From one of our systemic justice students, here is an illuminating website briefly describing capital punishment in America, focusing in particular in how inadequate representation disadvantages a large number of capital defendants and skews the system against them. Included is an overview of several inmates in Arkansas who are currently scheduled for execution beginning April 17th and who received wholly ineffective representation.
Great news from two friends of the Systemic Justice Project:
A small city bordering Ferguson, Mo., has agreed to pay $4.7 million to compensate nearly 2,000 people who spent time in the city’s jail for not paying fines and fees related to traffic and other relatively petty violations.
Alec explains the systemic place of this litigation:
“This historic settlement is part of a national movement to change how indifferent we’ve become to putting human beings in cages, and to end the notion that courts can be used as tools of revenue generation rather than places of justice,” said Alec Karakatsanis, whose Washington-based nonprofit organization, Equal Justice Under Law, brought the suit with the Arch City Defenders, a Missouri nonprofit group, and the St. Louis University School of Law.
See the full New York Times story here.
This is a republication of a post originally posted on December 26th 2014:
Last week a South Carolina judge took the unprecedented step of vacating the 1944 conviction of a black 14-year-old boy, the youngest person executed in the United States in the past century, on the grounds that he, George Stinney, Jr., did not receive a fair trial. The boy had been accused of beating two white girls to death in the tiny town of Alcolu, South Carolina.
After the bodies of the two girls, Betty June Binnicker, 11, and Mary Emma Thames, 7, were found, the rural community was hungry for vengeance.
Understandably. The young girls had been collecting flowers — maypops — to give to their teacher when they went missing. Searchers found their bodies the next morning, their heads crushed, lying in a ravine piled behind brush and beneath their bicycle.
History has not looked kindly at the process and outcome that unfolded in response. Young George Stinney, who was participating in the search told others that he and his sister had seen the girls on the day they were murdered. Shortly thereafter, he was taken into custody — and held for five days without being arrested. He was separated from his parents and would never see his family again.
Although there was no physical evidence connecting him to the crime, authorities claimed that he confessed to killing the girls by bludgeoning them with a 12-inch railroad spike and sexually assaulting one of them.
The trial took place on April 24. It lasted less than three hours. The jury — all white men — deliberated for 10 minutes. Of the proceedings and Stinney’s confession, there is no record.
The guilty verdict (with no recommendation for mercy) was a foregone conclusion. Stinney’s court-appointed lawyer did not move for a change of venue. He did not call any witnesses on his client’s behalf. He did not, for instance, call any of George’s siblings, who would have testified that their brother George could not have killed the girls because they were with him the entire day. He did not call Reverend Francis Batson, who found the girls and pulled them from the ditch and who saw little to no blood in or around the ditch, suggesting that the girls may have been killed elsewhere and moved.
Nor did Stinney’s lawyer cross examine any of the prosecution’s witnesses.
Stinney’s attorney made nothing of what lawyers today emphasize about the evidence: that there was no physical evidence to link Stinney to the crime and that it would have been a “physical miracle” for the small boy to singlehandedly overcome the two girls, murder both of them, and drag them from their bicycle to the ditch where they were left.
Stinney’s lawyer also never challenged the conditions around the alleged confession.
Except for young George, everyone in the packed courthouse during the brief trial was white. Even George’s parents and family were excluded. Meanwhile, outside the courthouse, a mob of up to 1500 people gathered in anticipation of a quick result.
Following the verdict, a mob of white men amassed at the local jail with hopes of lynching Stinney, but the boy had already been transferred to the Columbia penitentiary. The mob would not have to wait long for his brutal death.
No appeal was filed.
George’s family was powerless. George’s sister recounts:
“My mother cried and prayed . . . . We wanted the truth to come out. But sometimes when you don’t have the means and the money you accept things for what they are. The NAACP tried to stop it, but it was no use. In those days, when you are white you were right, when you were black you were wrong.”
Their powerlessness was born of the interlocking effects of race and poverty.
Sourcing the Death Penalty Information Center, Jeffery Collins writes: “South Carolina executed 59 people in the 1940s. Fifty of them were black . . . .” Thus, when South Carolina’s black population constituted just 43 per cent of the total population, black inmates made up 85 percent of the victims of capital punishment.
Such numbers then failed, like similarly skewed statistics today fail, to give lawmakers pause. (About two-thirds of South Carolina’s prisoners today are black, as are 27 of its 46 inmates currently sitting on death row.)
Local churches and the NAACP, pleaded with South Carolina’s Governor at the time, Olin D. Johnston, to stop the execution and commute the sentence to life imprisonment, citing Stinney’s age as a mitigating factor. Some letters cited a then-recent case, where a 16-year-old white boy from Parish Island was given a 20-year sentence for murder and rape.
One letter put it this way: “Child execution is only for Hitler.”
Others begged for a new investigation and trial. Many spoke of the war, in which black and white men were fighting and dying in equal numbers for their country.
Governor Johnston, who was running for the U.S. Senate at the time, wrote a letter to one of his upset constituents just days before the execution in which he made several assertions that were based on the “confession” though otherwise baseless: “It may be interesting for you to know,” he wrote, “that Stinney killed the smaller girl to rape the larger one. Then he killed the larger girl and raped her dead body. Twenty minutes later he returned and attempted to rape her again, but her body was too cold. All of this he admitted himself.”
Governor Johnston also artificially distanced himself from the young boy’s fate by claiming that he “had nothing to do with the matter — pointing to “the judge, the jury, and the solicitor.” He also claimed, without support, that the “colored people . . . would have lynched this boy themselves had it not been for the protection of the officers.”
Johnston’s argument seems to be that the evidence clearly incriminated young George, that the boy was a monstrous rapist, that the arrest and verdict was not about race, that the state had somehow done the boy a favor by protecting him from his own people, and that, in any case the the boy’s fate was beyond the governor’s control. Such was the twisted logic of a politician seeking higher office in the Jim Crow South: please the majority of constituents by allowing the race-and-revenge-fueled legal lynching and placate the critics by pretending that the result was out of his control and better than the alternative.
Johnston was not the only key actor vying for potential votes at the time. Charles Plowden, George’s appointed defense attorney, was also running for the statehouse. He, too, had much to gain by providing a legitimating but anemic defense and by helping to ensure a result that would satisfy the bloodthirsty urge of his most important potential voters.
As one history of the case put it, Plowden’s “goal in the case was simple: to provide a bare bones defense that would fulfill his responsibilities as a defense attorney and, at the same time, not anger the local residents.”
Years later, when Plowden responded to a question about why he didn’t appeal the case, he stated: “There was nothing to appeal on” and added the Stinney family had no funds to continue the case.
George Stinney, Jr. was put to death in the electric chair on June 16, 1944.
Arrest, confession, trial, conviction, and execution, all within just 83 days.
Done, done, done, done, and done!
On the day of his execution, seventy years ago, George Stinney was 14 years and 5 months old. He was small for his age, barely topping five feet and and ninety pounds. As he was led to the electric chair, he carried a Bible under his arm. Climbing in, it became clear that the chair’s straps and contraptions were all too big for him and had to be adjusted and re-rigged. His feet dangled from the chair and the bible doubled as a booster seat so that the apparatus could reach his head.
As was generally the case with such electrocutions, a mask was placed over the victim’s face to spare the audience from seeing the facial contortions of pain and, potentially, flames. In Stinney’s case, the “death mask” was too large and fell off when the first 2400-volt surge of electricity was unleashed, revealing tears streaming from Stinney’s eyes and the horror of a small boy being internally burned — brain, heart, and organs.
The day after Stinney’s execution, a local newspaper carried a three-inch article, which contained the following line “Stinney, 14 years and five months old, was the youngest person ever to die in the chair.”
The story made no dent in national headlines, owing, at least in part, to the unfolding of other events. In June 1944, most people were focused on the beaches of Normandy, where a million Americans were locked in the battles of D-Day. Newspapers carried graphic stories of death and destruction unparalleled before or since. Most Americans were preoccupied by the global contest and had little compassion to spare for a black teenager who monstrously murdered two young white girls.
Locally, though, the dominoes of racial injustice continued to topple. Stinney’s father was fired from his job at the town’s lumber mill. As one of George’s brothers recently put it: “They had no money, the law was against them and they were black in the American south in 1944.” And, amid rumors of a mob coalescing, the Stinney family was driven from the town.
For many in the community, the death of George and the banishment of the Stinney family no doubt brought a sense of comforting closure. As far as they were concerned, a heinous murderer had been dispatched and justice had been served.
But justice rushed, like justice delayed, is justice denied. The legal process and outcome that characterized the Stinney trial, in fact, seems functionally indistinguishable from the lynchings that defined Jim Crow race relations; instead of the criminal law system being merely complicit with racial injustice, the criminal law — and its veneer of legitimating legal process — was the primary instrument of that injustice.
The tragedy would not only devastate the Stinney family, it would help reinforce and maintain the shadow of terror that demarcated the power relations between blacks and whites in the region. It illustrated both the consequences and causes of white supremacy. It served as an act of subordination and as a reminder of what would happen to someone who resisted his place in that hierarchy. That is, for a member of the black community to openly question the outcome, to revisit the case aloud, would be viewed by those in the white community as an act of aggression — a challenge to the system — that would be met with violence reinforced by the law.
Revisiting the Case
Last year, members of Stinney’s family petitioned for a new trial. They old wound hadn’t healed, despite a lifetime of distance and distancing, from the day and place of George’s brutal death. Even decades later, they felt that there was something to be gained from a new case. Said one of his siblings: “Nothing will bring him back and nothing will bring those girls back;” nevertheless, it was still “important to have his name cleared.”
Advocates for Stinney and his family argued that newly discovered evidence — and the rush-to-judgment process of the original trial — justified reopening the case. There had been numerous irregularities in the process. For example, one of the searchers for the girls was a member of the family that owned the land on which their bodies were ultimately found, was signed as a witness on the indictment form, was a member of the grand jury, and was later appointed foreman of the jury at the coroner’s request.
In January, Judge Carmen Mullen, a circuit court judge for the Fourteenth Judicial Circuit in South Carolina, heard the testimony of three of Stinney’s surviving siblings and several expert witnesses. They all provided alibi evidence showing that 14-year-old George could not have committed the double homicide.
In her ruling last week, Judge Mullen emphasized she was not overturning the case on its merits. Relitigating the case would have been, in light of the scant record, all but impossible. She did not, based on the record before her, assess whether George Stinney was or was not guilty. Instead, Judge Mullen based her decision to vacate the earlier judgment upon the failure of the original court to grant Stinney a fair trial: “No one can justify a 14-year-old child charged, tried, convicted and executed in some 80 days.” Summarizing those events, she said: “in essence, not much was done for this child when his life lay in the balance.”
According to Judge Mullen, it was “highly likely” that Stinney’s confession, the core of their case against George Stinney, was coerced. She pointed out the sizeable “power differential between his position as a 14-year-old black male apprehended and questioned by white, uniformed law enforcement in a small, segregated mill town in South Carolina”:
“Based on the facts presented in this Court . . . methods employed by law enforcement in their questioning of the defendant may have been unduly suggestive, unrestrained and noncompliant with the standards of criminal procedure as required by the Fifth and Fourteenth Amendments.”
He was not informed of his rights, he was not accompanied by a lawyer, and he was without his parents. “A 14-year-old boy cannot confront his accusers,” Mullen wrote. “He needed his lawyers to help.”
Wilford “Johnny” Hunter, a cell mate of Stinney’s came forward to testify that George had told him while they both were in jail in 1944 that “he didn’t kill those girls, and that they [police] made him say those things.”
Dr. Amanda Salas, a child psychiatrist trained as a forensic psychiatrist, testified that Stinney’s alleged confession was “not reliable”: “It is my professional opinion, to a reasonable degree of medical certainty, that the confession given by George Stinney Jr. on or about March 24, 1944, is best characterized as a coerced, compliant, false confession.”
According to journalist Karen McVeigh, there were reportedly two inconsistent confessions by George Stinney, both of which were entered as evidence at trial:
In the first, he said he was approached by the girls who attacked him after he tried to help one who had fallen into a ditch and he struck them in self-defense. In the second version, he had followed the girls into the woods and first attacked and fatally wounded Mary Emma, to “get her out of the way,” and then chased Betty June and struck her.
The trial court allowed the permissibility of the “possibility” of rape, despite the lack of evidence. The medical report states that, while there was slight swelling and a slight bruise on the external genitalia of Betty June, the hymens of both girls were intact.
One of the attorneys, Matt Burgess, believes George’s confession was
“changed [by the prosecution] to fit the elements. The murder weapon changed. It was a piece of iron, then a spike and then a railroad spike. That changed in a manner beneficial to law enforcement. In 1944, a 14-year-old black kid interrogated by white officers. . . . They probably put different scenarios to him. I’m guessing he just said, ‘Yes sir’ a lot.”
Judge Mullen’s Reasoning
In reaching her ultimate decision and why she was willing to take this unusual step to rectify a previous injustice, Judge Mullen explained:
“From time to time . . . we are called to look back to examine our still-recent history and correct injustice where possible. . . . I can think of no greater injustice than a violation of one’s constitutional rights, which has been proven to me in this case by a preponderance of the evidence standard.”
Judge Mullen’s order was based upon the legal remedy of coram nobis, which is rarely used and can be used only when a conviction was based on an error of fact or unfairly obtained in a fundamental way and when all other remedies have been exhausted.
Judge Mullen’s decision has been described as “courageous.” She is an elected judge in a state that still flies the confederate flag in its statehouse. Mullen, though, was not concerned:
“I wouldn’t have any regrets (if I was not re-elected). I go home and I feel good about what I’ve done . . . . It was a violation of someone’s constitutional rights. If we let our constitutional rights erode, we will be at the point where we wouldn’t be a democracy anymore, and that scares me.”
Why 70 Years?
George Frierson, a Clarendon County resident, school board member, and local historian has been researching and writing about the case for the last decade. Frierson began investigating the case in 2004 and said the more he researched, the more he became convinced by George’s innocence. He says there was little blood at the ditch, evidence that the girls were killed elsewhere. “A 95lb boy can’t carry two dead bodies a quarter mile or more. Those girls were beaten to a pulp. There would have been a lot of blood.”
Frierson was doing what many in the Alcolu community had not been comfortable doing: that is, talking about the Stinney case. James Hudley, who for 23 years served as pastor of Alcolu’s Green Hill Missionary Baptist Church, known locally as “the black church,” pointed out that people were reluctant or afraid to speak about the George Stinney case: “If you questioned anybody, they were very tight about the story.”
He added: “I never try to push them because I felt that there was fear that if you talked too much, the wrong people would get the message.” In the wrong hands, the talk could lead to reprisals, threats, intimidation, and violence — a possibility that gains credibility from the case itself, which, says Hudley, “put a lot of fright into the black population of Alcolu. I feel that even today that fright is still there.”
The case thus brought to light a topic that had been buried beneath anger, fear, guilt, shame, and the power dynamics that contain such a toxic brew.
Despite the long wait, Judge Mullen’s decision last week has managed to restore a portion of what had been taken from the family and the community.
George Frierson had this to say after Mullen’s decision was announced: “[T]he only thing we have are our names. . . . We have given him his name back because when he was incarcerated, he was given a number. His name at birth was George Stinney Jr., and that’s what he has back now. Not prisoner 260.”
The Origins of the New Case
It was Frierson’s historical writings that brought the community’s attention back to the case and that led lawyer Steve McKenzie, several of his partners, and law professor Miller Sheahy to take up the case.
Judge Mullen’s ruling last Wednesday resulted from a motion that McKenzie filed in January seeking a hearing to vacate the conviction. That effort was part of a six-year project that began after he read George Frierson’s historical accounts. Among other difficult realizations that McKenzie had to confront when reading that history was that the very courthouse in which the travesty of justice occurred was the courthouse in which he had been practicing as a lawyer. In other words, the case hit home.
“We have a duty in our profession to do justice,” McKenzie said. “We looked at this and said this is an egregious miscarriage of justice. His (Stinney’s) lawyer never put the state’s case to the test; he never presented any witnesses.”
In response to Judge Mullen’s ruling, McKenzie shared this response:
“When you think about a 14-year-old who is being put on trial for his life and he is the only African American in the courthouse. His parents weren’t allowed, the prosecutor is white, the defense attorney was white, the judge was white, the bailiff is white, everybody on the jury is white, everybody sitting in the gallery is white . . . You think about somebody being alone; he was alone and without help.”
There were those who strongly opposed revisiting and reconsidering the case.
The lawyer opposing the motion, Ernest A. Finney III — a son of the first black State Supreme Court justice since Reconstruction — argued that the outcome should be left alone: “The fact of the matter is, it happened, and it occurred because of a legal system of justice that was in place and that . . . — for all we know, based on the record — worked properly.”
That argument is a familiar one among lawyers because it reflects a strong tendency in the legal system to reach finality and to leave previous decisions undisturbed.
A number of citizens connected to the original verdict also preferred to leave the verdict — indeed, the whole topic — alone.
One Alcolu resident, Russell Harrelson, doesn’t see the point: “I think it’s kind of a waste of time, myself . . . . What good is it to stir into something that old? I think it’s going to stir up more controversy than it’s going to do good.”
James Gamble’s father was the Clarendon County sheriff at the time of the killings. Gamble rode in his father’s car with Stinney after the teenager was convicted, and in 2003 claimed: “He was real talkative about it. He said, ‘I’m real sorry. I didn’t want to kill them girls.”‘
Jimmy Hodge, now 82, was a boy of 12 when his father joined the search party that discovered the girls. Hodge still believes Stinney is guilty and doesn’t buy the new information that lawyers have brought to light: “After 70 years, I don’t know where it all came from. Why is it just showing up now?”
Hodge denies the presence of racial tension in the area, calling Alcolu “a village where everybody got along. There was no race problem. They’re a different people and still are,” he said of the black community in Alcolu.
“No other race is like American-born Caucasian, in their heritage and in the way that they do things. And I think that’s why the Lord created more than one race,” he said. Separate but harmonious: “The two races separated themselves. They had their own way to do things . . . but it wasn’t that they were against the other.”
Two of Binnicker’s nieces, who emphatically insist that there was no racial element to George’s trial and conviction, also expressed their concerns about airing the old case again. Frankie Bailey-Dyches said “[w]e always knew that our aunt was murdered and we always knew that it was George Stinney Jr.” Unsurprisingly, Dyches believed Stinney had “got what he deserved” and that “justice was served.”
“I believe he confessed,” Dyches said of George Stinney. “He was tried and found guilty by the laws of 1944 … and it needs to be left as is.”
According to Dyches, one of the investigating officers had told her before he died never to doubt George’s guilt. And she hasn’t. “It seems like a poor little black boy was railroaded by the white people, but that’s not how it was,” said Dyches. “I’m 100% convinced he did it.”
Dyches attributes the recent interest in the case to the lawyers seeking fees, pointing to a website they set up indicating that they would sue the state for wrongful death if George were exonerated. (The lawyers respond that the site was to help finance litigation fees only, with any remaining funds going to a scholarship foundation, and that they had no interest in suing for wrongful death and do not know if that is even possible.)
Carolyn Geddings said she felt bad for the Stinney family, but thought a retrial would only open old wounds.
“They can’t help what happened and I don’t know that they were treated fair back then. . . . Once the trial is over, it will be over whatever way it goes and it’s not going to bring him back and it’s not going to bring my aunt and the other little girl back and it’s a sad situation. That’s what happened in 1944 and 70 years is a long time to keep rehashing it, it needs to be over.”
The family had suffered a string of tragedies. Betty June Binnicker’s parents had previously lost a baby son when he was six months and, after Betty June, lost a third child in the Korean war. As Carolyn Geddings put it, “[f]or Betty June to be killed in such a horrible way – it was a terrible time for all of them.”
Clearly, several families were profoundly injured by the events of 1944.
Dyches laments: “My grandparents to begin with never recovered. That was their baby daughter.”
George’s sister, Amie Ruffner, describes her family’s loss this way: “They took my brother away and I never saw my mother laugh again.” Speaking of the town from which her family was driven: “I never went back there. I curse that place. It was the destruction of my family and the killing of my brother.”
Three children were horrifically killed and several families were ripped apart.
For some in the community, the resultant wounds had festered. For others, the wounds were avoided or had healed. For some there was a powerful desire to re-examine the trial, the process, the evidence, and the outcome. For others, there was a desire to look away. For those who identified with George Stinney, there was some hope that his name, memory, legacy, and innocence might be publicly restored. For individuals who identified with those in power who perpetrated it or were complicit with the execution of George Stinney, there were those things to lose.
The law makes a choice regarding whose injury and pain trumps and whose is eclipsed or whose reputation will be tarnished and whose, unblemished.
For those in the community, too, there are mixed and conflicting motives. In fact, all of us today have at least a small stake in the outcome of this case — and the tensions found at the local level exist at the national level. Those tensions are evident in the online comments attached to last week’s stories about the case. They are evident in the parts of the narrative that we accept and those parts that we challenge. They are evident, too, in the varying reactions to recent events, including the tragedies in Ferguson and Statten Island. They are evident in our personal, public, local, and national conversations — or lack of conversations — about race, racism, reparations, and even presidential politics.
Some of us perceive profound injustice spreading from the past into the present like a spilled liquid being absorbed by fabric. Others of us perceive today’s social fabric as untouched by the spills of the past.
But the lessons of Alcolu and George Stinney teach us, not just that our system has been the locus of unmistakable injustices in the past, but that the threads of the past are the threads of the present — that injustice yesterday doesn’t simply die with its victims. People care about this case and how it is perceived precisely because they feel the tug on who they are and how they live today.
True, the dominant ideologies might have changed across generations, but their effects tend to be fairly constant. Jimmy Hodges’s view that “the Lord created more than one race” and that there is “no other race like American-born Caucasion” is now considered outlandish by most people, but his conclusion that, because there is no explicit, public interracial hostility, then “there [is] no race problem” is still common. And, yet, the Stinney case itself, and the seven decades before a legal system even acknowledged the injustice of that case reveals that the sources of harmony need not be benign.
Beneath the surface of harmony (and, often, consciousness) are roles, scripts, language, clothing, music, jobs, institutions, architecture, boundaries, traditions, and imagery of hierarchy, much of which is implicitly passed along inter-generationally from within and across identity groups, and most of which support existing hierarchies backed by power and, if need be, violence.
And, together with those cultural habits, the psychological biases, emotions, and proclivities of the past represent deeper human tendencies, not the stuff of a different species. We are inclined, as they were, to commit injustice while seeing ourselves as just — a tendency that is liberated by power and harnessed by powerlessness.
Judge Mullen cautioned that her remarkable ruling should not be seen as opening new legal doors for families grieving over decades-old injustices: “The extraordinary circumstances discussed herein simply do not apply in most cases.”
Fair enough, but why the urge to limit rather than expand this sort of ruling?
This is one case of many in which most people would agree that racial biases and the urge to blame some and immunize others distorts the process and outcomes of the justice system. Does justice not require that we return to those cases and confront those potential errors. If, in other words, the purported presumption of innocence was, in fact, a presumption of guilt, why do we not develop a more robust process for revisiting judicial outcomes that we have reason to believe were incorrect?
Of course, seventy years later is seventy years too late, so, if we know those biases in the past led to unjust decisions, should we not be more attentive to the similarly unjust decisions and processes today?
If this case teaches us or we otherwise know that one group’s pain, fear, anger, and urge to blame can motivate inflicting pain on a scapegoat, that harming the powerless can be a palliative for the powerful, that our legal system has been an instrument of exercising and maintaining power, that re-examining our history and critically scrutinizing our legal system is upsetting and uncomfortable, that racism there and then finds expression here and now, that our criminal law system (among other legal areas) is racially biased at virtually every level, then why do we accept our current system of justice?
Unfortunately, the Stinney case illustrates problems that are still too common in our system of criminal justice: police and prosecutorial tendencies (conscious or not) to target certain groups and to protect others, differential access to lawyers, children being tried and sentenced as adults, money and wealth influencing judicial outcomes, pressure to give false confessions and to plead guilty, biases in sentencing and in the use of the death penalty, and so on.
Well beyond the judicial remedies, is there not more that should be done to acknowledge and remedy the wrongdoings of the past — particularly when their harms and underlying causes are still with us today?
George Frierson, who has devoted the last decade to bringing attention to the Stinney case, recently called for an official apology:
“I believe that South Carolina owes the Stinney family and the citizens of South Carolina a public, official apology . . . . South Carolina is still stigmatized. We are the state that put the youngest person to death in the 20th century. That stain will not be washed away until there’s a public apology.”
Frierson added: “Our sitting governor wasn’t born when this atrocity happened 70 years ago. But she’s in the governor’s seat now and she needs to do what the governor of South Carolina in 1944 should’ve done.”
Frierson’s request seems apt — and yet our society has no formal mechanism for addressing the collective wrongs of the past. Why is that? Even mere words of apology — which do not cost jobs, weaken our national defense, increase our deficit, encourage illegal immigrants, or threaten the meaning of the family — are rare even when the wrongs were beyond debate.
Consider the history of lynching in this country, a history which formed the backdrop of the Stinney case.
Lynching took the lives of roughly 5000 people between 1882 and 1968, most of them black men. At the turn of the last century, more than 100 lynching incidents were reported each year, many of them publicly orchestrated to humiliate the victims and instill fear in others. Lynching occurred in all but four states in the contiguous United States, and less than 1 percent of the perpetrators were brought to justice.
Still, it wasn’t until 2005, 105 years after the the U.S. Senate first refused to pass an anti-lynching bill, that the Senate issued an apology for its failure to enact federal anti-lynching legislation. That was the first time the body has apologized for the nation’s treatment of African Americans.
In fact, the federal government has yet to apologize for slavery.
Every year for the last 25, U.S. Representative John Conyers has introduced a bill intended to create a commission to explore the possibility of reparations. The bill has gone nowhere. There would appear to be no interest in even studying or discussing the history of racial injustice in this country.
Why doesn’t justice trump finality, truth triumph over power, and self-examination win out over system-affirmation? The problem is in part that we have neither the mechanisms nor the stomach for confronting the many profound, collective wrongs that define us. As flawed as our system of justice is for dealing with current, individualized injustices, our system is even more deficient with respect collective injustices.
Again, perhaps we would have more of an appetite for such institutions if the stained threads of the past were not so visible in the present. But, alas, they are quite plain.
Judge Mullen’s decision last week in the George Stinney case provides an opportunity to ask questions that we should get in the habit of asking. If situations like police interrogations can lead innocent suspects to confess to a crime that they didn’t commit, doesn’t that (together with evidence from the mind sciences — see below) suggest that that situational forces in the criminal law system may be distorting outcomes in many settings? When we know that processes can be rigged to reach conclusions, why do we give so much legitimacy to those processes? Under what conditions should we trust the outcomes of a broken criminal law system?
What to do?
Sonya Williamson, an Alcolu resident who was born decades after the events, said that she nonetheless grew up hearing about the case and that she believes in George’s innocence. Her grandfather had attended the trial and spoken about how the defendant was taken to court in a cage and could hardly walk under the weight of the shackles. Her grandfather did not believe in George’s guilt and would occasionally say that “[t]hat colored boy didn’t do that.”
Sonya is haunted by that doubt and wonders “[w]hy did he not speak out?”
We are all where George Frierson and Steve McKenzie recently found themselves or where Sonya Williamson’s grandfather once found himself: operating within or being governed by — for better or worse — a legal system that replicates our best and worst tendencies.
What are we to do about that?
- US lawyers seek retrial for teen executed in 1944, Legal Monitor Worldwide (Jordan) 2014 WLNR 1673889.
- 1/25/14 N.Z. Herald B005, New Zealand Herald.
- 3/23/14 The Observer (U.K.) 26, Guardian News & Media Limited.
- Karen McVeigh, Observer Magazine: George Stinney was executed at 14 (2014).
- Campbell Robertson, Judge Vacates Conviction in 1944 Execution, 2/18/14 N.Y. Times A28.
- 12/19/14 L.A. Times 10.
- Jeffrey Collins, 1/21/14 Postmedia News (Can.)
- David Zucchino, ‘I never saw my brother alive again,’ THE NATION 2014.
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For some related posts from the Situationist Blog, see the following:
- The Implicit Situation of Criminal Justice
- Implicit Bias in the Courtroom
- Nancy Gertner on The Situation of Dispositionist Criminal Sentencing
- Why Race May Influence Us Even When We “Know” It Doesn’t
- Jennifer Eberhardt’s “Policing Racial Bias” – Video
- Guilt and Racial Prejudice
- The Racial Situation of Criminal Juries and the Consequences
- The Situation of Capital Punishment – Abstract
- The Situation of Death Row
- Why We Punish
- Black History is Now
- The Situation of Perceived Intentionality
- The Situation of Blaming Rihanna
- The Situation of Punishment (and Forgiveness)
- The Situation of Punishment
- The Norfolk Four and the Situation of False Confessions
- “The Situation of False Confessions -1
- The Situation of False Confessions – 2
- A Situationist View of Criminal Prosecutors
The fifth and final session of the Criminal Justice Program’s Race, Place, & Policing: What Can We Learn From Baltimore series (cosponsored by the Systemic Justice Project) is this Monday, Feb 29th at 5:30pm in WCC2009.
The session will feature a panel of Baltimore-based advocates who approach criminal justice reform, racial justice, and access to opportunity from several different angles. The panel will include:
- Prof. Douglas Colbert, Univ. of Maryland, Francis King Carey School of Law
- Natalie Finegar, Deputy District Public Defender for Baltimore City
- Tawanda Jones, West Coalition
- Sonia Kumar, ACLU of Maryland
- Dayvon Love, Leaders of a Beautiful Struggle
- Del. Alonzo T. Washington, Maryland House of Delegates
Systemic Justice Project alums Whitney Benns and Blake Strode have a powerful and vital piece in The Atlantic about 21st century debtors’ prisons in St. Louis, but really about systemic racism. They write:
As the recent deluge of reports and litigation confirms, and many have long known, thousands of people throughout the St. Louis metropolitan area are routinely sent to jail because they cannot pay local court fines and fees. These people are poor, and they tend to be black. While there are many terms to describe this—including, importantly, unconstitutional—there is one with historical resonance reserved for such a practice: debtors’ prison.
Whitney and Blake use the terminology of systemic intent to explode the false dichotomy between individual intent (which is easy to isolate and condemn) and amorphous systems (identification of which as often leads to helpless shrugs as to calls for action):
There is a tendency to understand intent, much like racism itself, as only an interpersonal phenomenon. Bias, both conscious and unconscious, is real and destructive. But the systemic intent at work in a place like St. Louis is more a matter of inertia than personal biases. Like Frankenstein’s monster, the system has a life of its own. Local courts and jails are not rife with injustice and racial disparity because they are staffed with ill-meaning personnel; they exhibit these problems because they are the product of structures and policies designed with racial hostility. That is to say, ultimately, these structures and policies have worked precisely as planned.
Their weaving together of the individual and the systemic reminds us that it is the decades of deliberately racist intent that allows racism today to be hidden “in the seemingly colorblind tedium characterizing the bulk of city affairs.”
The story of the debtors’-prison crisis in St. Louis is partly one of individual failings by local officials and institutional actors whose job security depends on collective indifference to the status quo. But to regard the story solely, or primarily, as one of individual failings is to fundamentally misunderstand the problem itself as well as the structural forces responsible for the design of the region. This design did not emerge last week, last month or last year. It is the many-headed hydra produced by conscious and sustained efforts many decades ago.
I highly, highly recommend that you read the full piece here.
The fourth session of the Criminal Justice Program of Study, Research and Advocacy’s series on Race, Place and Policing: What we can Learn from Baltimore is tomorrow! Andrés Alonso, Professor of Practice at the Harvard Graduate School of Education and former CEO of Baltimore City Public Schools, will be speaking at noon in Pound 100.
Alec Karakatsanis (a member of our Board of Advisors) writes with news about a case that he helped spearhead in which a federal judge in Georgia yesterday “granted a class-wide preliminary injunction forcing the City of Calhoun to end its unconstitutional use of cash bail to keep impoverished people in government cages after their arrest.”
Here are two excerpts from the thoughtful, 74-page opinion (pdf here):
“Certainly, keeping individuals in jail solely because they cannot pay for their release, whether via fines, fees, or a cash bond, is impermissible. . . . Any bail or bond scheme that mandates payment of pre-fixed amounts for different offenses to obtain pretrial release, without any consideration of indigence or other factors, violates the Equal Protection Clause. The Equal Protection Clause of the Fourteenth Amendment generally prohibits “punishing a person for his poverty.” . . . This principle has special implications as it relates to depriving a person of his liberty. Attempting to incarcerate or to continue incarceration of an individual because of the individual’s inability to pay a fine or fee is impermissible. . . . This is especially true where the individual being detained is a pretrial detainee who has not yet been found guilty of a crime.”
“The Court ORDERS Defendant to implement post-arrest procedures that comply with the Constitution, and further ORDERS that, unless and until Defendant implements lawful post-arrest procedures, Defendant must release any other misdemeanor arrestees in its custody, or who come into its custody, on their own recognizance or on an unsecured bond in a manner otherwise consistent with state and federal law and with standard booking procedures. Defendant may not continue to keep arrestees in its custodyfor any amount of time solely because the arrestees cannot afford a secured monetary bond.”
Alec is hopeful “that opinions like this–from an experienced federal judge who has been on the federal bench for nearly 40 years–can help spread throughout our legal system the basic principle that no human being should be held in a cage because of her poverty. We are getting closer each day to making that principle a reality.”
Great news from Alec Karakatsanis (a member of our Board) about another step toward justice.
Alec’s team won a major victory last night against money bail and private probation in Rutherford County, Tennessee. The federal court in Nashville issued a 20-page opinion (see pdf link below) condemning the use of money bail to keep misdemeanor probationers in jail prior to revocation hearings. The judge ordered sweeping changes to the way that thousands of cases are handled. The judge also ordered the release of all of the prisoners, meaning that potentially hundreds of people will be home for the holidays and prevented from being jailed because of their poverty in the coming months.
Agreeing with the local Sheriff (see video above), the federal judge made some sweeping statements about the injustice of private probation. Here is a sample:
The use of secured money bonds has the undeniable effect of imprisoning indigent individuals where those with financial means who have committed the same or worse probation violations can purchase their freedom. This effect stands in flat contradiction to the long-held and much-cherished principle that “[t]here can be no equal justice where the kind of [treatment] a man gets depends upon the amount of money he has.” . . . . The Fourteenth Amendment precludes imprisoning someone because he or she does not have enough money: “When a defendant is imprisoned for financial inability to pay a fine immediately, he is treated more severely than a person capable of paying a fine immediately. The sole distinction is one of wealth, and therefore the procedure is invalid.” . . .
Defendants in this case have determined that PCC probationers are eligible for immediate release upon payment of a monetary bond. They make this determination without any inquiry into indigency. In so doing, Defendants deny release only to those too poor to post bond, meaning that one’s freedom is conditioned upon one’s financial resources. The Constitution protects those in the criminal justice system from such perverse contingencies.
In sum, all four of the factors a court considers when presented with a request for a preliminary injunction weigh in favor of granting the sought-after relief. . . . A preliminary injunction is an extraordinary remedy never awarded as of right. But the injustice perpetrated here is just that: extraordinary.
The Criminal Justice Program of Study is hosting what looks like an incredible conference called New Ledes: The Media & Criminal Justice Reform this Thursday and Friday at HLS. Event website here and program here:
Thursday, November 19, 2015
Panel 1 – Defining the “Moment”: Covering Criminal Justice in the Current Media Environment (3:00 p.m. to 5:00 p.m.)
The media environment for criminal justice issues has transformed – systemic problems have received sustained attention, and the tone of coverage is hospitable to reform. Why has that shift taken place? Does this reflect changing attitudes or tastes among the media’s consumers? Institutional transformations in media organizations? A shift away from media “organizations” to citizen journalism? Better advocacy by reformers and activists? An emerging “consensus” in favor of reform among elites in the media and policy world?
- James E. Johnson (Debevoise & Plimpton/Board of Directors, Brennan Center for Justice)
- Bill Keller (The Marshall Project)
- Heather Mac Donald (The Manhattan Institute)
- Brent Staples (The New York Times)
- Nick Turner (The Vera Institute)
Friday, November 20, 2015
Breakfast – 8:30 a.m. to 9:00 a.m.
Panel 2 – Blind Spots: Institutional Barriers to Effective Coverage of Criminal Justice (9:00 a.m. to 10:30 a.m.)
Reform of the criminal justice system has gained considerable momentum – supported, in part, by increased attention in the media to systemic problems. But important gaps remain between the realities of the criminal justice system and the picture presented in the most influential media outlets. What are the most significant blind spots or biases in the media’s treatment of the criminal justice system? What institutional factors account for those shortcomings? Are there intangible cultural factors within media outlets that contribute to those blind spots? Where can new media fill the gaps?
- Julie K. Brown (The Miami Herald)
- Lincoln Caplan (Yale Law School)
- Rev. Vivian Nixon (College and Community Fellowship)
- Simone Weichselbaum (The Marshall Project)
Panel 3 – Innovation, New Media, and Criminal Justice Reform (11:00 a.m. to 12:30 p.m. )
New media and social media have catapulted criminal justice issues into the center of the national conversation. How has social media allowed activists to reframe media priorities or story lines? To what extent has “citizen journalism” – as exemplified by video of police-civilian encounters – reoriented institutional journalism around criminal justice? How have media organizations leveraged the reach and structure of new media tools to amplify the effect of traditional “old media” tools in approaching criminal justice?
- Morgan Hargrave (Witness)
- DeRay McKesson (We the Protestors)
- Carl Williams (ACLU of Massachusetts)
- Ethan Zuckerman (MIT/The Berkman Center)
Lunch – 12:30 p.m. to 2:00 p.m.
Panel 4 – Making News: When Journalists Drive Change in Criminal Justice Policy (2:15 p.m. to 3:45 p.m.)
How does journalism drive sweeping change in criminal justice policy? In this panel, we explore how journalism can catalyze fundamental shifts in criminal justice policy and the limits to even the most high-impact journalism in bringing about change.
- Ken Armstrong (The Marshall Project)
- Charles Hoffman (Office of the Appellate Defender for the State of Illinois)
- Jennifer Gonnerman (The New Yorker)
- Scott Levy (Bronx Defenders)