George Stinney and the Lessons of History

Stinney 260

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.

The Case

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.

Power

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.”

Olin Johnston Governor SC

Governor Olin Johnston

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, center right (with Bruce Hamilton, 21, center left) both enter the death house in the state prison in Columbia, where they were executed

George Stinney, center right (with Bruce Hamilton, 21, center left) both enter the death house in the state prison in Columbia, where they were executed

The Execution

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 Aftermath

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.

Judge Carmen Mullen

Judge Carmen Mullen

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.”

The Confession

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.

Opinion Conclusion

Excerpt from Judge Mullen’s Opinion

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.”

George Frierson leads protest on courthouse steps (2013)

George Frierson leads protest on courthouse steps (2013)

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.”

Opposition

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.”

Asymmetric Injuries

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.”

Amie Ruffner

Amie Ruffner

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.

Today

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.

Pressing Questions

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?

Online Sources:

Other Sources:

  • 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.

Related Videos:

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For some related posts from the Situationist Blog, see the following:

Fair Punishment Project

FPPLogo

Letter from the Charles Hamilton Houston Institute and the Criminal Justice Institute, about an exciting and important new project at Harvard Law School:

Dear Friends and Colleagues:

We’d like to introduce the Fair Punishment Project (FPP), a brand new initiative brought to you by Harvard Law School’s Charles Hamilton Houston Institute for Race & Justice and its Criminal Justice Institute.

The Fair Punishment Project uses legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project works to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.

We’ll be releasing our first report in the next day or two, so keep an eye out–you don’t want to miss it.

Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America’s top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr, and is led by David Harris and Johanna Wald. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.

The Criminal Justice Institute, also founded by Charles Ogletree, trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute conducts research on the criminal and juvenile justice systems in order to achieve local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.

Thank you,

David J. Harris, Charles Hamilton Houston Institute
Charles J. Ogletree, Charles Hamilton Houston Institute
Ron Sullivan, Criminal Justice Institute

Real Talk 4: Ariel Eckblad

ariel-headshot
By Ariel Eckblad

There have been at least 13 iterations of this piece. Last December, the first draft began—

In November, someone placed strips of black tape over the portraits of tenured black professors at Harvard Law. Today, as I read “Between the World and Me,” Ta-Nehisi Coates told me, “hate gives identity.”[1] I was, at first, unsure whether I agreed with his assertion in its totality. I think my initial reticence to accept this statement stemmed from the absolutism embedded in its brevity. Hate may indeed give identity. I have also watched as love, affiliation, and the irreplaceable sense of worth that stems from authentic human connection provides a similar sense of belonging. And still, beyond the inquiry of veracity, is the question of applicability.

As I returned to edit, initially hoping that a cursory glance would be sufficient, I found myself paralyzed. Each “edit” felt pitifully sterile, laced with an almost comedic anachronism. How does one wax eloquent about love when presidential candidates are being rewarded for spewing vitriol? How can I write about affiliation when my peers are sleeping in Belinda Hall because during the day the world tells them that even at HLS they don’t quite fit? What is “authentic human connection” when the prevailing ethos often seems to be one of exclusion, wall-building, and atomization? And so, I made trivial alterations—replacing and misplacing commas—stalling so I did not have to publish the piece.

After my 12th attempt at editing, there was one bit that continued to menace—

Marking the faces of black professors is a hateful act. I wonder could such an act be interpreted as perverse attempt to ground one’s identity? More specifically, if identity is defined as the story we tell ourselves about ourselves, when this story feels threatened is hate an attempt to salvage it? And if yes, what is the role of facilitated dialogue in ensuring that such acts do not happen again? If the undergirding question is one of identity, what then is the answer?

I still cringe. Why? Simply, I bristle because I do not know the answer. The tape used to cover the faces of black professors had, earlier that day, been used to hang signage explaining why the “Royall Must Fall.”[2] The Royall Must Fall movement, which seeks to change the HLS crest—a crest that once belonged to a family of slaveholders—is at least in part undergirded by questions of identity. Students are questioning what it means to claim/attend/be part of an institution that brands itself with a symbol that once served as tacit legitimization of violent oppression. Are the reactions to this movement—ranging from denial to denunciation—also driven by identity or a fear that one’s identity is somehow being threatened? Sociopolitical shifts in our school, our communities, our country, and our world force us to confront the story we tell ourselves about ourselves. In this shadow of such shifts, are we not all seeking to determine if/how/where we belong? Perhaps. And still, the question remains so what?

In the 7th version of this piece, I sought to answer this “so what?” and find some sort of silver lining. I asserted—

And still my impulse, given my lens as a student of alternative dispute resolution (ADR), is to assess whether ADR can serve as a mechanism of reconciliation. The question of identity provides a bit of hope. Maybe, it does not have to be like this? If many (some? a few? a handful?) of hateful acts stem from a desire to assert/protect/guard/shield the story we tell ourselves about ourselves then ADR can be used to provide an alternative story…maybe the power of dialogue stems from its ability to establish a “shared identity between two aggrieved or separated parties.”[3] Possibly dialogue can be used to foster love, compassion, and empathy. Perhaps, this can also “give identity.”

This is the 13th version of this piece and I am still unsure how to conclude. I want so desperately to believe in the power of dialogue to bridge difference, rebuild identity, and heal broken communities. My identity as a student and teacher of ADR hinges on this conviction. And still, I wonder if there are moments when people seek so desperately to belong that they will exclude in order to do so. I question whether, when this occurs, dialogue can ever serve to rebuild or reunite. Maybe the reality is that both of these are true, hate or love can ground our identities. Perhaps the onus is on us to consistently choose the latter.

 

[1] Coates, Ta-Nehisi. Between the World and Me. New York: Spiegel & Grau, 2015. Print.

[2] The Royal Must Fall movement is a student movement that believes that the HLS “crest is a glorification of and a memorial to one of the largest and most brutal slave owners in Massachusetts. But Isaac Royall, Jr.” and therefore, the HLS crest must be altered. See: Johnson, Antuan, Alexander Clayborne, and Sean Cuddihy. “Royall Must Fall | Opinion | The Harvard Crimson.” Royall Must Fall | Opinion | The Harvard Crimson. Web. 14 Jan. 2016.

[3] Kim, Sebastian C. H., and Pauline Kollontai. Peace and Reconciliation In Search of Shared Identity. Farnham: Ashgate, 2008. Print.

Tentative Schedule Our 2016 Conference

2016 Systemic Justice Conference:
Access, Inclusion, Protest, Education

conference-logo (1)More info at https://systemicjusticeconference.wordpress.com/

Friday, April 8, 2016 – Access

  • 12:00 – 12:15 PM: Lunch pickup & Introductions (WCC – 2012)
  • 12:20 – 1:40 PM: Access to Justice Presentation (WCC – 2012)
  • 1:40 – 2:40 PM: Justice Showcase #1 (WCC – 2012)
  • 2:40 – 2:55 PM: Coffee/Tea Break (WCC – 2012)
  • 3:00 – 3:50 PM: Showcase Presentations (WCC – 2012)
  • 4:00 – 5:20 PM: Access to Food Presentation (WCC – 2012)
  • 5:20 – 5:30 PM: Friday Wrap-Up (WCC – 2012)

Saturday, April 9, 2016 – Criminal Justice & Campus Protests

  • 9:30 – 9:45 AM: Continental Breakfast (Pound Hall)
  • 9:45 – 10:00 AM: Morning Introductions (Pound Hall)
  • 10:00 AM – 11:00 AM: KEYNOTE: Dean Strang (Pound Hall)
  • 11:10 AM – 12:30 PM: Right to Counsel Presentation (Pound Hall)
  • 12:30 – 12:45 PM: Lunch Pickup (Pound Hall)
  • 12:45 – 1:30 PM: Systemic Lawyering Panel (Pound Hall)
  • 2:00 – 3:00 PM: Justice Showcase #2 (Pound Hall)
  • 3:00 – 3:15 PM: Coffee/Tea Break (Pound Hall)
  • 3:30 – 4:50 PM: Campus Protests/Movement Panel (Pound Hall)
  • 5:00 – 6:00 PM: Student Narratives (Pound Hall)

Sunday, April 10, 2016 – Legal Education

  • 10:30 – 11:00 AM: Brunch (Pound Hall)
  • 11:00 AM – 12:20 PM: Legal Education Presentation #1 (Pound Hall)
  • 12:30 – 1:00 PM: Legal Education Presentation #2 (Pound Hall)
  • 1:00 – 1:15 PM: Pick up Lunch (Pound Hall)
  • 1:20 – 2:00 PM: Legal Pedagogy 2.0 Panel (Pound Hall)
  • 2:00 – 2:40 PM: Systemic Curriculum Panel (Pound Hall)
  • 2:50 – 3:20 PM: Breakout Session (w/coffee/tea) (Pound Hall)
  • 3:20 – 4:00 PM: Movement Building & Wrap-up (Pound Hall)

May the Force be With You

carson
By Carson Wheet

I love negotiation theory. In fact, I hope to make a long career out of teaching others how to negotiate effectively, but every time someone asks me about my future profession, their eyes glaze over as I describe how one can use empathy and self-awareness to get what he or she wants. I have discovered that, to many people, effective negotiation is little more than a combination of deception, strong-arming, and mind control:

It’s tricking some sucker into paying twice what a car is worth.

It’s using leverage to fleece a business partner for every penny she’s got.

It’s convincing a group of Stormtroopers that “These are not the droids you’re looking for.”

Although I realize that the last situation may seem out of place, the recent Star Wars craze has compelled me to consider parallels between negotiation and the Star Wars universe. In that pursuit, I have discovered that, much like “The Force,” negotiation tactics can be used for good, but they can also have a “Dark Side.”

As I mentioned earlier, two underlying principles of effective negotiation are empathy and self-awareness. When one is not only empathetic toward the other side’s position, but also self-aware of his or her own interests, goals, and defaults, it is much easier to obtain a good result. This is because one can better create value working with, rather than against, a counterpart, and it is much easier to get what you want when you fully understand what you want. Nevertheless, being empathetic to a counterpart is often seen as “soft” or “weak.” People fear that working with a negotiation counterpart opens the door for that counterpart to take advantage of them. As Master Yoda said, though, “Fear is the path to the dark side.”

Fear is at least one major reason why people use difficult tactics. People fear being taken advantage of or “losing” a negotiation so they will often deceive, strong-arm, or trick a counterpart before the same can be done to them. There is a generally held notion that nice people get taken advantage of, so in order to negotiate effectively, you have to be “tough.” While aggressive or deceitful tactics can be effective negotiation techniques in the short term, they often have a deleterious effect on future negotiations. To demonstrate this point, consider how you would respond if someone were aggressive or deceitful towards you in a negotiation. Seriously…think about it…

I’ll wait…

Got it?

Good.

I am willing to bet that your reaction would be either to swear a solemn vow to never deal with that person again or to fight fire with fire.[1] Neither outcome is conducive to a long-term relationship, but I would imagine that your reaction would be exponentially more visceral if the negotiation had touched on a central piece of your identity such as gender, race, nationality, or religion. Emotionally charged negotiations require emotional intelligence, which is sadly neglected in most law school settings. Fortunately, this past semester I was able to participate in a pilot program called Real Talk, which was designed to facilitate constructive conversations about emotionally sensitive subjects like race, gender, and identity.

My role in Real Talk was to facilitate dialogue about sensitive issues among six of my classmates from diverse backgrounds. Despite the fact that this blog began with a discussion about negotiations, I want to be clear that there is a huge difference between negotiation and facilitation. Whereas negotiation is about getting what you want and convincing another party to agree to something, facilitation is about opening space for others to express themselves and hear perspectives that are different from their own. In Real Talk, my goal as a facilitator was to foster safe and constructive dialogue about issues that affect our campus and nation as a whole such as racism, sexism, and white supremacy. Although Real Talk sessions were not negotiations, many of the tools and emotional intelligence that I had developed to manage emotional negotiations turned out to be extremely helpful in facilitating these discussions. In my small group, I utilized effective negotiation techniques such as asking open-ended questions, paraphrasing responses, and acknowledging emotions in order to foster deep and meaningful conversations.

Midway through the semester, I was very happy with the conversations that were taking place in my Real Talk group and I was personally satisfied with how I had begun confronting difficult conversations in my own life. I had finally stopped tip-toeing around controversial issues and, to be honest, I was pretty proud of myself—that is, I was proud of myself until one day in late November when I tried talking about racism with a good friend of mine. In response to my invitation to talk, my friend said, “You and me can talk [un]til we’re blue in the face, but it won’t change ****.” As a result of this exchange, I began having doubts about the significance of Real Talk and difficult conversations as a whole. In the face of so many difficult issues, maybe conversation was pointless? Maybe Dark Side negotiation tactics were the answer after all? Maybe change is only possible when you force people to do what you want? As I look back on the semester now though, you might say that I have “A New Hope” for the role of conversation in helping people get to a place where change becomes possible.

Nationally, there is reason to believe that the recent media attention given to race issues in America has shed light on institutional oppression and changed the minds of many who believed that racism was a thing of the past. A recent study reveals that in the past eighteen months, a significant percentage of Americans went from believing that the country had achieved equality to believing that changes need to be made to the status quo. Anecdotally, I have personally witnessed the transformation of individuals from indifferent bystanders to zealous advocates for racial justice. Their transformation was not the result of deception, strong-arming, or Jedi mind tricks. Their transformation was facilitated by conversations that increased empathy, understanding, and humanity and thereby opened people’s minds to the possibility of something else. In other words, talking can “change ****.” It is not always fast and it is not the sexiest agent of change, but it is available to all of us and costs nothing to try. If you do try, sincerely and consistently, you may find, as I have, that conversations about sensitive issues can make someone question truths that he or she never doubted until they heard the story told from another person’s perspective.

For all my Star Wars references in this blog, I actually disagree with the premise of someone being an agent entirely of the dark side or the light side. As Darth Vader showed us in the end, we are all full of nuances and contradictions. Good and evil. We are capable of enriching the lives of others and depressing those who stand in the way of our desires. The moments that define who we are and what we stand for are ever-present. It falls to each one of us to determine how we want to proceed in those moments. Do we want to live in fear and take advantage of people before they can do the same to us? Or do we want to put down our light sabers for a moment—to actively seek and consider the perspectives of people who think differently than us? Conversations can change people, but they can’t start themselves. It falls on each of us to incorporate some version of Real Talk into our daily lives if we are to overcome all the fear and misunderstandings that exist among strangers.

Help me, dearest reader. You’re my only hope!

[1] See Roger Fisher, William Ury & Bruce Patton, Getting to Yes: Negotiating Agreement without Giving In 131 (3d ed. 2011).

“They Came in Like Rambo”

SearchWarrant

From Today’s Washington Posta major investigation about the systemic trauma inflicted on the black community by the militarized and unconstitutional search warrant practices of the DC police.  (The article highlights the important work being done by by Systemic Justice Project Board of Advisors member Alec Karakatsanis.)  Here’s an excerpt:

Sallie Taylor was sitting in her apartment in Northeast Washington one evening in January 2015 watching “Bible Talk” when her clock fell off the wall and broke. She turned and looked up. Nine D.C. police officers smashed through her door, a shotgun was pointed at her face and she was ordered to the floor.

“They came in like Rambo,” said Taylor, a soft-spoken 63-year-old grandmother who was dressed in a white nightgown and said she has never had even a speeding ticket.

The heavily armed squad thought they were searching the residence of a woman arrested two miles away the previous night for carrying a half-ounce vial of PCP.

Taylor, who did not know the woman, was terrified. Trembling, she told police that the woman did not live there. Officers spent 30 minutes searching the house anyway, going through her boxes and her underwear drawer. They found no drugs and left without making an arrest.

The search warrant executed at Taylor’s apartment cited no evidence of criminal activity there. Instead, in an affidavit to a judge, police argued that they should be able to search for drugs there based on their “training and experience” investigating the drug trade. They relied on an address they found in a court-records system for the woman arrested with PCP.

A Washington Post review of 2,000 warrants served by D.C. police between January 2013 and January 2015 found that 284 — about 14 percent — shared the characteristics of the one executed at Taylor’s apartment. In every case, after arresting someone on the street for possession of drugs or a weapon, police invoked their training and experience to justify a search of a residence without observing criminal activity there. The language of the warrants gave officers broad leeway to search for drugs and guns in areas saturated by them and to seize phones, computers and personal records.

In about 60 percent of the 284 cases, police executing the warrants found illegal items, ranging from drug paraphernalia to guns, The Post found. The amounts of drugs recovered were usually small, ranging from residue to marijuana cigarettes to rocks of cocaine. About 40 percent of the time — in 115 cases — police left empty-handed.

In a dozen instances, The Post found, officers acted on incorrect or outdated address information, subjecting such people as Taylor to the fright of their lives.

Almost all of the 284 raids occurred in black communities. In 276 warrants in which The Post could determine a suspect’s race, just three originated with arrests of white suspects. The remaining 99 percent involved black suspects. In the District, 94 percent of people arrested in 2013 for gun or drug charges were black, according to FBI crime data.

The 284 warrants reviewed by The Post differ from the usual pattern of police warrants. D.C. police have said at public hearings that the typical raid happens only after undercover officers or confidential informants have purchased drugs or guns from inside a home or police have conducted surveillance there.

The searches are occurring at a time when public attention is highly focused on interactions between police and blacks nationwide, with the rise of the Black Lives Matter movement and concern about the aftereffects of the drug war. In Maryland this month, lawmakers proposed legislation that would require police to reimburse residents for damage to their property when police execute a warrant and find nothing. In Philadelphia, police were criticized in October by the executive director of the city’s citizen review board for harsh treatment of residents during raids.

The Fourth Amendment to the U.S. Constitution protects citizens from “unreasonable searches,” generally requiring government agents to obtain a warrant from a judge by showing they have probable cause to think that they will find a specific item at a specific location. In recent decades, police have been given wide latitude by the courts to conduct searches aimed at removing drugs and guns from the streets.

Attorney Alec Karakatsanis, of the nonprofit group D.C.-based Equal Justice Under Law, said warrants that rely on training and experience as justification for a search subject the black community to abusive police intrusion based on flimsy investigative work. In the past two years, he has filed seven civil rights lawsuits in federal court challenging D.C. police’s practice of seeking search warrants based solely on an officer’s training and experience.

“They have turned any arrest anywhere in the city into an automatic search of a home, and that simply cannot be,” said Karakatsanis, who spent three years studying the issue, starting when he worked at the Public Defender Service for the District of Columbia. “It would work a fundamental change in the balance of power in our society between government agents and individual rights.”

***

Read the entire article here.

Read more about the work that Alec and Equal Justice Under Law are doing here.

In an e-mail, Alec emphasized that:

“the stakes are enormous.  The D.C. police have defended their right to enter any person’s home based solely on the person being related to or associating with any person that police have arrested, and the police have claimed in federal court that they have the right to strip search any person they find in any home, even innocent people and even children as young as six years old.”

Related posts here.

Open Letter to HLS Community

scales_of_justice

An Open Letter to the Harvard Law School Community from the staff of the Student Practice Organizations (SPOs):

We, the below named staff of the Harvard Prison Legal Assistance Project, Harvard Defenders, and the Tenant Advocacy Project, wish to state our support for the demands put out by Reclaim Harvard Law. The list of demands can be found here.

SPOs are unique at Harvard Law School in that we meet students early – many in the first weeks of 1L year – and we often get to spend the next three years with them and get to know them well. Many of our programs also welcome LLM students, and students who discover a passion for public interest work later in their law school careers. Since we don’t grade our students and they participate in our programs voluntarily, our relationships with them are different than they might be in a class or a graded clinic.

Like many other clinical programs at Harvard Law School, the SPOs focus on assisting disadvantaged clients. Our clients are often caught in the crosshairs of multiple oppressions. Systemic and individual racism is a concern for us for our students, our clients, and ourselves.

Our students, clients, and colleagues inspire us every day. We look forward to engaging with the rest of the Harvard Law School community in dialogue, and particularly in action to make this institution truly a place in pursuit of justice for all.

Signed,
Elizabeth Blake, Tenant Advocacy Project
John Fitzpatrick, Harvard Prison Legal Assistance Project
Maria Leister, Harvard Defenders
Sarah Morton, Harvard Prison Legal Assistance Project
Marcia Peters, Tenant Advocacy Project
John Salsberg, Harvard Defenders
Joel Thompson, Harvard Prison Legal Assistance Project
Lynn Weissberg, Tenant Advocacy Project

Related letters of support:

-Open Letter to HLS Community

-Letter of Support

Facilitation Challenges: Navigating the Space Between Neutrality and Identity

lindsey-whyte
By Lindsey Whyte

As a brand-new student in the art of facilitation, one of my first lessons was in the importance of maintaining neutrality on the substance of discussion and, relatedly, in the value of calling in an outside facilitator to a sensitive discussion. The theory underlying this concept is that, by remaining neutral as to content, the facilitator is able to focus her undivided attention on the conversation’s process and on its participants.  Seasoned facilitators confirm this theory with experience, offering stories of past facilitations in which their status as a complete outsider, or their relative unfamiliarity with the substance of discussion (as compared to the conversation participants), was actually their greatest asset.  By arriving to the conversation as a neutral party and setting that expectation with the group up front, an outside facilitator is freed of potentially charged or problematic aspects of her identity – such as “insider” or “partisan” status, hierarchical power, decision-making authority, or potential bias – taking the focus away from her own thoughts or views on the substance and shifting it fully to the views of the dialogue’s participants.  Having quelled participants’ worries that she may be passing judgment on their comments or harboring a hidden agenda behind her process moves, the neutral facilitator gives herself, and the group, the best chance of drawing out the truest version of all perspectives, and thus of helping the group do its best work.

This lesson didn’t come naturally to me. One of the ways in which I connect with new people is through commonalities.  In a sense, I offer pieces of my identity as a means of building common human ground, affinity, and trust with others.  This natural tendency surfaced in one of my first facilitations, a simulated community planning meeting to brainstorm possible uses of an urban park.  Seeking to build rapport and trust with one particularly frustrated participant, a dog owner, I acknowledged her frustration and added, “I’m a dog owner myself.”  No sooner had the words left my lips than I saw on my other participants’ faces that my good-natured comment had aligned me with that frustrated dog owner’s positions, wiping away any perception I’d managed to build of the “neutral facilitator” in one well-intentioned swoop.  In the conversation debrief, my suspicions were confirmed:  our frustrated dog owner felt validated and legitimized; the others felt less willing to give voice to their thoughts and concerns – fearing that I would be less receptive – and left the conversation feeling unheard.  Lesson learned.

In conversations delving into race, privilege, and oppression, the neutrality/identity tension becomes even more complex. For one thing, participants will likely perceive the facilitator to have certain visible characteristics – such as characteristics indicating a racial identity, to give one example – which may denote to the participants “insider” or “outsider” status quite apart from whether the facilitator is an “insider” or “outsider” with respect to the specific topic of discussion.  The facilitator may choose to acknowledge these visible characteristics with the group up front – and may choose to comment on how they impact the facilitator’s own perspective or to what extent they reflect the facilitator’s actual identity – but he or she may not be able to alter how these characteristics impact participants’ perceptions of his or her neutrality in the conversation.  Additionally, the facilitator may bring to the conversation possibly less visible – but no less potentially powerful – identity components around lived experiences of privilege (or relative lack thereof), or personal experiences with racism, sexism, classism, heteronormativity, or other manifestations of systemic power and oppression.  As human beings – particularly those of us who have grown up in this country, steeped as it is in an ongoing history of systemic and institutionalized oppression – these identity components affect our perspectives and our contributions to conversations, in ways both conscious and unconscious.  Here again, the facilitator may choose to acknowledge the presence of these less-visible identity components with the group, all while reaffirming his or her commitment to remaining in the role of neutral facilitator as much as possible.

Regardless, group participants may recognize that, if the facilitator were to participate in the dialogue, these less-visible identity components could still manifest themselves in her comments or reactions, and would in any event shape her views on the substance in a way that could feel decidedly non-neutral to participants. As a result – whether or not a facilitator chooses to acknowledge the visible components of her identity – refraining from participating in the conversation and thus from divulging these less-visible identity components can also be an important part of maintaining neutrality in the eyes of the group.

In my experience last semester facilitating a series of small group conversations that frequently examined racism and other forms of oppression both inside and outside our law school community, I navigated my own complex tension between neutrality and identity, even as I continued to learn what it means to be a skillful facilitator. On the one hand, I am still learning how to marshal the theory and practical skills I’ve learned, including on the subject of facilitator neutrality, to foster an inclusive space for participants to share diverse perspectives and listen to each other with resilience and curiosity.  On the other hand, I am a white woman for whom the pursuit of being a better ally in the fight for racial justice that feels both urgent and imperative to me is an everyday process, one in which my eyes are continuously opened to how I can be doing better and one whose chief catalyst is conversation with others.  Nor, as a student in the law school, was I an outsider to these particular conversations.  I, and my stance on these issues, were known to some of the participants in my small group – my peers – and cannot, in any way, be described as neutral on the substance.

As I reflected on these tensions over the course of our series of conversations as a small group, I began to wonder: are there some situations in which a facilitator’s aspirations of neutrality must remain aspirations only in the eyes of the group?  If so, are the interests underlying facilitator neutrality still served by the facilitator professing neutrality as to the substance to the group and refraining from sharing any of her own personal struggles or experiences?  What are the interests underlying facilitator neutrality in this context?

To touch on the last of these questions first, I’ve suggested some of those interests above – building trust; fostering an inclusive space where participants can share dissenting views and learn from each other, without fear of judgment; and making all participants feel equally heard and validated in the conversation. Others include giving the facilitator the mental bandwidth to focus on other, important aspects of her role, such as keeping the group faithful to pre-established group norms, working to ensure that all participants have a chance to share their thoughts, remaining mindful of time, and listening carefully to each participant, drawing out prevalent themes and areas of difference for group reflection.  In some sense, these aspects are the true essence behind the meaning of the word facilitator – the facilitator makes the process of engaging in conversation easier for her participants by freeing them to focus exclusively on the substance.  Accordingly, if the facilitator steps too far into the role of participant, she risks losing herself, too, in the substance, at the expense of her role as facilitator.

These important considerations notwithstanding, over the course of our Real Talk experiment, I reached the conclusion that there are times when a facilitator can meet the interests behind declaring herself to be officially neutral in other ways.  Indeed, these other ways may even feel more authentic to participants if the facilitator is not, in fact, an outsider, or if aspects of her identity feel – either to the participants or to the facilitator herself – difficult to reconcile with professed official neutrality.  This may be particularly true if the facilitator has the opportunity to work with a group over time and in smaller groups, where all participants have the opportunity to speak, listen, and share ideas.

The facilitator has a number of tools in her belt, aside from professing neutrality, for fostering a low-risk and inclusive space from the start, even (perhaps especially!) in potentially difficult or emotionally-charged conversations. To promote transparency, the facilitator can acknowledge the interplay between her identity and the subject of conversation, affirming her commitment to creating an inclusive space while also signaling the possibility that she may participate at some point in the future.  By crafting careful group norms that encourage participants to respect each others’ views – even while digging in to them and even while disagreeing – working with the group to adopt norms that work for them, and then holding the group to those norms, the facilitator begins to lay the foundation.  On to that foundation, the facilitator builds a structure of careful and active listening, encouraging quieter participants to share when it feels right and helping more active participants to make that space for their colleagues.  All the while, the facilitator takes her cues from the group, looking for indications that trust and inclusivity are present, even as disagreement and emotion surface.

Once she is assured that this structure is firmly in place, then might the facilitator begin to experiment with participating herself. In my experience, this should be done with purpose and intention, and, can also do much to meet some of the interests behind remaining neutral on the substance.  For example, particularly in intimate group settings, the facilitator may choose to share her own struggles, missteps, or vulnerabilities, signaling to the group that, far from sitting in judgment, she too is grappling with the same difficult questions.  In the right group atmosphere, this sharing of identity can build trust and reveal an authenticity that participants may find comforting.  And of course, like any intervention into the dialogue that a facilitator might make, this move could also risk alienating members of the group who do not experience a struggle around these issues, potentially causing them to withdraw from subject matter about which they may already feel distance, or discomfort.  The choice of whether or not to share this information may not seem easy or clear in the moment, or even in retrospect.  And, my suggestion here is only that, in certain contexts, it could be a helpful one.

There is no one right answer to how to navigate the tension between neutrality and identity, particularly in conversations about privilege and oppression that affect all of us – albeit in ways that may feel differently and of a different degree. By remaining carefully attentive to the needs of the group, and reflecting constantly on how her identity can interplay with that dynamic, the facilitator can begin to work through some of these questions, incorporating the invaluable teachings of those with whom she has the privilege of sharing dialogue.