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The Civil Rights Division Turns Racist


I was a career Justice Department attorney for many years.  I almost always took pride in the Department's work.  I was proud in particular of its use of federal power to overwhelm and defeat Jim Crow.  States rights stop where intimidation, not to mention murder, begin.

That was then.

Today we hear from Politico  --  not exactly a conservative mouthpiece  --  news that the Civil Rights Division at DOJ has given up the fight for equal justice in favor of giving the go-ahead to black racism.  The first two paragraphs in the Politico story state:

A Justice Department prosecutor defied his superiors by testifying at a U.S. Civil Rights Commission hearing Friday, where he leveled an explosive allegation: top officials in the department gutted a voter intimidation case against a fringe African American militant group because the suspects were black and their alleged victims were white.

The prosecutor, Christopher Coates, also said the downgrading of the case against the New Black Panther Party was evidence of a Justice Department culture which discouraged "race neutral" enforcement of civil rights laws, frowned on prosecuting minority perpetrators and folded under pressure from black and Latino rights groups. After President Barack Obama and Attorney General Eric Holder took office, the culture intensified, Coates told the panel, ultimately leading to his departure as chief of the voting rights section early this year.

Hat tip to my friends at Powerline, which carries the story here. The Politico piece is here.   The Washington Post also carries the story. The New York Times, however, can't find anything to write about.  Imagine that.


The possibility that the DOJ isn't race neutral could have some interesting consequences for its civil actions and criminal prosecutions. Racial discrimination in prosecution decisions is a defense. See generally United States v. Bass. The hurdles are high, but it's a defense nonetheless.

The problem is that there is no legal remedy for the executive's FAILURE to bring a case on account of racial bias, which is what we have here. The courts cannot bring a prosecution on their own, nor can they order the executive to prosecute; that would be a patent violation of the separation of powers. The only real remedy is to expose what the executive is doing -- which is what the Civil Rights Commission is undertaking -- and then let the voters decide for themselves at the next election.

On the other front: A federal criminal defendant in an unrelated case would have a hard road to hoe to make a defense based on the Civil Rights Division's conduct in the present matter. A defendant (presumably a white defendant) would have to show that the particular prosecutors in HIS case went after him because of his race.

I hope Eric Holder's Justice Department has not gone that far, and I have no specific evidence that it has. If it ever does, we will be in tryanny's grasp.

So the repeated studies that show the death penalty is biased against minorities (even when adjusting for all other aspects) get a free pass on this blog, but this one prosecutor, complaining about one case, is trumpeted as evidence of institutional racism.

I respect this blog as a news source and for giving me an alternative point of view, but in this instance the conservative bias is just pathetic.

oh really, bhaal, please point out a study that separates out geographic issues, differences in the criminal/crime etc. One fact--black killers are less likely to be executed in America than white ones.

bhaal --

1. If in any given case, the killer is able to show that he was given the DP because of his race, rather than the facts about his behavior, the DP would be thrown out in a New York minute (with me cheering, if that makes a difference). But that is scarcely a reason to end the DP altogether, which is what I and the great majority of my fellow citizens are fighting.

2. If a particular defendant gets capital punishment for reasons OTHER THAN his race, why should the fact (assuming it to be a fact) that other defendants in unrelated cases have been discriminated against benefit our present defendant?

3. For a career prosecutor (hired during the Clinton years, incidentally) to defy his political superiors to testify in this way is astounding, and takes a lot of guts. Why do you think his superiors wanted him to stonewall the Civil Rights Commission? And what specific evidence do you have that his testimony there was untrue?

4. Why do you think my posting about this case represents "conservative bias?" Let me suggest that it's neither conservative nor biased. It's not conservative because a desire for EQUAL, non-racist justice should not present a conservative/liberal divide. I thought we were all on board with that one. Do liberals have a stake in the Department's conduct in this matter? What would that be?

And it's scarcely bias for this blog (much less guest bloggers, which is what I am) to cover a story that is also getting some ink in the Washington Post and even (briefly) in the LAT. Are they biased too?

5. Just to be clear: I don't check in with TalkLeft or whatever you're reading to decide what is a permissible subject for my entries. DOJ had a clearly prosecutable (indeed videotaped) case of voter intimidation, a criminal offense, and dropped it for no explicable reason. Now we hear from a career attorney that it was because of point-blank racial animus against whites.

I can understand why the Left wants to censor this, but if you're waiting for me to get in line with that censorship, you'll be waiting a long time.

1) and 2) If you aren't going to allow evidence of racial bias a system as a whole, such as the Baldus Study in McCleskey v Kemp, as proof the imposition of the death penalty is based on factors such as race, then how on earth do you expect any defendant to ever prove bias in their individuals case. Do you think prosecutors or juries are going to shout about the fact they sentenced someone to death because he was a minority or because he killed someone who was white? If you exclude evidence of systematic bias then you effectively exclude evidence of racial bias entirely.

Oh and:

"One of you two is gonna hang for this. Since you're the nigger, you're elected." These words were spoken by a Texas police officer to Clarence Brandley, who was charged with the murder of a white high school girl. Brandley was later exonerated in 1990 after ten years on death row.

No-one threw his case out because of racial bias. Sadly, the notion that Texas police officers can be racist doesn't make the news.

3) I have no doubt that his testimony was true or that this choice was wrong. I object to the tone of the post, which framed this one case as if it was evidence of widespread institutional racism in the DoJ. 'The Civil Rights Division turns racist' is a misleading post. You started your post with a eulogy about the death of a noble DoJ that once fought against racism, but has now turned to the dark side. Because of one case. Not only is that dishonest, the conclusion is flawed. You can't use a single data point to prove a theory. I mean come on, are you suggesting the DoJ has never prosecuted any previous cases of voter intimidation featuring a black defendant?

4) Picking out a single incident as conclusive evidence of a conservative talking point while ignoring other incidents of bias shows a conservative lean. I didn't know you were a guest blogger though, so I apologize on that point.

5) I don't read Talk Left. I have no stake in the 'Left'. I don't want to censor this. I merely don't like such a clearly slanted viewpoint, especially when it comes from a blog that glosses over the numerous flaws in the criminal justice system, such as the racism inherent in the death penalty.

There's a difference, bhaal, between the USDOJ and some local yokel in Texas. It's, if course, undeniable that race plays a role sometimes in whether someone gets executed, e.g., James Burmeister, but it's not very probative to equate the USDOJ and some long ago racist cop.

The Baldus study is ancient history. Get something better. Black killers are less likely to get executed than white ones. Deal with that issue.

"If you aren't going to allow evidence of racial bias a system as a whole, such as the Baldus Study in McCleskey v Kemp, as proof the imposition of the death penalty is based on factors such as race...."

Bhaal, when the McCleskey case was in the District Court, the evidence was allowed, there was a full-blown trial with experts on both sides, and the District Court found as a matter of fact that Baldus's study did not prove what he claimed. To the extent it showed anything, the judge found, it showed that neither race of the victim nor race of the defendant was a factor in the charging decision or the sentencing decision.

Were you aware of that? It is somewhat depressing how many people cite Baldus completely unaware of the adjudication that his conclusions are unsupported by the evidence.

The Death Penalty Information Center is certainly not making anyone aware of this important death penalty information.

And the other studies in other states that come to the same conclusion? They're all flawed? The courtroom remarks and the discriminatory jury strikes. The all-white juries in majority black countries. All useless as proof?

I'll stick to reading this blog from now on.

Again, I want to commend the news reporting on here - the stories about the recent California decisions allowing the resumption of executions is top-notch. I just think the bias becomes a little too heavy at times, which puts me off for a while. But I always come back and it's your blog. You can do with it what you want.

"And the other studies in other states that come to the same conclusion?"

In New Jersey, the special master came to the same conclusion as the judge in McCleskey. In Nebraska, Baldus himself came to the same conclusion. In the federal system, three different, independent analyses all found no statistically significant bias after accounting for relevant case differences. In the Maryland study, the bias statistic declined to statistically insignificant once jurisdiction was properly accounted for.

The Philadelphia study has never been submitted for peer review. What does that tell you? The Pierce and Radelet studies purport to adjust for case characteristics but their measure of aggravating circumstances is so crude as to be laughable.

More on this topic is available in this article:


bhaal --

I am having a hard time understanding where, exactly, you're coming from, and what the basis is for your explicit accusation that my entry is "dishonest."

This is a blog about criminal law. It deals with the death penalty for sure, but that is far from its only focus.

My entry discusses testimony by a career attorney at DOJ that a potential criminal case of voter intimidation was squelched because those currently in power no longer seek equal justice across racial lines, but instead have decided to use the law only for the benefit of minorities (who happen to be primarily constituents of the party currently holding executive power -- imagine that).

To my way of thinking, that is without question a story that should be carried on a criminal law blog and elsewhere (and, in fact, it is now, finally, BEING carried elsewhere).

Your apparent objection to my entry is two-fold. First, you upbraid me for blogging about this story while not taking account of what you claim is anti-black racial bias in the administration of the death penalty. Second, you say that I am taking one case to show systemic anti-white bias at DOJ, and that such a broad-brush attack is "pathetic," "bias[ed]," and "misleading" (all your words).

As to your first objection: I have blogged many times about the death penalty and the claims of discrimination you raise. Kent has blogged even more frequently, as noted in his comment that precedes this one. I am aware of no theory of blogging, or any other sort of journalism, that requires me to re-hash an on-going debate about one component of the death penalty controversy as an adjunct to an unrelated and late-breaking story about last week's testimony concerning the operation of the Voting Rights Section of the Civil Rights Division at DOJ.

What theory would that be? Should I be required to go through the opinions in Furman v. Georgia as well, as a mandatory preamble to the voting rights story?

You say you don't want to censor that story, but you certainly seem to want to impose a pre-condition that I concede, or at the minimum discuss, the (hotly disputed) theory that that there has been discriminataion against blacks in an area entirely separate from voting rights. In other words, while disclaiming in haec verba a desire to censor the voting rights story, you want to impose a two-ton requirement that, if it were to be effective, would amount to de facto censorship: The required preamble to every criminal law story would make the story impossible to publish.

That sort of de facto censorship might work with some people. I will not be among them.

As to your second objection, it was not me but the career DOJ attorney who said (under oath) that (quoting the story) "the downgrading of the case against the New Black Panther Party was evidence of a Justice Department culture which discouraged 'race neutral' enforcement of civil rights laws, frowned on prosecuting minority perpetrators and folded under pressure from black and Latino rights groups."

At one point, you say that you "have no doubt that his testimony was true," but then castigate me for using "this one case" for being evidence of the widespread culture the attorney described in testimony that IN YOUR PRECEDING SENTENCE YOU DECLINED TO CONTEST.

More broadly, what your non-censorship censorship requirement reveals is the over-the-top abolitionist resentment about race. The odd and ironic thing is that it's not even about race, not in the end, even though that's what it advertises. Your bottom line is that the death penalty should be abolished, period; race is brought in to try to intimidate and silence retentionists by painting them as Klansmen wannabees.

It is true that blacks are on death row in disproportionate numbers. They are also in prison for non-capital offenses in disproportionate numbers. This is because they commit violent crime in disproportionate numbers. This fact is unfortunate but retentionists did not create it, nor does it even arguably constitute a reason that we should abandon a system that dispenses to the Timmy McVeigh's, John Wayne Gacy's and John Couey's of this world the only justice that remotely fits their savagery.

I, for one, am not about to be bullied off my support for the death penalty by the race-mongering of Al Sharpton and those, like you, who, in a more refined but still snarling way, take it up for him.

The problem I have with this, is that the underlying complaint made by Coates is such utter unmitigated garbage:


The Civil Rights Division didn't "turn racist" when Coates left; his departure, and that of Schlotzman and von Spakofsky, helped to depoliticize DOJ and the Civil Rights Division and changed it from being the dominion of the same movement conservative idealogues who fund this site, to their ordinary role of enforcing the law in a relatively equitable, judicious and evenhanded fashion.

In recent posts, I notice that the fact that CJLF consists of right wing shills for the Scaife Foundation has become ever more transparent.

No one here is a shill for anyone else. Each blogger's posts represents his own opinion, and no outside organization is telling anyone what to write.

BTW, Bill Otis, author of the original post, is a guest blogger and not an employee or officer of CJLF. See the "About C & C Blog" page.

notafanofidealogues --

1. It's so cool that a person whose monicker is "notafanofidealogues" employs, as his sole source, the Huffington Post, which is a strong contender for Most Ideological Blog Out There.

2. As Kent notes, and as I said in the fifth comment on this thread (posted five days ago), I am a guest blogger. I don't "shill" for anyone, although I am proud to have been an attorney for the United States during administrations of both parties, and in over a hundred reported criminal cases. Do you consider that "shilling?"

3. Those who worked at Main Justice for years, as I did, would laugh out loud at your idea that the Civil Rights Division is or ever was the "dominion of movement conservative[s]." Of course if you know differently from your experience at DOJ (which would be..........what?), do tell.

4. To the best of my knowledge, I have never met or had any contact with anyone in the Scaife Foundation, although I would be happy to if the chance arose.

5. Speaking of shilling and donors and all that stuff, could you tell me how much George Soros has forked over to your pals at Huffington?

6. If at some point you feel like addressing the merits, you might start by telling us why DOJ commanded Mr. Coates, a former ACLU person hired by DOJ under the Clinton administration, to stonewall the Civil Rights Commission when it wanted to look into the NBPP case.

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