WWU SOC 363 Gillham Law and Stratification Final Exam

Personal Responsibility & Work Opportunity Act (1996)

"Ended welfare as we know it" by replacing Aid to Families with Dependent Children with a block grant to states called Temporary Assistance to needy families (TANF). TANF imposed a 5 year lifetime limit on welfare assistance as well as a permanent lifetime ban on eligibility for welfare and food stamps for anyone convicted of a felony drug offense.

Ex-offenders & stigma

"It is the state that certifies particular individuals in ways that qualify them for discrimination for discrimination or social exclusion." The "official status" of this negative credential differentiates it from other sources of social stigma, offering legitimacy to its use as a basis for discrimination.

Neal v. Delaware (1882)

- "No colored citizens had ever been summoned as a juror." - Delaware Supreme court, "the great body of black men residing in the State are utterly unqualified [for jury service] by want of intelligence, experience, or moral integrity." - SCOTUS reversed. "Clearly, what offended the U.S. Supreme Court was not the exclusion of blacks from jury service per se, but rather doing so openly and explicitly"

Pre-Furman Research

- African Americans convicted of murdering whites singled out for more severe punishment before Furman. - 1930s - Whites more likely to be convicted of first-degree murder and sentenced to death; only 5% who killed African Americans convicted of first-degree murder and sentenced (Garfinkel North Carolina study) - African Americans who killed whites more likely than any other race to be indicted, charged - Didn't control for the possibility that crimes committed against whites more serious, more likely to deserve death penalty. - Offenders who killed during a felony had a higher probability of receiving the death penalty as did non-white offenders and offenders who killed whites (Ralph study on pre-Furman Texas) - The Supreme Court was correct in its assumption of the potential for racial discrimination in the application of the death penalty in the pre-Furman era

Important provisions of Innocence Protection Act (3)

- Allows a person convicted of a federal crime to obtain DNA testing to support a claim of innocence. Prohibits the destruction of DNA evidence in federal criminal cases while a defendant remains incarcerated. Provides funding to states to help defray costs of post-conviction DNA testing. - Authorizes a grant program to improve the quality of legal representation provided to indigent defendants in state capital cases. - Increases the maximum amount of damage that can be awarded in cases of unjust imprisonment of $100,000 per year in capital cases.

Clinton's War on Ddrugs

- As a result of the success of the Republican Party's "tough on crime" platforms, Democrats decided to join enthusiastically. - He vowed he would never permit any Republican to be tougher on crime than he. - Sign Personal Responsibility and Work Opportunity Act which 'ended welfare as we know it', shifted the focus and funding to punitive measures instead of rehabilitation and public support, created one-strike drug laws for public housing, and 'effectively made the construction of prisons the nation's main housing program for the urban poor'.

Sarat on reforms to capital sentencing

- Believes that all of the reforms proposed and supported by new abolitionists while good, are not going to happen in the way they need to anytime soon. - These problems are all so deeply rooted in the racism that permeates our society, that he believes the only effective solution is to abolish the death penalty.

Offender-Victim Pair

- Black killing white = extra-bad - White killing white = pretty bad - Black killing Black = bad - White killing Black = bad-ish

Mass incarceration parallels to Jim Crow (6)

- Born due to a desire among white elites to exploit the resentments, vulnerabilities, and racial biases of poor and working. - Class whites for political or economic gain. - Legalized discrimination - Political disenfranchisement - Exclusion from juries - Creation and maintenance of racial segregation - Symbolic production of race

Eighth Amendment

- Excessive bail shall not be required - No excessive fines imposed - No cruel and unusual punishments inflicted. But the courts determine what is cruel and unusual.

Redemption Movement

- Federal government no longer made any effort to enforce civil rights legislation, funding for Freedmen's Bureau was slashed, and all troops withdrew. Tens of thousands of AA were arbitrarily arrested and then sold into forced labor to pay off their "debts". - Death rates were very high. - Resulted in Jim Crow.

Pierce and Radelet study

- Focused on California death row from 1990 to 2003, for homicides committed from 1990 to 1999. - In 2005, California had largest death row population: 39% white, 36% African American, 20% Hispanic, 3% Asian, 2% Native American - Offenders who killed whites 3.7 times more likely to be sentenced to death than offenders who killed African Americans; those who killed whites 4.7 times more likely to be sentenced to death than those who killed Hispanics.

Limit DP to only those who commit the most heinous of crimes

- How is level of heinous-ness determined? - Worries that it would still disenfranchise black people bc they aren't valued as victims as much as white people are.

Completely abolish the death penalty

- Impractical - Vacate all death sentences in states where there is evidence of racial disparities in applying the DP - Wouldn't satisfy abolitionists - Would question the legitimacy of the DP system for generating these racial disparities

Mass incarceration differences from Jim Crow (6)

- Jim crow was explicitly race-based, mass incarceration is racially biased, but the bias is hidden. - Laws prohibiting drug use aren't racially biased, but the enforcement of the law is. - Polls in the 1980s showed that most Americans opposed racial discrimination. - More white people affected negatively by mass incarceration than Jim Crow (collateral damage) - Absence of overt racial hostility - Black support for "get tough" policies.

Drug war myths

- Media romanticizes the CJS. - Being involved with the system are not treated fairly like in the TV shows. Many never meet with attorneys police stop them for no reason.

Innocence Protection Act (2004)

- Package of criminal justice reforms President Bush signed into law in; part of the larger Justice for All Act, which had bipartisan support. - Enhanced protection for victims of federal crimes. - Increased federal resources available to state and local governments to combat crimes with DNA technology. - Provided safeguards designed to prevent wrongful convictions, executions.

State of denial facilitated by (4)

- Persistent racial segregation in housing and schools. - Political demagoguery - Racialized media imagery - Ease of changing one's perception of reality

Post-Gregg Research

- Predicted that race wouldn't affect the capital sentencing process in Georgia and other states with similar statutes. - It's unlikely that the death penalty will be applied with greater equity when substantial discretion remains in these post-Furman statutes (Wolfgang and Reidel) - Other commentators predicted that guided discretion would simply shift discretion and thus the potential for discrimination to earlier stages in the capital sentencing process. - Those who murdered whites more likely to be charged with capital murder, sentenced to death than those who murdered African Americans (GAO). About half of studies had race of defendant affecting likelihood of being charged with a capital crime or receiving death penalty. There wasn't systemic evidence of discrimination against black defendants (Baldus, Woodworth). - Change might reflect that prosecutors are striving for equal treatment. Might reflect greater racial diversity among judges, prosecutors and defense attorneys and/or the fact that defendants facing capital charges are provided with more competent defense attorneys than in the past critique of pre-Furman research.

DP Abolishonists

- Provision of competent counsel - Expanding the appeals process - Guaranteed access to DNA testing - Review of prosecutors' decisions to seek the DP

Gregg v. Georgia (1976)

- Response to Furman - Instituted "guided-discretion" statutes - SCOTUS approved - Reinstating the death penalty with these "guided-discretion" statutes constitutional - Assuming guided-discretion statutes would be eliminating problems condemned in Furman.

Post-Furman

- SC ruled on the constitutionality of the new death penalty statutes in 1976. - Held mandatory death penalty statutes enacted by North Carolina and Louisiana unconstitutional because they: 1. Provided no opportunity for consideration for mitigating circumstances. 2. The jury's power to determine the degree of crime opened the door to the type of arbitrary and wanton jury discretion condemned in Furman. - Central problem of mandatory statutes was their treatment of all defendants as members of a faceless, undifferentiated mass to be subjected to the blind infliction of the death penalty.

Furman v. Georgia (1972)

- SCOTUS ruled death penalty unconstitutional because it was administered under statutes at the time in a 5-4 decision. - Death penalty was ruled unconstitutional NOT for violating cruel and unusual punishment; INSTEAD focused on the procedures by which convicted defendants selected for the death penalty.

Furman v. Georgia Ruling

- Since statutes offered no guidance to juries deciding whether to sentence convicted murderers/rapists to death, there was a substantial risk the death penalty would be imposed in an arbitrary and discriminatory manner. - 3/5 justices majority mentioned racial discrimination in the administration of the death penalty. - Ruling led to several people being taken off death row and changed the process that brought people to death row. - Death penalty statutes invalidated for 39 states. Most states adopted new statutes with narrow discretion.

Race and Execution Rates

- Those who murder whites, especially African Americans, executed at disproportionately higher rates. -AAs make up a large proportion of offenders sentenced to death and executed, both before and after Gregg decisions. - 1977 to 2009: 1/2 of murder victims were AA AND 14.5% of executions were of AAs. - AAs may be executed more than whites because they're more likely to commit homicide. An appropriate comparison is the percentage of death-eligible homicides involving AA and whites that result in a death sentence. - 1930 to 1967: Risk of execution greater for whites than African Americans, except for in the South. This difference might be due to legal factors.

Operation pipeline

- Trained state/local police to use consent searches and pretextual traffic stops large scale (examples: lengthen stops/ use of dogs to get cause) - Volume approach

Racial Justice Act (1994)

- U.S. House of Representatives added the this to the Omnibus Crime Bill. Originally barely passed; eventually eliminated from the bill. - Would have allowed condemned defendants to challenge their death sentences by showing a pattern of racial discrimination in the capital sentencing process in their jurisdictions. - The defendant would not have to show that criminal justice officials acted with discriminatory purpose in their case, instead defendant could use statistical evidence indicating that a disproportionate number of those sentenced to death in the jurisdiction were AA or had killed whites. - State would then be required to prove its death penalty decisions were racially neutral. - Kentucky passed this in 1998 and North Carolina in 2009. Both permit the defense to introduce statistics of racial bias in capital sentencing process. - Burden of proof put on the defense; state can use its own data as well.

Bacon's Rebellion

- United people from different ethnic backgrounds and pressured the plantation class to change practices. - Condemned the rich for their oppression of the poor. - Inspired an alliance of white and black bond laborers and slaves who demanded an end to their servitude.

Racial caste and Undercaste

- WEB Du Bois) - Former slaves had a "brief moment in the sun" before being returned to a status akin to slavery (convict labor camps). - If truly a class-based society, emancipation proclamation should have equalized Blacks and Whites in the US. Instead, Black people were put back into a subordinate racial caste (Jim Crow). - Similar political dynamics post-Jim Crow may have produced another caste system today, mass incarceration and felons.

Vagrancy Laws

A black code to establish another system of forced labor.

DOJ death penalty protocol

A defense attorney needs the Attorney General's written authorization of seeking death penalty.

Pluralist ignorance

A situation in which a majority of group members privately reject a norm, but incorrectly assume that most others accept it, and therefore go along with it.

Drug use by race

AA make up 80-90% of all drug offenders in prisons. Majority of drug users/deals = white. Weed use = for whites and AA. White students use cocaine x7 more than AA

Thirteenth Amendment

Abolished slavery and involuntary servitude, except as punishment for a crime

Comprehensive Drug Abuse Prevention and Control Act (1970)

Allows police to retain asset forfeitures. Incentivized raids. Mandatory minimums. Most often used for drug offenders and nonviolent crimes. Used by prosecutors to force people into guilty pleas, make people the snitch which leads to false testimony. Often extremely long sentence for low level offense.

Kenneth Rouse

An example against RJA in North Carolina; African American tried by all-white jury for murder of 63-year-old white woman; used proof from lawyer interviewing jurors, one who used racial language to describe African Americans, said black men rape white women.

Reagan's War on Drugs

Announced in 1982, before crack became an issue in the media or a crisis in poor black neighborhoods. There was a massive redirection in the agenda of federal agencies, from white collar crime to street crime. Less than 2% of the American public viewed drugs as the most important issue facing the nation. Funding for agencies responsible for drug treatment, prevention, and education was dramatically reduced. There was a media offensive to justify the WOD.

Martinsville Seven Cases

Black men were convicted and executed for rape of a white woman (1949) in Virginia. Demonstrated the power of the southern legal system to enforce codes of racial behavior. Largest mass execution for rape reported in US.

Pre-conviction fees

Book-in fees levied at the time of arrest. Jail per diems assessed to cover the cost of pretrial detention. Public defender application fees when someone applies for court-appointed counsel. Bail investigation fee imposed when court determines the likelihood of the accused appearing at trial.

Reconstruction Era

Brief but extraordinary period of black advancement. Included legislative achievements such as... - the 13th Amendment abolishing slavery (almost) - Civil Rights Act of 1866 bestowing full citizenship on AA - 14th Amendment prohibiting states from denying equal protection - 15th Amendment protecting voting rights from being denied on race - KKK Acts which declared interference with voting a federal offense and violent infringement of civil rights a crime. Public education system emerged in the sSouth which benefitted both blacks and poor whites. Literacy rates climbed, educated blacks began to enter legislative office and open business.

Anti-Drug Abuse Act (1988)

Called for strict lease enforcement and eviction of public housing tenants who engage in criminal activity. Granted public housing agencies the authority to use leases to evict any tenant, household member, or guest engaged in any criminal activity on or near public housing premises.

Prosecutorial discretion

Can dismiss cases regardless of evidence. Can file extra charges that cannot be proven.

Collateral consequences

Consequences experienced by felons which happen outside of the CLS (e.g., checking the box, housing, difficulty finding work, spatial mismatch, debtor's prison, etc.)

Disparate Treatment and Victim Race

Crimes involving African American offenders and white victims are punished more harshly. They pose the greatest threat to the system of racially stratified state authority. Crimes involving African American victims aren't taken seriously. Most research fails to explain why those who victimize whites are treated more harshly than those who victimize African Americans.

Capital punishment

Death penalty

McCleskey as Exception to DP and Racial Discrimination

Decisions on the death penalty typically don't focus on the question of racial discrimination in the application of the death penalty; McCleskey decision is the exception. - The death penalty CAN'T be imposed on a defendant convicted of raping either an adult or child. - The death penalty CAN be imposed on an offender convicted of felony murder if the offender played a major role in the crime.

Reagan racially coded rhetoric

Deliberately and carefully removed race from all public discourse and focused instead on race-neutral terms with clearly racialized meanings relating to welfare and crime. Focused a lot on 'welfare queens' who were clearly supposed to represent 'lazy, greedy, black ghetto mothers' living off of federal assistance. Also condemned 'criminal predators'

Segregation Laws

Deliberately tried to push blacks and whites apart.

Reagan

Difficult to call him a racist as nothing was overt, but clear enough to win him ~22% of the Democratic party's votes.

Fourteenth Amendment

Equal protection under the law

SCOTUS and 8th Amendment (2002 Ruling)

Execution of someone who is mentally handicapped is cruel and unusual punishment.

Jury pool

First selected from among the community using a reasonably random method. Jury lists are compiled from voter registrations and driver license/state ID renewals

Civil Rights Act (1964)

Formally dismantled the Jim Crow system of discrimination in public accommodations, employment, voting, education, and federally financed activities.

Sentencing crack vs. powder cocaine

Harsh crack sentencing was justified by SCOTUS because the government believed crack was more dangerous.

Political disenfranchisement

Having the right to vote stripped from an individual, poll taxes, literacy tests, grandfather clauses, and felon disenfranchisement laws.

Race-of-Victim Effect

If victim is white, there is a greater chance of conviction.

DP Public Support

In 2009, 65% of Americans reported support for DP for murder convictions. Public not necessarily aware of the potential for abuse. Public support of DP plummets when given other options. Point to a desire for genuinely harsh/meaningful punishment, not necessarily support of DP. Racially, white people support DP more than African Americans AND generally find it to be more fairly applied. Prejudice and DP support linked. Public sentiment "may be unacceptable indicator of contemporary standards of appropriate punishment "view of the people" come from those with the most hatred towards AA - community characteristics influence support for DP, relative social status & execution of whites

SWAT teams

In 80s developed in all major cities. Escalation of quasi-military force by police.

Check the box and ban the box

Is this just saying we should get rid of the box on housing, employment etc? Possibly related to checking the box of your race on the census, ballots, and other legal documents?

Voting Rights Act (1965)

It rendered illegal numerous discriminatory barriers to effective political participation by AA and mandated federal review of all new voting regulations so that it would be possible to determine whether their use would perpetuate voting discrimination.

Brown v. Board of Education (1954)

It signaled the end of "home rule" in the South with respect to racial affairs. Threatened not only to abolish segregation in public schools, but also, by implication, the entire system of legalized discrimination in the South

3-Strikes Laws

Mandated life sentences for some three-time offenders.

Black Codes

Most white people believed African Americans lacked the proper motivation to work, prompting the provisional Southern legislatures to adopt the notorious black code. The main purpose of the codes was to control the freedmen, and the question of how to handle convicted black lawbreakers was very much at the center of control issues. The purpose of black codes in general

Plea deals

Move drug crimes to federal system. No guidebook/recommendations.

Pedestrian stops

NYPD stats reveal that the vast majority of pedestrian stops are conducted on racial minorities, over half of which are African American. AAs were stopped 6 times more frequently than Whites, and stops of AAs were less likely to result in arrests than stops of Whites. Stop-and-frisks are justified on the grounds that these tactics are necessary to keep weapons off the streets, but less than 1% of stops result in guns being found.

Felon and disenfranchisement

Once your a felon, in many states, you can no longer vote or be on a jury. Felons are often told they cannot vote even when they can and some must pay fines before they regain the right to vote.

States of denial

People know about the institutional discrimination, yet deny the occurrence of oppressive acts. People know and don't know that disparities based on race exist. They see black Americans being arrested more often. Blamed is focused onto them instead of the system. Most people don't know how racial oppression works.

Result of Bacon's Rebellion

Plantation elite abandoned indentured servants to maintain control. Then focused on importing black slaves directly from Africa, because they're more foreign, cannot speak English, and less likely to align with poor whites. Racial bribe gave special privileges to poor whites to further distance them from black slaves.

Nixon law & order campaign

Played off of the conservative law and order rhetoric and specifically appealed to racist whites to gain political power. Used the terms explicitly in many campaign speeches and ads. Declared drugs to be public enemy #1.

Seattle study & open-air markets

Police using untrue stereotypes to guide decisions on drug discretion. Most drug markets were in residents. Police only focused on outdoors, in racially mixed areas. Heroin was most common drug overdose, police focused on crack.

Post-conviction fees

Pre-sentencing report fees, Public defender recoupment fees, fees levied on convicted person placed in residential or work-release program. Can includ parole or probation service fees.

Cruel and Unusual punishment

Prohibited by the Eighth Amendment. Includes torture, deliberately degrading punishment, or punishment that is too severe for the crime committed.

Batson v. Kentucky (1986)

Prohibits prosecutors from discrimination on race of jurors, no all-white juries against AA.

Fifteenth Amendment

Prohibits the federal and state governments from denying a citizen the right to vote based on that citizen's "race, color, or previous condition of servitude"

SCOTUS and 8th Amendment

Punishments cruel when involving torture of lingering death, but punishment of death itself is not cruel. According to the good ol' Constituition, the death penalty not considered cruel and unusual punishment.

Strike for cause

Refers to removal of a potential jurist from the jury pool for a clear conflict of interest or other issue that would make the juror appear to be incapable of fairly and impartially deciding the case.

The "level-up" solution

Requiring courts to purposely give more people the DP for murdering black people. Either convict people who kill black people at the same rate as those who kill white people or relinquish the death penalty.

Purkett v. Elem (1995)

Ruled any race-neutral reason is enough to strike a juror (ex: hair length)

SCOTUS and Furman

Ruled didn't rule death penalty unconstitutional for violating ban on cruel and unusual punishment; instead focused on the procedures by which convicted defendants selected for death penalty.

McClesky v. Kemp (1987)

Ruled racial bias in sentencing could not be challenged under 14th amendment

Swain v. Alabama (1965)

SCOTUS ruled that an equal-protection claim would arise only if a defendant could prove that a prosecutor struck AA jurors in every case, regardless of the crime involved or regardless of the races of the defendant or the victim.

Terry v. Ohio (1968)

SCOTUS ruled, if police observe unusual behavior by someone who looks dangerous they can search/ stop them. "Stop and frisk" "Reasonable articulable suspicion"

Fourth Amendment

SCOTUS took away rights of unreasonable searches/seizures. Approving mandatory drug testings. Upholding searching backpacks. Much easier for police to seize, made anyone a target arrests for drug possession vs. for drug sale

Symbolic production of race

Slavery defined what it meant to be black. Jim Crow defined what it meant to be black. Today, mass incarceration defines black people.

Jim Crow

State and local laws that enforced racial segregation in Southern states.

Guided-discretion

Statues that required the division of trial in which jury decided guilt/innocence and then decided whether to impose death penalty

Peremptory strike

Strikes of potential jurors w/out cause.

Atkins v. Virginia (2002)

The Court held that executions of mentally disabled criminals are "cruel and unusual punishments" prohibited by the Eighth Amendment.

McKleskey v. Kemp (1987)

The Court said the "racially disproportionate impact" in the Georgia death penalty indicated by a comprehensive scientific study was not enough to overturn the guilty verdict without showing a "racially discriminatory purpose"

Rucker v. Davis (2002) & SCOTUS

The Ninth Circuit Court of Appeals struck down the "no-fault" clause, on the grounds that the eviction of innocent tenants--who were not accused or even aware of the alleged criminal activity--was inconsistent with the legislative scheme. Supreme Court reversed in 2002, ruled that under federal law, public housing tenants can be evicted regardless of whether they had knowledge of or participated in alleged criminal activity.

Marshall Hypothesis

The average citizen with full knowledge of DP would "find it shocking to his conscience and sense of justice."

Racial bribe

The first use of this came from the planter class during the time of Bacon's Rebellion. They extended special privileges to poor whites in an effort to drive a wedge between them and black slaves.

Anti-Drug Abuse Act (1986)

The legislation included mandatory minimum sentences for the distribution of cocaine, including far more severe punishment for distribution of crack--associated with blacks--than powder cocaine, associated with whites. Authorized public housing authorities to evict any tenant who allows any form of drug related criminal activity to occur on or near public housing. Eliminated many federal benefits, including student loans, for anyone convicted of a drug offense. Expanded the death penalty for serious drug-related offenses and imposed mandatory minimums for drug offenses.

Civic death

The restrictions on participants that exile individuals from any community

Baldus et al. study (p.366ff.)

There wasn't systematic evidence of discrimination against black defendants in Gregg.

SCOTUS and Kentucky (2008 Ruling)

This state's three-drug protocol for administering lethal injection didn't amount to cruel and unusual punishment.

Southern strategy

Used in American politics by Republican Party electoral to increase political support among white voters in the South by appealing to racism against African Americans.

Redemption Movement

White (very violent) South response to Reconstruction Era, spurred by KKK terrorist campaign.

Reinstate mandatory DP for certain crimes

Would require SCOTUS to retract their invalidation of mandatory DP.