by Paul Butler
77. Daria Roithmayr, “Barriers to Entry: A Market Lock-In Model of Discrimination,” Virginia Law Review 86:4 (2000) 731–32.
78. See Richard Delgado, “Zero-Based Racial Politics and an Infinity-Based Response: Will Endless Talking Cure America’s Racial Ills?,” Georgetown Law Journal 80:5 (1992): 1884 (“Racism is not a mistake, like parking in the wrong space or believing that the solar system has eight planets; rather, it is a means of subjugating another person or group”).
79. Gary Peller, Critical Race Consciousness: The Puzzle of Representation (New York: Taylor & Francis, 2012), 7.
80. Charles R. Lawrence III, “The Fire This Time: Black Lives Matter, Abolitionist Pedagogy and the Law,” Journal of Legal Education 65:2 (2015): 387.
81. 347 U.S. 483 (1954).
82. The Civil Rights Act, Pub. L. No. 88-352, 78 Stat. 241 (1964).
83. The Voting Rights Act, Pub. L. No. 89-110, 79 Stat. 437 (1965).
84. Kimberlé Williams Crenshaw, “Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law,” Harvard Law Review 101:7 (1988): 1346.
85. Ibid., 1346–47. See also Carbado, “Critical What What?,” 1607–8 (citing the abolition of slavery and Jim Crow, Brown v. Board of Education and massive resistance to school desegregation, and the reframing of Martin Luther King Jr.’s vision in terms of “color blindness” as three examples of the reform/retrenchment dialectic).
86. Derrick A. Bell Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93:3 (1980): 523.
87. Ibid., 523–25.
88. Ibid, 527.
89. Ibid., 527–28.
90. U.S. Department of Justice Civil Rights Division, “Investigation of the Ferguson Police Department,” (March 4, 2015), 71.
91. Ibid., 5.
92. Ibid., 33, 78.
93. U.S. Department of Justice Civil Rights Division, “Department of Justice Report Regarding the Criminal Investigation into the Shooting Death of Michael Brown by Ferguson, Missouri Police Officer Darren Wilson,” (March 4, 2015).
94. Ibid., 84.
95. Ibid.
96. See ibid. (citing Loch v. City of Litchfield, 689 F.3d 961, 966 (8th Cir. 2012) (holding that “even if a suspect is ultimately ‘found to be unarmed, a police officer can still employ deadly force if objectively reasonable’”) (quoting Billingsley v. City of Omaha, 277 F.3d 990, 995 (8th Cir. 2002)); Reese v. Anderson, 926 F.2d 494, 501 (5th Cir. 1991) (“Also irrelevant is the fact that [the suspect] was actually unarmed. [The officer] did not and could not have known this”); Smith v. Freland, 954 F.2d 343, 347 (noting that “unarmed” does not mean “harmless [sic]”) (6th Cir. 1992)).
97. Ibid., 8.
98. Ibid., 84.
99. Ibid.
100. Ibid, 85.
101. See Christopher R. Green, “Reverse Broken Windows,” Journal of Legal Education 65:2 (2015): 265.
102. U.S. Department of Justice Civil Rights Division, “Investigation of the Ferguson Police Department,” 70–78.
103. U.S. Department of Justice Civil Rights Division, “Department of Justice Report Regarding the Criminal Investigation,” 5.
104. John Eligon, “Ferguson Approves a Federal Plan to Overhaul Police and Courts,” New York Times, March 15, 2016.
105. United States v. Ferguson, No. 4:16-cv-000180-CDP (March 17, 2016), 19–20 [hereinafter Ferguson Consent Decree].
106. Ibid., 23.
107. 434 US 106 (1977).
108. Ferguson Consent Decree, 21.
109. See, e.g., Schneckloth v. Bustamonte, 412 U.S. 218 (1973) at 219 (“It is equally well settled that one of the specifically established exceptions to the requirements of both a warrant and probable cause is a search that is conducted pursuant to consent”).
110. Ferguson Consent Decree, 22.
111. 412 U.S. 218 (1973).
112. 536 U.S. 194 (2002).
113. Ferguson Consent Decree, 22.
114. Kimbriell Kelly, Sarah Childress, and Steven Rich, “Forced Reforms, Mixed Results,” Washington Post, November 13, 2015.
115. 42 U.S.C. § 14141(a) (2012).
116. Stephen Rushin, “Federal Enforcement of Police Reform,” Fordham Law Review 82:6 (2014), 3191.
117. Ibid., 3219–22.
118. Ibid., 3224–26.
119. Ibid.
120. Kelly, Childress, and Rich, “Forced Reforms, Mixed Results.”
121. Ibid.
122. Christopher Stone, Todd Foglesong, and Christine M. Cole, “Policing Los Angeles Under a Consent Decree: Dynamics of Change at the LAPD,” Harvard Kennedy School (2009).
123. Ibid., 6.
124. Ibid., 22.
125. Ibid.
126. Ibid., 24.
127. Ibid., i.
128. Ibid., ii.
129. Ibid., 34.
130. Ibid., 37.
131. Robert C. Davis, Christopher W. Ortiz, Nicole J. Henderson, Joel Miller, and Michelle K. Massie, “Turning Necessity into Virtue: Pittsburgh’s Experience with a Federal Consent Decree,” Vera Institute of Justice (2002), 55.
132. Ibid., 57.
133. Ibid., ii.
134. Semuels, “How to Fix a Broken Police Department.”
135. Elliot Harvey Schatmeier, “Reforming Police Use-of-Force Practices: A Case Study of the Cincinnati Police Department,” Columbia Journal of Law and Social Problems 46:4 (2013): 562.
136. Greg Ridgeway et al., “Police-Community Relations in Cincinnati,” RAND Corporation (2009), 89–90.
137. Semuels, “How to Fix a Broken Police Department.”
138. Nathalie Baptiste, “Urban Policing, Without Brutality,” American Prospect, July 20, 2015.
139. Ibid.
140. Kelly, Childress, and Rich, “Forced Reforms, Mixed Results.”
141. Rushin, “Federal Enforcement of Police Reform,” 3235 (“Even when internal policies favor aggressive enforcement of § 14141, the DOJ has only initiated around three new investigations per year”).
142. Samuel Walker, “Institutionalizing Police Accountability Reforms: The Problem of Making Police Reforms Endure,” Saint Louis University Public Law Review 32:1 (2012).
143. See Alan D. Freeman, “Race and Class: The Dilemma of Liberal Reform,” Yale Law Journal 90:8 (1981): 1882–84.
144. Crenshaw, “Race, Reform, and Retrenchment,” 1331–32.
145. Ibid., 1335.
146. Stone, Foglesong, and Cole, “Policing Los Angeles Under a Consent Decree,” i.
147. Ibid., 22.
148. Amy E. Lerman and Vesla M. Weaver, Arresting Citizenship: The Democratic Consequences of American Crime Control (Chicago: University of Chicago Press, 2014).
149. Kelly, Childress, and Rich, “Forced Reforms, Mixed Results.”
150. Crenshaw, “Race, Reform, and Retrenchment,” 1346–49.
151. Anthony E. Cook, “Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr.,” in Critical Race Theory: The Key Writings That Formed the Movement (Kimberlé Crenshaw, Neil Gotanda, and Gary Peller, eds., New York: The New Press, 1996), 85, 86. See also Mari J. Matsuda, “Pragmatism Modified and the False Consciousness Problem,” Southern California Law Review 63:6 (1990): 1777 (“Subordination can obscure as well as illuminate self-knowledge”).
152. Crenshaw, “Race, Reform, and Retrenchment,” 1349.
153. Emily Gold and Melissa Bradley, “The Case for Procedural Justice: Fairness as a Crime Prevention Tool,” COPS Community Policing Dispatch 6:9 (September 2013).
154. Tracey L. Meares, “The Good Cop: Knowing the Difference Between Lawful or Effective Policing and Rightful Policing—and Why It Matters,” William & Mary Law Review 54:6 (2013): 1878.
155. Ibid., 1879 (presenting a graph with “Lawfulness” on the x-axis, “Legitimacy” on the y-axis, and “Rightful Policing” in the top right quadrant).
156. The President’s Task Force on 21st Century Policing, “Final Report of
the President’s Task Force on 21st Century Policing,” 1.
157. Ibid., 9, 16.
158. Ibid., 2, 19–29.
159. Ibid., 8.
160. Barack Obama, “Remarks by the President at the 50th Anniversary of the Selma to Montgomery Marches,” March, 7, 2015.
161. Ibid.
7: If You Catch a Case: Act Like You Know
1. Floyd v. City of New York, 959 F. Supp. 2d 540, 560; United States Department of Justice Civil Rights Division, “Investigation of the Baltimore City Police Department” (August 10, 2016).
2. Allegra Kirkland, “How New York Ended up with 1.2 Million Open Arrest Warrants,” Talking Points Memo, August 4, 2015.
3. Andre Perry, “Black Aesthetic, White Supremacy: Steven Perry’s Tweet Needs Cutting More than Black Boys’ Hair,” The Root, June 15, 2016.
4. John Eligon, “Running from Police Is the Norm, Some in Baltimore Say,” New York Times, May 10, 2015.
5. Floyd v. City of New York, 959 F. Supp. 2d 540, 573. See also Ian Ayres, “Racial Profiling & the LAPD: A Study of Racially Disparate Outcomes in the Los Angeles Police Department,” ACLU of Southern California (October 2008).
6. Devenpeck v. Alford, 543 U.S. 146, 155 (2007) (“While it is assuredly good police practice to inform a person of the reason for his arrest at the time he is taken into custody, we have never held that to be constitutionally required”).
7. States with “stop and identify laws” include: Alabama, Arizona, Arkansas, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Louisiana, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Ohio, Rhode Island, Utah, Vermont, and Wisconsin. For more information, see “When Can Police Ask for ID?,” Flex Your Rights, available at www.flexyourrights.org/faqs/when-can-police-ask-for-id.
8. See Frank Rudy Cooper, “Who’s the Man? Masculinities Studies, Terry Stops, and Police Training,” Columbia Journal of Gender and Law 18:3 (2009).
9. Oregon v. Mathiason, 429 U.S. 492 (1977).
10. Marcy Strauss, “Reconstructing Consent,” Journal of Criminal Law and Criminology 92:1 (2001).
11. Town of Newton v. Rumery, 480 U.S. 386, 418 n.23 (1987) (Stevens, J., dissenting) (quoting Boyd v. Adams, 513 F.2d 83, 88–89 (7th Cir. 1975)) (“The danger of concocted charges is particularly great because complaints against the police usually arise in connection with arrests for extremely vague offenses such as disorderly conduct or resisting arrest”).
12. Utah v. Strieff, 136 S.Ct. 2056, 2070 (Sotomayor, J., dissenting).
13. Miranda v. Arizona, 384 U.S. 436 (1966).
14. See, e.g., United States v. Patane, 542 U.S. 630 (2004) (holding that the physical fruits of a Miranda-defective confession are admissible); New York v. Quarles, 467 U.S. 649 (1984) (holding that Miranda-defective confessions are admissible when there are overriding public safety considerations).
15. Michigan v. Mosley, 423 U.S. 96 (1975).
16. See, e.g., Brian Rogers, “In Jail, You Get One Phone Call. But What’s the Number?,” Houston Chronicle, March 11, 2015 (“Truth is, there is no constitutional right to use a phone when being booked into jail; the police allow those calls as a courtesy”). Some states have enacted laws guaranteeing arrestees the right to make telephone calls. See, e.g., Cal. Penal Code § 851.5 (West 2013) (“Immediately upon being booked and, except where physically impossible, no later than three hours after arrest, an arrested person has the right to make at least three completed telephone calls”).
17. Thomas Stinson, “Tyson Defense Had Guard Down During First Week,” Baltimore Sun, February 3, 1992.
18. Iyengar, Radha, “An Analysis of the Performance of Federal Indigent Defense Counsel,” National Bureau of Economic Research (June 2007): 23.
19. Morris B. Hoffman et al., “An Empirical Study of Public Defender Effectiveness: Self-Selection by the ‘Marginally Indigent,’” Ohio State Journal of Criminal Law 3:1 (2005): 241–42.
20. Peter W. Hahn and Susan D. Clayton, “The Effects of Attorney Presentation Style, Attorney Gender, and Juror Gender on Juror Decisions,” Law and Human Behavior 20:5 (1996): 533, 537–38.
21. Jeff Adachi, “Public Defenders Can Be Biased, Too, and It Hurts Their Non-White Clients,” Washington Post, June 7, 2016.
22. See, e.g., John McCurley, “Pretrial Motion to Dismiss: Ending a Criminal Case,” Lawyers.com.
23. Brady v. Maryland, 373 U.S. 83 (1963).
24. United States v. Olsen, 737 F.3d 625 (9th Cir. 2013) (Kozinski, J., dissenting).
25. See, e.g., Christopher N. Osher and Jordan Steffen, “How Police Reliance on Confidential Informants in Colorado Carries Risk,” Denver Post, April 17, 2015.
26. See Kent Roach, “Four Models of the Criminal Process,” Journal of Criminal Law and Criminology 89:2 (1999): 682 (“The criminal trial is concerned not with factual guilt, but with whether the prosecutor can establish legal guilt beyond a reasonable doubt on the basis of legally obtained evidence”).
27. Model Rules of Professional Conduct, Rule 3.3 (American Bar Association, 2016) (“A lawyer shall not knowingly . . . offer evidence that the lawyer knows to be false”).
28. Jennifer Gonnerman, “Before the Law,” New Yorker, October 6, 2014.
29. Ibid.
30. Ibid.
31. “Studies that assess the effects of race [on plea bargaining] find that blacks are less likely to receive a reduced charge compared with whites (Farnworth and Teske, 1995; Johnson, 2003; Kellough and Wortley, 2002; Ulmer and Bradley, 2006). Additionally, one study found that blacks are also less likely to receive the benefits of shorter or reduced sentences as a result of the exercise of prosecutorial discretion during plea bargaining (Johnson, 2003).” Lindsey Devers, “Plea and Charge Bargaining,” United States Department of Justice Bureau of Justice Assistance (January 24, 2011), 3.
32. Michelle Alexander, “Go to Trial: Crash the Criminal Justice System,” New York Times, March 10, 2012.
33. Eric Rasmusen, Manu Raghav, and Mark Ramseyer, “Convictions Versus Conviction Rates: The Prosecutor’s Choice,” American Law and Economics Review 11:1 (2009).
34. Peter J. Coughlan, “In Defense of Unanimous Jury Verdicts: Mistrials, Communication, and Strategic Voting,” The American Political Science Review 94:2 (2000).
35. E. Ann Carson, “Prisoners in 2014,” United States Department of Justice Bureau of Justice Statistics (September 2015), 15 (“An estimated 516,900 black males were in state or federal prison at yearend 2014, accounting for 37% of the male prison population”).
36. Nicole L. Waters, Anne Gallegos, James Green, and Martha Rozsi, “Criminal Appeals in State Courts,” United States Department of Justice Bureau of Justice Statistics (September 2015).
8: Woke: Unlocking the Chokehold
1. Khalil Gibran Muhammad has described how Progressive Era activists created settlement houses that provided services for European immigrants. Progressives emphasized “environmental theories of crime and delinquency” and “discounted crime statistics . . . in favor of humanizing European immigrants.” Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Cambridge, MA: Harvard University Press, 2011), 7.
2. U.S. Bureau of Labor Statistics, “The Employment Situation—October 2016,” U.S. Department of Labor, November 4, 2016, available at www.bls.gov/news.release/pdf/empsit.pdf; Tami Luhby, “Are Blacks Worse Off Under Obama, Like Trump Says?,” CNN Money, March 15, 2016, available at money.cnn.com/2016/03/15/news/economy/blacks-trump-obama.
3. Ibid.
4. Ruth Simon and Tom McGinty, “Loan Rebound Misses Black Businesses,” Wall Street Journal, March 14, 2014.
5. Rakesh Kochhar and Richard Fry, “Wealth Inequality Has Widened Along Racial, Ethnic Lines Since End of Great Recession,” Pew Research Center, December 12, 2014, available at www.pewresearch.org/fact-tank/2014/12/12/racial-wealth-gaps-great-recession.
6. Mychal Denzel Smith, “The Senate’s Bipartisan Cri
minal Justice Reform Bill Only Tackles Half the Problem,” The Nation, October 14, 2015.
7. Nas feat. Lauryn Hill, “If I Ruled the World (Imagine That),” It Was Written (Columbia Records, 1996).
8. Professor Jonathan Simon, among others, has described prisons as “waste management” stations. See Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (New York: Oxford University Press, 2009).
9. “Waste Management Partners with Police to Fight Crime and Watch Neighborhoods,” February 10, 2010, available at www.wm.com/documents/pdfs-for-services-section/press-release-waste-watch-of-orange-county-ca.pdf.
10. Dr. James Austin and Lauren-Brooke Eisen with James Cullen and Jonathan Frank, “How Many Americans Are Unnecessarily Incarcerated?,” Brennan Center for Justice, 2016.
11. Ibid.
12. Ibid.
13. “Common Justice,” Vera Institute of Justice, available at www.vera.org/centers/common-justice.
14. Lynn Langston, Marc Berzofsky, Christopher Krebs, and Hope Smiley-McDonald, “Victimizations Not Reported to the Police, 2006–2010,” United States Department of Justice Bureau of Justice Statistics (August 2012), 1. For a video about restorative justice (narrated by Sered), see “Restorative Justice: Why Do We Need It?,” Brave New Films, September 13, 2016, available at www.youtube.com/watch?v=8N3LihLvfa0.
15. Matthew R. Durose, Alexia D. Cooper, and Howard N. Snyder, “Recidivism of Prisoners Released in 30 States in 2005: Patterns from 2005 to 2010,” United States Department of Justice Bureau of Justice Statistics (April 2014), 1.
16. Allegra M. McLeod, “Prison Abolition and Grounded Justice,” UCLA Law Review 62:5 (2015): 1161.
17. Dana Goldstein, “Too Old to Commit Crime?,” New York Times, March 20, 2015.
18. Human Rights Watch, “Old Behind Bars,” January 27, 2012, available at www.hrw.org/report/2012/01/27/old-behind-bars/aging-prison-population-united-states.
19. James Austin and Lauren-Brooke Eisen with James Cullen and Jonathan Frank, “How Many Americans Are Unnecessarily Incarcerated?,” Brennan Center for Justice, 2016, www.brennancenter.org/sites/default/files/publications/Unnecessarily_Incarcerated_0.pdf.