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Freedom Rider: Supreme Injustices
by Bar editor and senior
columnist Margaret Kimberley
“The worst case High Court scenario has come to full fruition.”
George W. Bush is president because of the United States
Supreme Court. Were it not for the decision to stop counting votes in Bush v.
Gore, Al Gore would be president of the United States instead. The right wing
presidential victory was the culmination of many years of effort to take over
the federal judiciary. Now Bush has two Supreme Court justices confirmed on his
watch, and the damage to the justice system in this country is immense.
In the past month, the Roberts court has lived up to
predictions that the worst case
scenario has come to full fruition. In Ledbetter v. Goodyear, the court
essentially advised workers to file discrimination lawsuits as soon as they
begin a new job. Discrimination complaints under Title VII of the 1964 Civil
Rights Act must now be made within 180 days of the discriminatory pay practice
taking place. If the victim smells a rat after 180 days, there is no legal
remedy and employers have no fear of legal retribution.
Ledbetter was just the beginning of hell month for the
American justice system. In the Uttecht v. Brown decision, the Supreme Court
ruled that potential jurors who express any reservations about the death
be excluded from death penalty eligible cases. In his dissent, Justice John
Paul Stevens said, “Millions of Americans oppose the death penalty. A
cross section of virtually every community in the country includes citizens who
firmly believe the death penalty is unjust but who nevertheless are qualified
to serve as jurors in capital cases.”
“The loss of popular support for the death penalty matters
little if only racist, conviction happy jurors sit in judgment.”
Pro-death penalty jurors are more likely to convict. That
means mostly black and Latino defendants have the deck stacked against them
from the beginning with prejudiced, partial and almost always white jurors.
These jurors are predisposed to see people of color behind bars and they are no
more generous when the matter is life or death. As the use of DNA evidence has
proven the innocence of hundreds of wrongly convicted persons, the death
penalty has lost some measure of its popular support. That loss of support
matters little if only racist, conviction happy jurors sit in judgment.
The Supremes weren’t finished stacking the cards against
defendants. Keith Bowles appealed his murder conviction in an Ohio court, but
because of incorrect instructions from a judge, he did so three days too late.
“Too bad,” said five of nine justices. They ruled that the court’s 40-year old
doctrine of “unique circumstances” was wrong to begin with, and Bowles and anyone
else like him will not get his day in court.
It is obvious that the current Supreme Court is quite simply
not the place to get justice. Good cases that can undo great wrongs should not
be heard there unless or until there is a Democratic president who can change
the makeup of the court.
It should be good news that the court agreed to hear the
case of Kimbrough v. United States, which would determine whether sentencing
disparities between crack and powdered cocaine are constitutional. Current
federal law mandates that the sentences for possession of crack cocaine and
powdered cocaine are treated very differently. Possession of five grams of crack,
one-fifth of an ounce, carries a mandatory five year prison sentence.
Possession of five hundred grams of powdered cocaine, 1.1 pounds, carries the
same five year sentence. The punishment ration is 100 to 1 and black defendants
are the losers. Eighty-percent of those sentenced for crack
possession are black.
It is hard to believe that the same justices who decided
that wage discrimination is not a problem, will change laws that automatically
result in more black faces behind bars. This is not a good time for Kimbrough
to be heard in the Supreme Court.
cocaine punishment ration is 100 to 1 and black defendants are the losers.”
The hope for justice rests with the Democratic party, a sure
sign of desperate whistling past the graveyard.
It must never be forgotten that many of the sentencing
disparities and draconian drug laws that have now decimated the black community
originated with the Clinton administration. Yet the Democrats at their most
craven, compromised and triangulated are better than Republicans. Judicial
appointments are one of the clearest examples of the Democratic lesser evil
being preferable to the Republican evil that scores an eleven on a scale of one
to ten. There is no hope of any semblance of justice unless a Democratic
president is making judicial appointments.
If the next resident of 1600 Pennsylvania Avenue has the
letter R behind his name, racism and the most extreme forms of punishment that
go along with it will continue to rule on the bench. The traditional depiction
of justice with a blindfold will have to be exchanged for one with her eyes
wide open and her thumbs on the scale.
Freedom Rider column appears weekly in BAR. Ms. Kimberley lives in New York
City, and can be reached via e-Mail at
Margaret.Kimberley(at)BlackAgandaReport.Com. Ms. Kimberley’ maintains an
edifying and frequently updated blog at freedomrider.blogspot.com. More
of her work is also available at her Black Agenda Report archive
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