Recently in Equal Protection Category

The researchers found that white police officers were no more likely to shoot minority citizens than non-white officers were. If anything, black police were more likely to kill black civilians, because police tend to be drawn from the communities they work in. The best predictor of the race of killed civilians, they found, was the rate of violent crime in the place they lived. In areas with high rates of violent crime by African-Americans, police were more likely to shoot dead a black person. In areas in which white people committed more crimes, police were more likely to shoot white people.

Few politicians have been as disappointing, following a promising start, as now-departed New Jersey Governor Chris Christie.  Now we learn that on his way out the door, Gov. Christie signed a particularly bone-headed piece of legislation.  Corinne Ramey reports for the WSJ:

Changes to criminal-justice laws in New Jersey now require an analysis of their impact on racial and ethnic minorities, making the state among only a handful in the nation to do so.

A bill mandating the analyses, which outgoing Republican Gov. Chris Christie signed Monday, requires the state's Office of Legislative Services to prepare so-called racial-impact statements for policy changes that affect pretrial detention, sentencing and parole.

To justify such legislation, the soft-on-crime crowd trotted out its favorite warhorse, the Fallacy of the Irrelevant Denominator.

New Jersey has the largest disparity between white and black incarceration rates in the country, according to the Sentencing Project, a nonprofit that advocates reducing the prison population.

The state's prison population is 61% black, 22% white and 16% Hispanic, data show. The state's general population is 14% black, 69% white and 18% Hispanic, according to census data.

What is the relevance of the general population figures?  Most of the general population, across all racial and ethnic groups, consists of law-abiding people.  Prison is for felons, not law-abiding people.  The relevant first-order comparison would be prison population versus felons.  If the ethnic distribution of prisoners is out of line with the distribution of people committing the kinds of crimes for which prison sentences are regularly imposed, that would at least raise a suspicion that something might be amiss and warrant further investigation.  Comparing prison population with general population, though, indicates absolutely nothing.

Unsurprisingly, the U.S. Supreme Court held today in Buck v. Davis that it was ineffective assistance of counsel for the defense lawyer to call an expert witness in the penalty phase to testify about "statistical factors," one of which could be construed to be a statement that a defendant was more likely to be dangerous in the future because he is black.

I don't read the testimony that way.  The underlying fact that the expert testified to was:  "There is an over-representation of Blacks among the violent offenders."  That is a regrettable but undeniable demographic fact.  Still, most jurors (and many lawyers) do not have the logical sophistication to distinguish between that fact and the forbidden inference, and it should not have been introduced into the trial at all.

Justice Thomas in dissent notes that the Court had to leap over many procedural hurdles in its result-driven quest to grant relief to this one murderer, but he predicts these gymnastics will be narrowly applied only to unusual cases like this one.  I hope he is right, but I have my doubts.  If time permits, I will blog more about this case later.

Memo to the Texas Legislature:  How many problems does your "special issues" sentencing system have to cause before you wake up, dump it, and sentence on the basis of aggravating v. mitigating factors like most states do?  Asking jurors to predict "future dangerousness" is a legal minefield, and Texas has stepped on too many mines already.

Here at C&C we have been strongly critical of the Black Lives Matter movement, and we will continue to be.  That group is not part of the solution, it is a major part of the problem.

Just to be clear, though, we do not deny that there are legitimate complaints of discriminatory law enforcement.  In this video, Senator Tim Scott describes his experiences.

Harvard Law Professor Alan Dershowitz is not someone we agree with often, but his comments on Megyn Kelly's show last night are notable.  The video is here.  The transcript is here and copied, with edits, after the break.

[Editors Note:  Unknown to either of us, Bill and I were posting on the same subject at the same time.  That's okay.  I will leave them both up.  There is overlap, but also some differences in the posts.]

When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.

The North Carolina Supreme Court has sent back to the trial court the cases on that state's ill-conceived, misnamed, and since repealed "Racial Justice Act."  The purpose of that act is to defeat rather than promote justice, and it allows murderers to overturn their sentences based on the kind of statistics-based arguments rejected by the U.S. Supreme Court in McCleskey v. Kemp.  (See my law review article for background on the racial statistics controversy.)

Jacob Gershman has this article in the WSJ.

The state supreme court vacated the decisions in favor of the murderers, but it did so on the narrow ground that the trial judge did not allow the prosecution sufficient time to gather evidence to rebut a large study submitted to support the claim.  That means the case goes on. 

Andrew Wolfson has this article in the Courier-Journal centered on Facebook posts made by Jefferson Circuit Judge Olu Stevens regarding the racial makeup of juries, and the subsequent debate that erupted between him and Commonwealth's Attorney Tom Wine.  The debate begs the question of whether or not it is proper for a judge, who has taken an oath to be impartial, to publicly blast attorneys or opine on legal issues on social media.  Some background to the story:

The fiery dispute between Stephens and Wine arose when the judge dismissed a jury panel in November 2014 because it had no black members - even though the prosecution had nothing to do with that result.

Wine then asked the Kentucky Supreme Court to clarify whether judges have that power when there is no evidence minorities have been removed for discriminatory reasons. Stephens in turn took to his Facebook page to blast Wine as trying to "protect the right to impanel all-white juries" in a series of posts that suggested the prosecutor is racist.

Stevens said that while the panel was drawn at random - and the black juror was struck at random - the defendant was denied a right to a jury representative of a county in which about 21 percent of residents are black.

Here is some of what Judge Stevens had to say on Facebook:

CJLF is not a partisan organization, although it's obvious it more frequently sides with Republicans than Democrats, particularly on matters of judicial selection.  I, as a guest contributor, have not been shy about strongly taking on such Republican stalwarts as Rand Paul, Mike Lee, and occasionally my brilliant friend from years ago  --  and a courageous man in my view  --  Sen. Ted Cruz. I have had very little to say about some prominent Democrats, in particular leading presidential candidate Hillary Clinton.

From Gallup today:

Which would you prefer to see in your local area -- [ROTATED: a larger police presence than currently exists, no change, (or) a smaller police presence than currently exists]?



The report notes:

In general, though, majorities of these major groups profess wanting "no change" in the police presence in their local community. However, blacks are the least likely to say this at 51%, compared with Hispanics at 59% and whites at 74%. Only small percentages of any group say they want a smaller police presence than currently exists.

I suspect that the difference is not race as such but rather the likelihood of living in a high crime area.  If Gallup, or any poll, asks this question again, it would be interesting to record precisely where each respondent lives and then cross-tab that with actual local crime rate.

Edward Blum notes at the WSJ, "Fifty years ago, on Aug. 6, 1965, President Lyndon Johnson signed the Voting Rights Act, legislation he would later identify as the most important of his political career."