after review by DOJ officials in Washington according to the article, brought intense local and national media scrutiny, including Fox News coverage, suggesting that "liberals" were trying to steal the November 2006 election -- just before the election.

It's also interesting that the DOJ would take such an intense interest in this particular case of alleged voter registration fraud just before an election in light of a recent Congressional hearing that found a "very troubling pattern of the politicization of the [Civil Rights] Division’s work" and "relentless political interference" by a "Shadow Civil Rights Division."

Labels: civil rights, justice

A new report from the Bureau of Justice Statistics, "Contacts Between Police and the Public, 2005," says that while the number of citizens of all races stopped or searched by law enforcement has dropped since 2002, minorities are still more likely than whites to be searched, arrested, and/or have force used against them.

From the report (PDF format):

• In both 2002 and 2005, white, black, and Hispanic drivers were stopped by police at similar rates, while blacks and Hispanics were more likely than whites to be searched by police.

• Male drivers were 3 times more likely than female drivers to be arrested, and black drivers were twice as likely as white drivers to be arrested.

• In both 2002 and 2005, blacks and Hispanics experienced police use of force at higher rates than whites.

• Blacks (4.4%) and Hispanics (2.3%) were more likely than whites (1.2%) to experience use of force during contact with police in 2005. Blacks accounted for 1 out of 10 contacts with police but 1 out of 4 contacts where force was used.

Further, perceptions about whether contact with police was justified vary by race:

Blacks (82.2%) were less likely than whites (91.6%) to feel the police acted properly during a contact. Racial differences in opinion about police behavior were not found across all types of contacts. No differences were found in the percentages of whites and blacks who felt the police behaved properly when helping with a traffic accident or providing assistance, such as giving directions.

[..]

While the majority of stopped drivers felt police had a legitimate reason for stopping them, driver opinion was not consistent across racial/ethnic categories. White (87.6%) and Hispanic drivers (85.1%) were more likely than black drivers (76.8%) to feel the stop was legitimate.

Driver opinion also varied depending on the reason for the traffic stop. A smaller percentage of black drivers stopped because of a vehicle defect (66.5%) or a record check (72.2%) felt they were stopped for a legitimate reason compared to white drivers pulled over for the same reasons (90.5% and 91.8%, respectively).

The authors of the report say findings of racial disparities are not evidence that minorities are treated differently, and "might be explained by countless other factors and circumstances that were not taken into account in the analysis."

The ACLU takes a somewhat different view. Dennis Parker, Director of the ACLU’s Racial Justice Project, stated in a recent press release:

"These findings demonstrate clear and significant racial disparities in the way in which motorists are treated once they have been stopped by law enforcement. The report found that blacks and Hispanics were roughly three times as likely to be searched during a traffic stop, blacks were twice as likely to be arrested and blacks were nearly four times as likely to experience the threat or use of force during interactions with the police.

And while the Department of Justice says that the higher rate of searches of blacks and Hispanics is not necessarily the result of racial bias, it begs a critical question: why are blacks and Hispanics subject to searches disproportionately? It’s a question that needs to be answered."

There are also questions regarding why the Justice Department does not provide breakdown by race of cases where evidence of a crime was found following a search. The ACLU believes that this would show that many such searches are not justified:

"Moreover, there was a significant figure left out of this report – the racial breakdown of the number of searches that resulted in the discovery of illegal contraband. Previous reports demonstrated that while black and Hispanic drivers were more likely than whites to be searched by law enforcement during traffic stops, they were less likely to be harboring contraband. In 2005 the Justice Department went so far as to try to conceal these numbers. They even demoted the official, Lawrence A. Greenfeld, who compiled them. This report makes no mention of the racial breakdown of the hit rate. It’s an eerie silence and the Justice Department needs to explain why this is not in the report."

The press release mentions a letter to U.S. Attorney General Alberto Gonzales in Aug. of 2005 from The Leadership Conference on Civil Rights signed by several prominent civil rights leaders regarding the suppression of the findings:

We are deeply concerned and dismayed by the reported efforts of political appointees in the Department to suppress or downplay these important findings. All of us who care about the fair administration of justice, including law enforcement agencies across the country, rely on the unbiased and apolitical work of BJS. Its reports are the gold standard for analysis of the state of our nation's criminal justice system. Integrity in law enforcement research should be a bedrock principle of the Department's work in this area. Attempts to undermine that integrity should not be tolerated.

Most importantly, the results of this study indicate a pressing need for the Administration to do more to address the persistent problem of racial profiling in America.

As we have argued in the past, racial profiling violates our nation's basic constitutional commitment to equality before the law. Racial profiling is also contrary to effective law enforcement -- whether used as a tool in the war against drugs or the war against terrorism, profiling fuels the perception in minority communities that the criminal justice system is unfair and undermines the trust between the police and the communities they serve.

The recent BJS study confirms that profiling by federal, state, and local law enforcement agencies is widespread, and that, despite the efforts of some states and local law enforcement agencies to address this problem, federal legislation is necessary.

There is no indication if A.G. Gonzales has any recollection of remembering if he received the letter or read it, but this appears to be more evidence that political influence in the Department of Justice is undermining civil rights enforcement.

Labels: civil rights, justice, race and racism

The recent scandal and cover up surrounding fired U.S. Attorneys who turned out to not be "loyal Bushies" highlights a growing concern about the Justice Department's enforcement of civil rights.

As Chris Kromm noted here last week, there are questions about voter suppression and enforcement of voting rights. Before that there was the DOJ Civil Rights Division investigation which concluded Georgia's proposed voter ID law was discriminatory and recommended against approving it -- a finding that was overridden by higher-ups in the Justice Department. And before that, a 2004 Southern Studies investigative report (PDF format) found that creative interpretation and selective enforcement of election laws benefited Republican candidates.

But the problems at the Justice Department appear to go far beyond enforcement of Bush loyalty and non-enforcement of voting rights.

The House Judiciary Committee's Subcommittee on the Constitution, Civil Rights, and Civil Liberties recently held an oversight hearing on the DOJ's Civil Rights Division. They heard testimony from the head of the division and civil rights leaders.

In his opening statement, Subcommittee Chairman Jerrold Nadler (D-NY) said:

The recently released report by the Citizens’ Commission on Civil Rights, “The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration,” documents a very troubling pattern of the politicization of the Division’s work. The findings, by this bi-partisan group of career civil rights professionals, are very troubling. They reflect concerns that have been raised for several years, and which, until now, have not been subject to the scrutiny of this Subcommittee.

Allegations of the politicization of law enforcement are certainly not new to the members of this Committee. An extremely disturbing pattern is emerging from this administration of relentless political interference in the basic enforcement of our laws.

In areas, such as the Voting Rights Act – which this Committee just reauthorized – we have received allegations that political considerations have trumped the recommendations of career staff. In these cases, the courts have upheld the recommendations of the civil rights professionals in the Division, and have struck down the political decisions imposed by what some have called the Shadow Civil Rights Division.

If the rule of law is to have any meaning, if the civil rights laws this Committee produces are to have any value, then we must be assured that those laws will be enforced without fear or favor.

Of course the head of the Civil Rights division, Wan J. Kim, defended the DOJ's record, citing specific case examples intended to portray vigorous enforcement of civil rights laws. You can read his full testimony here (PDF format).

Civil rights leaders, though, paint a somewhat different picture.

William L. Taylor, Chairman of the Citizens’ Commission on Civil Rights, testified:

…as the Division approaches its 50th anniversary, it is in deep trouble because the Bush Administration has used it as a vessel for its own political objectives, often disregarding the law and sullying the group’s reputation for professionalism and integrity.

[..]

The assault of the Administration on the Civil Rights Division, taken together with the nomination of judges who are hostile to the enforcement of laws that ban discrimination, has left many persons without the protections of law on which they have relied.

Joseph D. Rich, Director of the Fair Housing Project, Lawyers’ Committee for Civil Rights Under Law, testified (PDF format):

Given the passions that civil rights enforcement generates, there has always been potential for conflict between political appointees of the incumbent administration, who are the ultimate decision makers within the Division and the Department, and the stable ranks of career attorneys who are the nation’s front line enforcers of civil rights and whose loyalties are to the department where they work. Career attorneys in the Division have experienced inevitable conflicts with political appointees in both Republican and Democratic administrations. These conflicts were almost always resolved after vigorous debate between the career attorneys and political appointees, with both learning from the other. Partisan politics was rarely injected into decision-making […]

During the Bush Administration, dramatic change has taken place. Political appointees made it quite clear that they did not wish to draw on the expertise and institutional knowledge of career attorneys. Instead, there appeared to be a conscious effort to remake the Division’s career staff. Political appointees often assumed an attitude of hostility toward career staff, exhibited a general distrust for recommendations made by them, and were very reluctant to meet with them to discuss their recommendations. The impact of this treatment on staff morale resulted in an alarming exodus of career attorneys -- the longtime backbone of the Division that had historically maintained the institutional knowledge of how to enforce our civil rights laws tracing back to the passage of our modern civil rights statutes.

Compounding this problem was a major change in hiring procedures which virtually eliminated any career staff input into the hiring of career attorneys. This has led to the perception and reality of new staff attorneys having little if any experience in, or commitment to, the enforcement of civil rights laws and, more seriously, injecting political factors into the hiring of career attorneys. The overall damage caused by losing a large body of the committed career staff and replacing it with persons with little or no interest or experience in civil rights enforcement has been severe and will be difficult to
overcome.

Wade Henderson, President and CEO of the Leadership Conference on Civil Rights testified (PDF format):

Revelations indicating that the U.S. Department of Justice may have fired eight U.S. Attorneys to further a political agenda were surprising to many; to those of us who have been watching the Civil Rights Division, they were not. Over the last six years, we have seen politics trump substance and alter the prosecution of our nation’s civil rights laws in many parts of the Division. We have seen career civil rights division employees – section chiefs, deputy chiefs, and line lawyers -- forced out of their jobs in order to drive political agendas. We have seen whole categories of cases not being brought, and the bar made unreachably high for bringing suit in other cases. We have seen some outright overruling of career prosecutors for political reasons, and also many cases being “slow walked,” to death.

In general, the concerns that we have with the enforcement within the Civil Rights Division fall into three broad categories: (1) a significant drop off in the number of cases brought overall; (2) a shifting of priorities away from traditional enforcement areas, where the 3 Division has long played a unique and significant role, and (3) politicization of personnel decisions and substantive decision-making within the Division.

Are we seeing an emerging theme yet?

Among the specific concerns cited, Joseph D. Rich notes:

• Removal and/or reassignment of section chiefs and deputy chiefs by political appointees, something that rarely occurred under previous administrations.

• Limited communication between section chiefs and political leadership.

• Case assignments made by political appointees, including a shift of focus to deportation cases at the expense of other civil rights cases.

• Mass exodus from the voting section, with over 54% leaving or being reassigned to other divisions since 2005, including the section chief and three of four deputies.

• Mass exodus from the employment section, with over 65% leaving or being reassigned since 2002, including the section chief and three of four deputies.

• Loss of 12 paralegals, many with over 20 years experience.

• Only 19 of 45 of lawyers hired since 2003 in the appellate, employment, and voting sections have civil rights background or experience, and some of that was defending employers in discrimination lawsuits.

Regarding enforcement, Wade Henderson notes:

• The Bush administration has filed only 35 Title VII employment cases, as compared to the previous administration which filed 92 cases.

• The number of housing cases has fallen from 53 in 2001 to 31 in 2006. Cases involving discrimination have fallen by 60%.

• Shifting of resources to "reverse discrimination" cases on behalf of whites.

• The voting section filed no discrimination cases on behalf of African American voters between 2001 and 2006, and none on behalf Native Americans.

Based on the testimony at this hearing, it appears that a great deal of damage has been done to the DOJ's Civil Rights Division in just six short years under the Bush administration. We can only hope that it won't take 50 more years to undo it.

For further reading:

The Bush Administration Takes Aim: Civil Rights Under Attack

The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration (Chapters 1 and 2)

The Erosion of Rights: Declining Civil Rights Enforcement Under the Bush Administration (Chapters 3 through 7)

Labels: civil rights, justice, regulatory oversight

As Chris noted in this recent post, there is growing world-wide opposition to the death penalty, and the numbers are down in the U.S. but it's still most prevalent in the South.

The case of a mentally deficient death-row inmate in Mississippi prompted a recent three-part investigative report by the McClatchy Newspapers into the failure of lawyers to adequately defend death penalty cases in Georgia, Mississippi, Alabama and Virginia. They reviewed dozens of recent cases and found:

• In 73 of the 80 cases, defense lawyers gave jurors little or no evidence to help them decide whether the accused should live or die. The lawyers routinely missed myriad issues of abuse and mental deficiency, abject poverty and serious psychological problems.



• By failing to investigate their clients' histories, lawyers in these 73 cases fell far short of the 20-year-old professional standards set by the American Bar Association. Their performances also appear inconsistent with standards that the U.S. Supreme Court has mandated several times.



• Appeals courts for the most part have ducked those Supreme Court directives about the importance of quality defense counsel. So far, only two of the 80 death sentences have been overturned for bad lawyering.



• In 11 of the cases, the defendants already have been executed. Their cases moved through the appeals process without a single judge flagging lapses in the defense attorneys' performances.

In Virginia, Alabama and Mississippi, this poor legal representation is a result of official policy. The states pay no more than a pittance to help lawyers defend their clients, and none requires that well-trained attorneys handle death cases.

Georgia had a similarly inadequate system until 2005, when a publicly funded, statewide capital defenders office began spending whatever is necessary to scour clients' backgrounds for mitigating evidence. So far, none of that office's 46 clients has been sentenced to death.

Overall, the 80 cases that McClatchy reviewed show how poorly these four key death-penalty states fulfill a basic constitutional principle.

In one case, the entire penalty phase defense consisted of a bumper sticker slogan: "What would Jesus do?" That's a good question, but hardly an adequate defense.

Details of the brutal and horrific acts committed by some of the defendants are shocking, and no there's no amount of mitigating evidence sufficient to excuse such crimes in the mind of any sane person. But that does not answer the moral question of whether the state-sanctioned taking of another life is just, nor does it excuse the lack of due process and adequate legal defense guaranteed by the Constitution and affirmed by numerous Supreme Court decisions.

Recently, new legal challenges as to whether lethal injection is cruel and unusual punishment have put executions on hold in several states.

In December, then Governor Jeb Bush halted all executions and ordered a complete review of Florida's lethal injection procedures following a botched execution. Opponents of Florida's death penalty note that state law provides stricter regulation of drugs and procedures used to euthanize animals than for executing prisoners by lethal injection.

More recently, the governors of North Carolina and Tennessee have put executions on hold in their states pending review of lethal injection procedures.

This week in North Carolina, Gov. Mike Easley halted executions in that state because of a medical ethics dilemma. State law requires a physician to attend to the condemned's execution, but the state's medical board says it will sanction doctors who violate ethics rules that prohibit them from taking part in executions.

An even more troubling situation prompted Tennessee Gov. Phil Bredesen to halt executions earlier this month. A death row inmate's lawsuit challenging the state's lethal injection procedures prompted a review which uncovered, as Governor Bredesen called it, a "cut-and paste" procedure manual containing bizarre instructions:

The manual's minute-by-minute guidelines for lethal injections includes the following instruction: "The Executioner will engage the automatic rheostat." A rheostat controls the voltage flowing to an electric chair.

The guidelines also tell the facility manager to disconnect the electrical cables in the rear of the chair before a doctor checks whether the lethal injection was successful.

The lethal injection manual also has instructions for shaving the condemned inmate's head and requires fire extinguishers to be on hand. Another provision calls for a "cut-down procedure" in which a physician is to make a deep incision into a condemned inmate's limb to find a vein if necessary, a practice opponents say is cruel and unusual and a violation of medical ethics.

Responding to Governor Bredesen's decision, a professor of moral philosophy calls for a national death penalty moratorium in this Associated Baptist Press editorial:

In a move that received very little attention, Gov. Phil Bredesen recently suspended all executions in Tennessee until May, pending a full review of what he called our "sloppy" execution procedures. The governor is to be commended for this brave and wise decision.

But I suggest that he take this opportunity to review not just the execution procedures, but the entire application of the death penalty in this state. That will take far longer than a few months. We need a death penalty moratorium—not just in Tennessee but in all states.

When the Supreme Court ruled in 1976 that states could resume executions, they mandated that any state doing so must apply this ultimate penalty in a fair and consistent, rather than arbitrary and capricious, manner. No one can honestly look at the current application of the death penalty in Tennessee and believe that we have met that test.

He goes on to discuss the racial and class issues surrounding the death penalty, and cites Biblical references to support his position:

It would take another column to review the biblical arguments, which in the South are a profound factor in support for the death penalty. Even if we were to take the Old Testament alone as our guide, it requires the eyewitness testimony of two or three witnesses (Deut. 17:6), a stricter standard than our own. It also requires that the justice system "not show partiality" (Deut. 16:19) and therefore that every accused person be treated similarly. And this is not even to consider the profound issues raised by the New Testament’s focus on mercy.

As of now, at least, the death penalty is a public policy that fails the most basic standards of justice. It is time for a moratorium and a comprehensive review.

Polls show that about 65% of Americans approve of the death penalty, a number that has remained fairly constant over the years. But we're insulated -- morally, emotionally, and physically -- from the process. We elect representatives who make the laws in our name. We elect governors who sign off on the executions in our name. We hire corrections officials to carry out the executions in our name. But most of us are never directly involved in any of it.

What would happen if every citizen of the state had to read and personally approve the procedures described in Tennessee's lethal injection manual? Or, what if teams of citizens were selected at random, similar to jury duty, to personally carry out executions? Would we still have the stomach for it? What would Jesus do, indeed.

Labels: death penalty, justice