The U.S. Supreme Court on Tuesday vacated an appeals court ruling that supported a lengthy licensing process for hair-braiders in Missouri and ordered a judge in St. Louis to dismiss the case. The Supreme Court voided the 8th Circuit Court of Appeals opinion that upheld the previous cosmetology license requirements, because a new law, which is discussed in the background section, had already addressed it.
The Supreme Court didn't write a separate opinion, it simply reversed the 8th Circuit opinion. Therefore, the question of whether Missouri and other states within the 8th Circuit can require a cosmetology licensing for African hair braiders remains unanswered. However, the lawsuit which called the law into question in the first place is most likely the only reason the law was changed.
This case demonstrates why it is so important to understand and be able to use the law for your benefit. As we have said before, just because a law exists, doesn't mean it legitimate. You have a right and an obligation to question unfair and questionable laws!
Cases such as this is one of the reason Court.rchp.com exist; so people, especially those who have traditionally been oppressed can be empowered. Discover the hidden secrets of our legal and justice system with the information contained within Court.rchp.com.
African hair braiders sue over Missouri law
Ndioba Niang and Tameka Stigers are professional African-style hair braiders in Missouri, but are not licensed as cosmetologists or barbers. The Missouri Board of Cosmetology and Barber Examiners required hair braiders to be licensed as cosmetologists or barbers even though African-style hair braiding is not included in the cosmetology or barbering school curriculum, and the licensing tests barely test on subjects related to the practice.
In order to obtain a Missouri cosmetology license, one must pass a background check, undergo substantial training, and pass an exam. Before sitting for the exam, an individual must have: (1) graduated from a licensed cosmetology school with at least 1,500 hours of training; or (2) completed an apprenticeship of at least 3,000 hours; or (3) completed similar training in another state. Alternatively, obtaining a barbering license requires at least 1,000 hours of training at a licensed barber school or completion of an apprenticeship of at least 2,000 hours. Completing the necessary requirements for a license would have forced Ms. Niang and Ms. Stigers to incur significant costs for irrelevant training.
Four years ago, Ms. Niang and Ms. Stigers filed the federal lawsuit; they sued to vindicate their constitutional right to earn a living free of unreasonable government interference, and after losing in lower courts asked the Supreme Court to take their case. The original lawsuit, filed in 2014, complained that African-style hair-braiders were required to obtain a cosmetology license, which can cost thousands of dollars but doesn’t include any hair-braiding training.
When the lower courts considered the braiders’ challenge, they essentially ignored the evidence provided by the braiders that showed the licensing requirements were overly burdensome and did not sufficiently relate to the government’s asserted interests in public health and safety. In so doing, the lower courts applied a version of the rational basis test that is no more than a rubber-stamp of approval of government regulation. But that is not the proper application of the rational basis test.
The lawsuit was filed on behalf of Tameka Stigers, of Locs of Glory in St. Louis, and Ndioba “Joba” Niang, who runs Joba Hair Braiding in Florissant. Both have performed the hourslong braiding process for years without licenses and say they fear prosecution.
Joba Hair Braiding owner Ndioba Niang, a native of Senegal who later lived in France, said she completed 1,000 of the required 3,000 hours of cosmetology training at a cost of thousands of dollars before dropping out.
The Institute for Justice, which has filed suits across the country against regulation of various occupations, said the appeals court decision in the Missouri case was in conflict with other federal courts and the Supreme Court. Both the group and the Missouri attorney general asked the court to dismiss the case because of the change in the law, they said.
In May, the Missouri legislature passed a law easing requirements on hair-braiding that made the four-year lawsuit moot. Braiders are now exempted from the cosmetology license and a new specialty braiding license only requires that braiders pay a fee of $20, watch a four- to six-hour instructional video and submit to board inspections. Attendance at a licensed cosmetology school in Missouri can cost more than $16,000.
Fourteenth Amendment Jurisprudence
The Fourteenth Amendment states that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law.” Passed during Reconstruction, these provisions held the promise that freedman would finally be granted the same rights and protections as their white brethren. Yet less than five years after this amendment was enacted, the Supreme Court eviscerated the Privileges or Immunities Clause in what became known as the Slaughter-House Cases (1873).
There the Court held that the clause—which was supposed to protect substantive rights against state infringement—only guaranteed a limited set of federal rights, such as the right to access seaports, to use navigable waters, and to demand protection on the high seas (not exactly the key motivations for the Civil War). The ruling not only delayed the protection of African Americans’ civil rights, it left the Court’s Fourteenth Amendment jurisprudence hopelessly confused and contradictory.
Slaughter-House eventually led to the development of modern “substantive” due process doctrine as a makeshift bandage over the hole in the Fourteenth Amendment left by the unprotected privileges and immunities. While allowing the Court to protect some rights, the “incorporation” of certain rights through the Due Process Clause relegated other, often “economic” rights to second-class status. Instead of judges’ taking a hard look at the actual reasons a law was passed and asking whether the government has overstepped its constitutional bounds, infringements of the right to earn a living or the freedom of contract barely receive a passing glance. They are upheld unless nobody—not even the judge hearing the case!—could possibly imagine a legitimate rationale for the law. Suffice it to say, hardly any laws are struck down under this so-called rational-basis test.
What It Has to Do with Hair-Braiding
Enter Ndioba Niang and Tameka Stigers, both of whom are traditional African-style hair braiders attempting to support themselves by offering their services to willing customers. The Missouri Board of Cosmetology and Barber Examiners, however, demands that they first pay thousands of dollars to receive completely irrelevant training that has virtually nothing to do with hair-braiding. Applying the usual government-can-do-whatever-it-wants-regarding-economic-regulations level of judicial scrutiny, both the federal district court and the U.S. Court of Appeals for the Eighth Circuit upheld the licensing scheme.
You Shouldn’t Need a License to Braid Hair
This approach is wrong: ethically, historically, and legally. There is a long and well-documented history recognizing the right to earn an honest living as being at the center of the Anglo-American legal tradition and indispensable to the maintenance of a free and open society. Industry insiders often lobby for licensing laws and regulations—and then populate the boards or agencies tasked with enforcing the new rules as a means of limiting their competition. By contrast, those harmed are often politically powerless groups with limited means to fight back. But as long as the government says the magic words of “safety,” “health,” or “consumer protection” in asserting its restrictions, courts are content to turn a blind eye.
Because the right to earn a living is one of the basic rights that our Constitution was formed to protect, Cato has filed an amicus brief supporting the hair-braiders’ petition to the Supreme Court. We ask that the Court take Niang v. Tomblinson and establish that courts must meaningfully examine government incursions against this essential liberty, regardless where in the Fourteenth Amendment it finds the relevant right.
The background section was reprinted with permission under license from Cato at Liberty, with additional edits from other sources.
A Texas jury found a white former police officer who shot and killed Jordan Edwards, an unarmed black teenager last year guilty of murder.
Roy Oliver fired three rifle rounds into a car full of teenagers, which included Edward's sixteen year old brother who was driving and another brother, as they were leaving a party in the Dallas suburb of Balch Springs in April 2017. Fifteen-year-old Jordan Edwards, who was unarmed and sitting in the passenger seat, was struck and killed. Edwards was a first-year student at Mesquite High School where he played football.
Edwards' brother was held in police custody overnight for the purpose of questioning him as a witness. Police originally claimed there was alcohol present, during the trial, the jury learned there was no alcohol present at the party, despite what police had initially said.
"It's been a hard year … I'm just really happy," Edwards's father, Odell, told reporters at the court after the verdict on Tuesday.
At the time of the shooting, Oliver claimed the vehicle was trying to run over his partner, but several witness accounts and body-cam footage showed the car was moving away from the officer. A vigil was held at Edwards's school on the evening of May 1, 2017.A lawyer for Edwards' family demanded the arrest of Oliver.
Oliver was placed on administrative leave following the shooting and fired from the Balch Springs police force on May 2, 2017 after police admitted the video of the shooting contradicted Oliver's initial statement.
Police originally stated there was an "unknown altercation with a vehicle backing down the street towards the officers in an aggressive manner". After reviewing body cam footage, Police Chief Jonathan Haber later admitted that the vehicle was not moving toward the officers, but rather away from them.
Local reporters, who were present in the courtroom on Tuesday as the verdict was read, reported that there were hugs, claps and cheers from the family of Edwards.
Oliver faces between five and 99 years in prison for the murder. His sentencing hearing began immediately after the trial. The former police officer was acquitted of manslaughter and aggravated assault.
Daryl Washington, Edwards's lawyer, said the verdict is not just about justice for the young teenager's family but for the families of all unarmed black people killed by police.
"This case is not just about Jordan," Washington told reporters, adding that "it's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every unarmed African American who has been killed and who has not got justice".
The Guardian identified more than 1,090 police killings the previous year.
Nearly a quarter of those killed by police in 2016 were African Americans, although the group accounted for roughly 12 percent of the total US population.
According to watchdog group The Sentencing Project, African American men are six times more likely to be arrested than white men.
These disparities, particularly the killing of African Americans by police, has prompted the rise of the Black Lives Matter movement, a popular civil rights movement aimed at ending police violence and dismantling structural racism.
There are two ways to enter the United States, legally or illegally. Entering the country illegally is a crime. If I commit an illegal act, no matter how well intentioned my actions are, I will be subject to arrest. If I am arrested with small children, I would have no reasonable expectation of not being separated from my my children.
Yes, many laws are unfair. Black people in the U.S. have been subject to walking and driving while black, and other while black actions have been criminalized including most recently, barbecuing and StarBucking while black. It is almost universally recognized that when you are arrested, even if you're arrested unfairly, your children will be separated from you while under arrest.
The worst example of forced child separation occurs within our criminal justice system. Just as the forced removal of Indian children became illegal in the late '70s, the United States began an accelerated process of mass incarceration that quintupled the number of U.S. prisoners.
Many people spend weeks, months and even years locked up while they await trial, half a million of the 2.3 million people behind bars are simply there because they are too poor to pay bail (even though we know that money bail only marginally impacts court attendance). Many of these mostly nonviolent people end up losing their jobs, homes or custody of their children before they’ve even had a chance to plead their case in court.
By Jessica Pryce, Florida State University
During the last few weeks, hundreds of families have been separated, following the Trump administration’s “zero tolerance” policy towards illegal immigrants. Even though the separations have reportedly stopped, it is not clear when the families will be unified. There are also reports of children being possibly put in foster homes and at least one teenager missing, after walking out of a shelter.
As a scholar who is actively engaged in child protection research and who examines the unnecessary removals of children from their parents, I am all too aware that the repercussions of such policies often take a lifetime to undo.
Another period of state-sanctioned separations was in the 1800s, after President Andrew Jackson authorized the Indian Removal Act. Native Americans, mostly youth, were forcibly taken out of their homes and communities and asked to walk for miles to a specially designated “Indian territory.” Thousands died on that journey. It has since been named the “Trail of Tears.”
The government, nonetheless went ahead with its policies and mandated that Native American children be educated apart from their families in boarding schools. This was a method of creating a distance between children and their Native American parents so that they would slowly let go of their native values – what scholars today describe as forced assimilation.
This practice went on until the passing of the Indian Child Welfare Act of 1978 when Native American parents were given the legal right to refuse boarding school education.
The internment of Japanese-Americans was also a time of enactment of exclusionary policies by the American government. President Roosevelt ordered that Japanese, many of them United States citizens, be forcibly removed and held in camps. Children, even infants, were placed in these camps with their parents, and sometimes without.
It is “common sense,” adds DeGruy, who has spent many years researching the multigenerational trauma, that hundreds of people who endured slavery would continue to pass on behaviors, such as anger, violence and shame, down to contemporary generations.
Scholars have also researched the impact of American Indian boarding schools. Their findings included reports of abuse in boarding school and how that manifested in their later years. As children, they were found to have high levels of depression. Research has also linked the adverse childhood experience of boarding school with difficulty in managing stress as adults.
Within the foster care system, scholars have long researched the harm in multiple placements, meaning moving children from one foster care placement to another. Children who experience such unstable placement experience, after being separated from their families, suffer from profound distress and a loss of belonging.
The trauma of separation leaves deep physical and psychological impact that carries into adulthood. This essentially means the healthy development of a child is disrupted in many ways.
These past comparisons bring us to what is occurring today. President Trump’s executive order has stopped any additional separations, but it does not undo the damage that has already been set in motion.
Court.rchp.com exist to help people gain legal information so they can help themselves. After losing our jobs and having several legal actions filed against us, my wife and I performed legal research and won the majority of our cases. Unfortunately, we didn't observe anyone else win even though the court room was filled with people. We understand the fear and uncertainty that exist when you get that court summons and don't know what to do. However, turn that fear into action and that uncertainty into knowledge. Begin learning what you must do in order to increase your chances of winning.
Every year, millions try to navigate US courts without a lawyer
Judge Richard A. Posner, a legendary judicial figure, retired abruptly last month to make a point: People without lawyers are mistreated in the American legal system.
In one of his final opinions as a judge on the United States Court of Appeals for the Seventh Circuit, he expressed frustration at the dismissal of one self-represented litigant’s lawsuit, writing that the prisoner, Michael Davis, “needs help – needs it bad – needs a lawyer desperately.”
Unfortunately, Davis’s circumstances are far from unique. Many lower-income people have no lawyer to help them navigate the legal system, either in civil or criminal cases.
Eighty percent of state criminal defendants cannot afford to pay for a lawyer, and only those who are actually incarcerated are constitutionally entitled to appointed counsel. Many people facing misdemeanor charges can, if convicted, be subjected to significant fines and fees, or face the loss of benefits (including housing) or deportation. Yet, they have no right to an attorney, and those who cannot afford a lawyer will go without one.
Unlike in the criminal context, there’s no federal constitutional right to counsel in civil cases. Civil cases can involve a range of critical issues, including housing, public benefits, child custody and domestic violence. And while some civil litigants may be entitled to counsel in certain jurisdictions, in most of these cases, people who cannot afford a lawyer will be forced to go it alone. Doing so may mean that they fail to make it through the process, have their case dismissed or lose what otherwise would have been a winning case.
As directors of the Center for Access to Justice at Georgia State University College of Law, we agree with Judge Posner. People like Michael Davis desperately need help. Without legal assistance, their issues will likely be unresolved or, worse, wrongly resolved against them.
In some states, as many as 80 to 90 percent of litigants are unrepresented, even though their opponent has a lawyer. The number of these “pro se litigants” has risen substantially in the last decade, due in part to the economic downturn and the relationship between poor economic conditions and issues like housing and domestic relations.
The Legal Services Corporation, the single largest funder of civil legal aid for low-income Americans in the nation, reported in June that 86 percent of low-income Americans receive inadequate or no professional legal help for the civil legal problems they face. Here in Georgia, state courts heard more than 800,000 cases involving self-represented litigants in 2016 alone.
In some types of cases, not having counsel can make a dramatic difference. Take the example of low-income tenants facing eviction. Across the county, roughly 90 percent of landlords are represented by counsel, while 90 percent of tenants are not. Simply having a lawyer increases the odds of being able to stay in one’s home. When tenants represent themselves in New York City, they are evicted in nearly 50 percent of cases. With a lawyer, they win 90 percent of the time.
Navigating the system
Why is having a lawyer so important? The reality is that even the most mundane legal matters can require dozens of steps and complex maneuvering.
In one study, researchers identified almost 200 discrete tasks that self-represented litigants must perform in civil cases – from finding the right court to interpreting the law, filing motions, compiling evidence and negotiating a settlement. Some of these tasks require specialized knowledge of the law and of the court system. Almost all require time away from work and caring for children. Many also require the ability to get to the courthouse, to read and to speak English or access a translator.
The Access to Justice Lab at Harvard Law School has also tracked how labyrinthine the justice system can be. Just starting a routine process – like establishing a legal guardian for a minor – can take many steps, and even these can vary in unexpected ways, given the natural variation among judges and the particulars of a specific case.
Regardless of the type of case, missing just one step could mean you have to start the process all over again or even cause the case to be dismissed, sometimes without the option to refile.
People often quip that there are far too many lawyers. Yet the reality is that, while there are a lot of lawyers in certain geographic areas and certain specialties, in many rural areas – sometimes referred to as “legal deserts” – there are actually far too few lawyers.
Our center recently published a map of Georgia’s legal deserts. In our state, there are five counties without any lawyers at all and another 59 with 10 lawyers or fewer.
To make matters worse, in many of those counties, public transportation and internet access are sparse, and a significant percentage of the population doesn’t even have access to a vehicle.
The Self-Represented Litigation Network, a nonprofit focused on reforming the system to help those representing themselves, has also used mapping tools to depict how access to the justice system can vary across the country and sometimes even within the same state.
Changing the statistics
So, what do we do about the fact that the legal system is, for many people without a lawyer, nearly impossible to navigate? We believe that it will take a variety of different approaches to solve this issue.
In Washington, nonlawyers can be trained and licensed to offer legal support to those unable to afford the services of an attorney.
Still others, like Self-Represented Litigation Network founder Richard Zorza, emphasize simplification of legal processes, including changing or eliminating the procedural and evidentiary rules that make the process so difficult. For example, the Tennessee Supreme Court has approved plain-language forms and instructions, written at a fifth- to eighth-grade reading level, for use in uncontested divorces between parties with minor children.
Which approach is best? It may depend on the case – and an effective solution will include a combination of the above. Some cases will require nothing less than full-service representation by a lawyer, while in other contexts, streamlined procedures and simpler forms may be sufficient for pro se litigants to get a fair shake.
Whatever the solution, the problem is clear: Self-represented litigants’ grievances are real and, for too many, justice is out of reach.
New evidence pointed to innocence in the cases of these four Baltimore men, yet prosecutors would only let them go if they agreed to controversial plea deals.
by Megan Rose
Despite new evidence undermining the convictions of at least eight men for violent crimes in both Baltimore City and County over the last two decades, none were exonerated. Instead, they left prison only after agreeing to plea deals with state prosecutors. In each case, the men took either Alford pleas, in which defendants can maintain their innocence for the record, or were given time-served arrangements. With these deals, the defendants were granted their freedom, but gave up the right to clear their names. (Two additional men took similar deals but years later were fully exonerated after more exculpatory evidence was found in the police files.)
ProPublica’s examination of these cases reveals a troubling pattern — one that legal experts say plays out across the country. Persuasive innocence claims were met with refusals by the state’s attorney’s office to reexamine the cases, sometimes despite — or perhaps because of — discoveries of official misconduct. Prosecutors often fought for years to prevent the consideration of any new evidence or the testing of old evidence for DNA. Or they accommodated contrary new facts by stretching their theories of crimes. If the DNA in a rape case, for example, didn’t match the defendant, prosecutors would assert that another unknown assailant was involved, too. When judges ordered new trials or granted writs of innocence, prosecutors started bargaining for plea deals that would maintain the convictions.
Over time, prosecutors have defended their decision to seek deals, claiming in each case that they still believed in the defendants’ guilt. They also argued that given the amount of time passed, the cases would be difficult to retry.
But Michele Nethercott, the head of the Innocence Project Clinic at the University of Baltimore School of Law, said with these cases, “often, the truth doesn’t seem to matter much.”
The white victim identified him 10 weeks after the crime. The victim’s ID of Seward, an 18-year-old black man who had a moustache and goatee at the time of the murder, conflicted with her contemporaneous description after the attack of a clean-shaven assailant. Neither the fingerprints nor biological evidence from the crime matched Seward.
New Evidence Later Discovered
Seward’s employment records as a part-time dog washer, which were discovered 12 years after the trial, showed he’d been at work the day of the shooting. His boss also testified she kept the shop locked and it would have been “impossible” for him to have left.
Fought for the next 19 years, arguing, in turn, that the records weren’t admissible as new evidence and shouldn’t be given any consideration; that they didn’t provide an alibi because no hours were specified; and that they bolstered the case against Seward because the shop was near the victim’s house. One of the prosecutors on the case, John Cox, also told ProPublica that the records’ discovery so long after the trial meant they couldn’t be trusted.
Baltimore County State’s Attorney Scott Shellenberger said recently that because the victim saw her attacker up close, he wasn’t concerned that the case rested on a cross-racial identification. (That type of ID has been shown to be less reliable because people are generally bad at distinguishing facial features of people who aren’t their own race. Of the 351 people exonerated by DNA evidence since 1989, the national Innocence Project found that 41 percent had been convicted on mistaken cross-racial identification.)
How the Deal Happened
Judge said the employment records “thoroughly exculpate[d]” Seward and granted a writ of innocence. The state appealed and eventually lost. “The state’s immediate reaction was to offer a plea,” said Shawn Armbrust, of the Mid-Atlantic Innocence Project and one of Seward’s lawyers.
Shellenberger said that he’d been confident about the case and wanted to go to trial, but the victim didn’t want to testify again. “Keeping something on the record was extremely important to us.”
Why Defendant Agreed to Deal
Seward first turned prosecutors down, but then, as he awaited a new trial, a close friend was stabbed in prison. Seward had nine months before the trial began, so he reconsidered.
Type of Deal: Time served
The Original Case
Based solely on Barnes’ confession made after 31 hours in custody. A largely illiterate 17-year-old with a low IQ and no prior record, Barnes’ police-typed statement conflicted with the evidence in the case in major ways, such as how and where the 15-year-old female victim was killed. And he had an alibi for the time of the murder. (Barnes’ confession also incriminated two others, but no one else was charged.)
New Evidence Later Discovered
In 2009, 37 years after Barnes’ conviction, DNA evidence collected from the victim’s body was tested and excluded him from any sexual assault, further undermining his confession, which had described a violent gang rape that included Barnes and another man ejaculating. The DNA, which only came from one male, also excluded one of the other teenagers implicated in Barnes’ statement.
Prosecutor Sharon Holback said at the time that the state “vehemently and firmly believes that [Barnes] was fairly and properly convicted.” She argued that his confession was sound and that the third person implicated in it must have been the source for the DNA. That man couldn’t be found for comparison testing. (Holback was also the prosecutor who handled the post-conviction hearings in the case of James Thompson, whose rape and murder conviction was undermined by DNA testing, but was offered an Alford plea.)
How the Deal Happened
Judge Yvette Bryant went many months without issuing a ruling on the case, so Barnes’ lawyer took the innocence claims directly to Gregg Bernstein, who recently had been elected as Baltimore City state’s attorney on a reform agenda and had started a conviction integrity unit. The fighting over Barnes’ post-conviction motions had happened under Bernstein’s predecessor, so he had not publicly committed to any position. He was also free of one common concern prosecutors face when dealing with potentially wrong convictions: angry relatives of the victim who don’t want the case to unravel. With Barnes, the victim’s family so believed in his innocence that they had hired a lawyer to defend him.
Bernstein, who said recently that he didn’t recall the case, would concede only that Barnes didn’t deserve to be in prison anymore, seizing on a mistake in sentencing. The judge who had sentenced Barnes had thought wrongly that his only option was life.
Why Defendant Agreed to Deal
Barnes was 57 years old, had been in prison for more than 40 years and was in failing health. “I had to say to him ‘I’m confident in the end we will vindicate you, but it might be 1, 2 years or even 4 to 5 years, and there’s no guarantee,’” said Barnes’ pro bono lawyer, Michael Imbroscio, noting it was “the most difficult conversation I’ve ever had in my 22-year legal career.”
Type of Deal: Time served
The Original Case
A neighbor testified that she saw Griffin before and after the murder with a gun, and a second neighbor, who was 150 feet away, said she heard Griffin make threatening remarks the night of the murder. A set of keys found about 90 feet from the crime scene was connected to Griffin, who lived in the neighborhood.
New Evidence Later Discovered
In 2011, significant evidence was found in the police’s files that had never been given to the defense: three photo lineups in which eyewitnesses failed to identify Griffin and eight witness statements that either incriminated another suspect or contradicted the testimony used to prosecute Griffin.
One eyewitness pointed to Griffin’s picture in the lineup and said that he looked like the suspect, “but it’s not him.” Griffin’s picture was nine years old, so detectives went back to that witness and showed her another array with a current picture. She still did not identify him. Nonetheless, detectives used her description of the suspect to get a search warrant for Griffin’s home — never mentioning that she’d twice failed to pick him out of a photo array. The warrant also cited a neighbor who saw a man with a gun, but left out that he said the man wasn’t Griffin.
“There was pretty powerful evidence of innocence that was buried by the state,” Steve Mercer, Griffin’s attorney, said.
Baltimore City prosecutor Michael Leedy denied that the evidence represented a Constitutional violation. (In 1963, the U.S. Supreme Court declared that the state must turn over all favorable information to the defense in order for a trial to be fair, which has come to be known as the “Brady” requirement.) Leedy wouldn’t agree to a new trial.
How the Deal Happened
When a judge, who called the evidence “earth shattering,” indicated she’d be ordering a new trial, Leedy shifted, saying that although he didn’t believe “there were, in fact, any Brady violations” the allegations were “plausible enough” that he’d “concede to a resentencing on this matter.” This was the “best course,” Leedy said, to “ensure that Mr. Griffin will for the rest of his life remain convicted for the murder of James Wise.”
Leedy also wanted it on record that by accepting the deal Griffin gave up the right to an actual innocence ruling.
Why Defendant Agreed to Deal
Griffin was 61, knew his best years were gone and he might “die in here.” Having spent nearly 31 years in prison, he didn’t have it in him, he said recently, to wait another year-and-a-half for a new trial. But he is now trying to withdraw his deal, so he can clear his name and sue over the Brady violations. Marilyn Mosby, the current state’s attorney who ran in part on a platform of police accountability, is fighting his motion. (Her spokeswoman didn’t respond to multiple requests for comment.) A hearing is set for November.
Type of Deal: Alford plea (exonerated in 2000)
Pettiford, 23 and with a record, was identified as one of two shooters by two eyewitnesses and was tied to the murder weapon by a suspect in a related crime. But at trial, the witnesses said they’d been mistaken and the suspect said he’d lied about the weapon. Late in the trial, prosecutors produced a new witness who identified Pettiford. Pettiford had an alibi and no motive.
According to The Baltimore Sun, before the judge sentenced Pettiford to life plus 20 years, he said: “I don't care if every witness that appeared in the trial — including the detectives — come back here and say it was all a farce and it was all false and it was all wrong. I think justice was done.”
New Evidence Later Discovered
A year later, a separate federal drug investigation led to a different suspect in the murder, who pleaded guilty in federal court and told investigators that Pettiford had nothing to do with the crime.
There was also evidence that had never been given to the defense: a three-page statement from a friend of the victim that said he was the intended target and pointed to the same suspect prosecuted by the feds; a police bulletin that named that same suspect in connection to the murder; a statement from an eyewitness who identified the second shooter as someone the federal prosecutors thought was involved; and a police report naming that second person as a suspect.
Baltimore City prosecutor Nancy Pollack, who had handled the trial, didn’t act on the information federal prosecutors gave her suggesting Pettiford was innocent. Michelle Martz, Pettiford’s lawyer, said she went repeatedly “to beg and plead for [prosecutors at the time] to do something. I was floored the state wouldn’t be more concerned that they might have the wrong guy.”
How the Deal Happened
At the end of a post-conviction hearing, at which a detective revealed the existence of the three-page statement implicating someone else, the judge ordered Pollack to turn over everything in her files. Pollack agreed to a new trial and offered the plea.
Why Defendant Agreed to Deal
Pettiford, scared of what the prosecutors might do during a second round, had only one question: “Do I have to go back to prison if I take it?” He accepted the Alford plea, walked down the courthouse steps and into his family’s waiting car.
How He Was Later Exonerated
A year after the Alford plea, The Baltimore Sun newspaper exposed that the state had suppressed even more evidence and that a detective had misled the defense. In response, the judge vacated the Alford plea, saying it had been “a miscarriage of justice,” and the state declined to prosecute again. Pollack, who declined to comment, had already resigned, but the Baltimore Police Department found that the detective did nothing wrong. That detective was also named in a lawsuit filed by Sabein Burgess, who was wrongfully convicted in 1995 and exonerated in 2014.
A case in Baltimore — in which two men were convicted of the same murder and cleared by DNA 20 years later — shows how far prosecutors will go to preserve a conviction.
by Megan Rose
On Oct. 15, 2008, James Owens shuffled, head high despite his shackles, into a Baltimore courtroom, eager for his new trial to begin. Two decades into a life sentence, he would finally have his chance to prove what he’d been saying all along: The state had the wrong man.
Owens had been convicted of murdering a 24-year-old college student, who was found raped and stabbed in her home. Then he’d been shunted off to state prison until DNA testing — the scientific marvel that he’d watched for years free other men — finally caught up with his case in 2006. The semen that had been found inside the victim wasn’t his. A Maryland court tossed his conviction and granted Owens a rare do-over trial.
State prosecutors balked, insisting they still had enough evidence to keep Owens locked away and vowed to retry him. But they had also offered him an unusual deal. He could guarantee his immediate release from prison with no retrial and no danger of a new conviction — if he’d agree to plead guilty. The deal, known as an Alford plea, came with what seemed like an additional carrot: Despite pleading guilty, the Alford plea would allow Owens to say on the record that he was innocent. The Alford plea was an enticing chance for Owens, by then 43, to move on as a free man. But he’d give up a chance at exoneration. To the world, and legally, he’d still be a killer.
Owens refused the deal. He told his lawyer he wanted to clear his name, and he was willing to take his chances in court and wait in prison however long it took for a new trial to begin. It was a startling choice for an incarcerated defendant — even those with persuasive stories of innocence typically don’t trust the system enough to roll the dice again with 12 jurors or an appellate court. Most defendants, lawyers say, instinctively and rationally, grab any deal they can to win their freedom back.
The decision cost Owens 16 more months behind bars. Then, on that fall day in 2008, when the trial was set to begin, the prosecutor stood and, without a glance at Owens, told the judge, “The state declines to prosecute.”
In a legal gamble in which the prosecution typically holds the winning cards, Owens had called the state’s bluff. He walked out that day exonerated — and with the right to sue the state for the 21 years he spent wrongly imprisoned.
It seemed the ultimate victory in a city like Baltimore, with its deeply rooted and often justified mistrust of police and prosecutors. But Owens wasn’t the only man convicted of murdering that 24-year-old college student. Another white Baltimore man, James Thompson, had also been put away for life. Tests showed that his DNA didn’t match the semen either, but the state’s attorney’s office refused to drop the charges. Instead, as it had with Owens, it offered Thompson an Alford plea. Thompson grabbed the deal and walked out of prison a convicted murderer.
Same crime. Same evidence. Very different endings.
Ever since DNA ushered in a new era in criminal justice, even the toughest law-and-order advocates have come to acknowledge a hard truth: Sometimes innocent people are locked away for crimes they didn’t commit. Less widely understood is just how reluctant the system is to righting those wrongs.
Courts only assess guilt or innocence before a conviction. After that, appellate courts focus solely on fairness. Did everyone follow the rules and live up to their duties? Getting a re-hearing of the facts is a monumental, often decades-long quest through a legal thicket. Most defendants never get to start the process, let alone win. Even newly discovered evidence is not enough in many cases to prompt a review. And, for the tiny percentage of defendants who get one, the prosecutors still have the advantage: They have final discretion about whether to press charges and how severe they’ll be. Powerful influence over the pace of a case, the sentence and bail. And, compared with an incarcerated defendant, vast resources.
No one tracks how often the wrongly convicted are pressured to accept plea deals in lieu of exonerations. But in Baltimore City and County alone — two separate jurisdictions with their own state’s attorneys — ProPublica identified at least 10 cases in the last 19 years in which defendants with viable innocence claims ended up signing Alford pleas or time-served deals. In each case, exculpatory evidence was uncovered, persuasive enough to garner new trials, evidentiary hearings or writs of actual innocence. Prosecutors defend the original convictions, arguing, then and now, that the deals were made for valid reasons — such as the death of a key witness or a victim’s unwillingness to weather a retrial. The current state’s attorney in Baltimore County, Scott Schellenberger, said that “prosecutors take their oath to get it right very seriously” and wouldn’t stand in the way of exoneration if the facts called for it.
The menace of such deals, though, is clear: At worst, innocent people are stigmatized and unable to sue the state for false imprisonment, prosecutors keep unearned wins on their case records and those of the department, and no one re-investigates the crime — the real suspect is never brought to justice.
The plea deals ProPublica examined in Baltimore City involved two prior state’s attorneys. A spokeswoman for Marilyn Mosby, the current chief, didn’t respond to numerous requests for comment or for interviews with prosecutors in those cases.
The pleas in two of these Baltimore cases were later overturned after misconduct was uncovered in the original convictions, and the men won full exonerations. One, Walter Lomax, a black man convicted by an all-white jury shortly after the 1968 race riots in the city, served 38 years of a life sentence before taking a time-served deal in 2006. The state didn’t concede he was innocent until 2014.
Wrongful convictions are bad enough, Lomax said, but they’re even more “horrible when it becomes obvious the person is innocent and the state won’t at the very least acknowledge that.”
Some legal and cognitive science experts suggest that once detectives and prosecutors commit to a suspect and a theory of the crime, it changes how they evaluate evidence, and then the system itself exacerbates that focus at every step. Prosecutors are rewarded for proving and defending their theories, leaving little incentive to acknowledge weaknesses in cases, particularly in high-stakes crimes such as rape and murder. This mind-set is bolstered by one of the great positives of the system, one which legal experts, even those dedicated to exposing wrongful convictions, acknowledge: Prosecutors generally get it right.
Psychologists have a myriad of terms for the powerful, largely subconscious biases at play, but most people would call the collective phenomenon “tunnel vision.”
Wrongful convictions involving violent crimes typically involve poor, often minority defendants, sometimes with limited education or IQs, who are convicted on scant evidence or flawed forensics. The cases are fueled by an early theory of the crime that relentlessly drives the investigation and prosecution — even, in some cases, to official misconduct.
“At some point psychologically, you go from figuring out what happened to figuring out how to prove it happened the way you said it did,” Barbara O’Brien, a law professor involved with the National Registry of Exonerations at the University of Michigan, said. “It’s very difficult to take a step back from that.”
Marty Stroud, a former Louisiana prosecutor, made national headlines in 2015 when he penned a rare public apology for putting an innocent man on death row for 31 years. He told me recently that the system comes down hardest on those without the means to defend themselves. “It’s easy to prosecute those people and put them away and not think twice about it because no one is speaking for them,” he said.
The certitude of detectives and prosecutors hardens when their theory is validated by a judge or jury, and later, by an appellate court. Time, instead of allowing for fresh eyes, often makes biases worse. When a defendant like Owens gets a new hearing, the district or state’s attorney’s office — long committed to his guilt — has to re-justify that decision.
If they admit they got it wrong, prosecutors have to accept that a person was robbed of years of his life, the real perpetrator was never found, the victim’s family was let down, and, to top it off, they now have a cold case that’s unlikely to be solved. With the Alford plea, not only is the real perpetrator not caught but the case is officially closed on the books. It also dings their won-loss record on typically high-profile cases. The idea of a wrongful conviction, Stroud said, assaults a prosecutor’s sense of identity that “we’re the good guys. We have the white hats and are putting the bad guys in jail.”
Exonerations are also like a Pandora’s box in two important and unsettling ways. First, looking closely at why wrongful convictions happen — even in cases when everyone worked in good faith — could force a reckoning about deeply held beliefs on what is required to solve and punish crimes. False confessions, for example, often are a result of time-honored, and perfectly legal, tactics to soften up a suspect, such as lying or conducting questioning in the dead of night, said Steven Drizin, the former director of Northwestern University’s Center on Wrongful Convictions. When wrongful convictions are a result of misconduct, there could be a string of other bad convictions connected to that prosecutor or detective.
It’s no coincidence, many defense lawyers across the country say, that when misconduct comes up, prosecutors are quicker to propose an Alford plea or similar deal, effectively quashing any further inquiry into the behavior. One ACLU attorney told me about a galling Alabama case in which prosecutors insisted they would re-seek the death penalty, and it was “only because we were continuing to expose prosecutorial misconduct that they finally agreed to settle the case.”
On a muggy August evening in 1987, police officers swarmed a block of squat brick rowhouses in a mostly white, working-class neighborhood in southeast Baltimore. A young woman had been raped, strangled with a sock and stabbed to death in her second-floor bedroom. Detective Thomas Pellegrini, who’d been assigned to homicide only the year before and, who, by his own admission, was green enough not to sweat the details, caught the case as lead detective. He was assisted by Detective Gary Dunnigan and the squad’s boss, Sgt. Jay Landsman. The trio would become famous a few years later when David Simon heralded them in his book “Homicide: A Year on the Killing Streets” and on the subsequent prime-time TV show it inspired.
The next morning, the neighborhood reverberated with the choppy drone of police helicopters circling overhead. Thompson, a gas station attendant who’d suffered a brain injury in childhood, lived down the street with his wife and their two young boys. He’d heard detectives were looking for a knife and offering a $1,000 reward. It seemed a prime opportunity for a quick buck. The short, stocky 27-year-old wandered over to the yellow police tape and handed Pellegrini a large switchblade. Thompson said he’d found the bloody weapon in the grass the night before, pocketed it, and cleaned it at home — somehow unaware of the massive overnight police presence. At Pellegrini’s urging, he fetched a pair of cut-off jeans he said he’d been wearing at the time, which had a small bloodstain on the back right pocket.
Forensics showed a possible presence of blood or other unknown substance on a small area of the knife and no evidence to suggest it was used in a violent struggle, such as a broken tip from hitting bone. The detectives moved forward on the assumption it was the murder weapon.
Two days later, rather than being thanked and handed the reward money, Thompson found himself under suspicion. In a panic, he fingered Owens. The two had been casual friends, but they’d had a falling out over accusations of theft when they’d briefly worked together at the gas station. In a thoughtless burst of vengeance, Thompson gave an official statement at the police station; he said the knife was actually his but claimed Owens had stolen it and then told him where to find it the day after the murder. Thompson noticed the detectives ate up everything and realized they had nothing else to go on. At the time, there seemed to be no risk in just making it up as he went along. After he retrieved the knife, Thompson told detectives, Owens washed it in the kitchen sink. Thompson didn’t give the police any details about the murder, but he said Owens had told him he’d had sex with the victim.
Owens, 22 at the time, was arrested and charged with burglary, rape and first-degree murder. In just 72 hours, the detectives had closed the case. There was no forensic evidence, motive or eyewitnesses linking Owens to the crime. Landsman and Pellegrini would later say they had believed at the time that without Thompson, Owens would walk. Even the prosecutor, Marvin “Sam” Brave, said he viewed Thompson’s story as “implausible” and didn’t think he had the truth, but he nevertheless pressed charges.
Brave recently told me that “if you think you’ve got the right guy, but not that you can necessarily prove it beyond reasonable doubt, it doesn’t mean you don’t go forward.”
When Owens’ trial began in February 1988, Thompson was the star witness. He’d considered coming clean several times but was afraid he’d be sent to jail. He’d lied to the cops during a previous encounter and had been arrested for making a false police report. Despite that history, the detectives in this case had made him feel like a hero. Pellegrini didn’t think Thompson was “the sharpest pencil in the box,” but at that point in his career, he said in a recent deposition, he thought only suspects would lie to him. Brave also was unconcerned. “If the part that you think he is telling the truth [about] contributes to your case, you use it,” he said. “He doesn’t have to be telling the truth about everything.” The rest of the case relied mainly on minor scratches Owens, a factory worker, had on his arm and a spot of possible blood that had been swabbed from his hand. Two jailhouse snitches who’d been Owens’ cellmates while he awaited trial claimed he had separately confessed to them, though the story Owens purportedly told them contradicted the version Thompson had given police.
In his opening statement, Brave told the jury that any notion that police had “bungled the investigation” and the defendant was innocent was from the fantastical realm of television. But Brave was concerned enough about Thompson’s story that he took him aside the morning of his testimony and warned he was going to “look silly” and it was time he “told us the truth about how that knife really got back into his possession,” according to testimony Brave later gave about the conversation. He even assured Thompson he wouldn’t be prosecuted for making a false statement.
When Thompson took the stand, he told the jury he’d had a “heart to heart” with the prosecutor and was “ready to tell the truth.” In this new version of events — which Brave described later as “sellable” to a jury — Thompson said that around 8 a.m. the morning after the murder, Owens had come by his house and given him the bloody knife. Except this story, too, was a lie. As one of the detectives noted to Brave afterward, Owens’ boss had told police he’d been at work by that point in the morning. “The more I tried to fix things to go in my favor, the bigger hole I dug for myself,” Thompson told me recently.
That Friday Brave went home “really worried about the case,” and stewed over the weekend that he was on “a sinking ship.” Late Sunday evening, he met with Pellegrini and told him to take blood and hair samples from Thompson for testing to exclude him as a suspect and bolster his credibility as a witness. Brave already knew the pubic hairs found on the victim didn’t match Owens. Neither did saliva on a cigarette found at the scene.
During a lunch break at trial the next day, Brave and the three detectives met with the city’s forensics expert who, they said, told them the hair was a match to Thompson. Detectives brought Thompson in, read him his rights, and told him “he was in a lot of trouble” and might be charged. His hair, Landsman told him, had been found in the victim’s house. Thompson later contended he knew this couldn’t possibly be true — he hadn’t been there at all. But at the time, he said, he was scared and thought if he just said what pleased the detectives and got Owens convicted, he’d be alright.
Like an actor doing take after take to accommodate the wishes of a director, Thompson went through several more versions about what supposedly happened, adjusting his story to reflect additional pieces of evidence the detectives told him about. Thompson first said he broke into the house but didn’t go upstairs. After the detectives told him his hair had been found on the second floor, Thompson then said he did go upstairs but hid in the bathroom while Owens attacked the victim after she unexpectedly came home. Detectives then told him his pubic hair had been found on the victim’s buttocks, suggesting his pants must have been down. After several hours of this back and forth, Landsman went to the courtroom and handed Brave a note, saying Thompson had admitted to burglarizing the house with Owens.
Thompson was taken directly from the interrogation room to the witness stand to testify a second time. Now, speaking so softly at first that the judge twice had to tell him to raise his voice, Thompson said he and Owens had broken into the apartment to steal jewelry, and Owens attacked the victim when she came home unexpectedly. Then, while Owens raped her, Thompson testified that he masturbated over her back — his newly concocted explanation for how the pubic hair the state claimed was his had ended up on the victim. Owens, Thompson said, then stabbed her and threw the knife on the ground, which Thompson picked up on the way out.
This was, unbeknownst to Owens or his lawyer, Thompson’s eighth version of events — the one that satisfied the officers that they had enough “to get James Owens,” as one detective later put it.
Even on the stand implicating himself in the crime, with both Brave and Owens’ lawyer stressing charges he might face, Thompson said the full ramifications of his lies didn’t dawn on him. He thought he’d be fine once the trial was over.
“I never hurt anyone. I never touched that young lady,” Thompson said again and again on the stand, adding at one point that he’d take a polygraph to “prove my innocence on that particular behalf.”
Owens was convicted of the burglary and the murder but found not guilty of the rape. Thompson’s changing stories had cast enough doubt that Brave acknowledged in his closing argument that either man could have committed the rape. Thompson, who had been arrested right after testifying and immediately recanted his confession, was later convicted of burglary, rape and murder. Thompson’s multiple different stories of the crime had been accepted as truth, but his multiple attempts to protest his innocence were taken as lies.
Both men were sentenced to life without parole. Owens was the first in Maryland to receive such a punishment.
Owens never resigned himself to his fate. A few years into his sentence, he read about DNA in a magazine and implored everyone he could think of to test the evidence in his case. He eagerly conferred over coffee with Kirk Bloodsworth, the inmate across the hall, then cheered Bloodsworth’s exoneration by DNA in 1993, the first of its kind in the nation involving a death sentence. Shaking Bloodsworth’s hand when he left prison, Owens thought, “Man, one day I’ll be out there.” Then the O.J. Simpson trial introduced him to Barry Scheck, the founder of the Innocence Project, and Owens sent his office a letter. Shunned by his family and cut off from the way most convicts got cash, he traded chicken sandwiches from his kitchen job for stamps to mail it. Still, no one took up the cause. The semen found in the victim and the blood on Thompson’s shorts sat undisturbed in the Baltimore medical examiner’s office for 19 years.
Finally, after a special division within the Maryland public defender’s office became interested, he got a new lawyer and a hearing. A judge ordered DNA testing in 2006 — over the objections of prosecutors — and the results dismantled the state’s theory of the crime. At both trials, the state had argued that the break-in, the rape and the murder were inextricably linked. At Owens’s trial, the prosecutor told the jury Owens had leered at the victim as she sunbathed and “decided that he wanted her.” He broke into her house, laid in wait for her to return, raped her, strangled her and “for good measure … mutilate[d] her with multiple stab wounds.” The prosecution doubled down on this narrative at Thompson’s trial, telling the jury he and Owens “had to humiliate [the victim] by taking turns raping her.” And the blood on the back pocket of Thompson’s shorts, the prosecutor said, was definitively the victim’s.
DNA proved most of those arguments false. The semen found in the victim didn’t come from Owens or Thompson, and the blood on the shorts wasn’t even from a woman. It was Thompson’s own. When Owens heard the news at Jessup Correctional Institution, just southwest of Baltimore, he sat on the floor of his cell and cried.
The Baltimore City State’s Attorney’s Office was unmoved. Prosecutors fought both Thompson and Owens as the two separately sought to have their convictions overturned.
Owens’ case moved faster through the courts. His new attorney was Stephen Mercer, a Maryland defense attorney with an earnestness that had survived more than 20 years in the trenches. Mercer knew the state, with its evidence decimated, was going to push for a deal. He fumed that prosecutors were using psychological warfare to do it — opposing bail and slowing the case, so Owens would spend more time on the inside thinking about being on the outside. Owens’ evidentiary hearing was moved from January to March to May. Only then, nine months after the DNA showed Owens wasn’t the rapist, did the state agree to a new trial while insisting that Owens was still guilty of murder.
The state’s attorney’s office, run at the time by Patricia Jessamy, argued that the rape was immaterial to the murder, and, a spokeswoman said, the DNA evidence was “trivial.” Mark Cohen, the new prosecutor, told Mercer that other evidence in the case, including Thompson’s confession and the testimony of jailhouse informants, was still persuasive. (Jessamy didn’t respond to several phone messages requesting comment and Cohen has since died.)
Mercer said the prosecutor’s stance was “very cynical. It really seemed that the desire to keep the conviction was for reasons that had nothing to do with the evidence.” The state’s guiding star, Mercer knew, was a rigid belief that what was long ago decided by a jury, and upheld by an appellate court, shouldn’t be continually second-guessed.
In Owens’ case, it wasn’t just the semen and the blood that didn’t hold up 20 years later. The type of hair analysis done on the pubic hair had subsequently been dismissed as junk science. The hair, along with the knife, had been destroyed. But the state’s own expert, who’d inspected the hair at the time of the original trials, said at a hearing that the scientific community no longer does a visual hair comparison to “draw the conclusions we drew back in 1988 with a microscope.” Now analysts use DNA analysis.
Not long after Owens was granted a new trial in May 2007, Cohen proposed a deal. It wasn’t surprising. The plea bargain is the lifeblood of the overburdened criminal-justice system. About 95 percent of cases never go before a jury. Instead, most defendants agree to plead guilty in exchange for lesser sentences. In cases like Owens’, in which new evidence undermines old, legal advocates question whether incarcerated defendants should even be offered a plea. In every case, prosecutors “need to really inspect their own motivations,” Thiru Vignarajah, a former federal and Baltimore City prosecutor who later served as deputy attorney general of Maryland, said. “Are they offering a plea or time served because that’s in the best interest of the case, or are they allowing some institutional interest of preserving the conviction to trump a prosecutor’s duty to seek justice?”
A year before Owens’ retrial, Jessamy’s office had convinced another defendant to take an Alford plea. Locked up for 20 years, that defendant had at first refused a deal after he, too, was granted a new trial because of DNA evidence. As the trial was set to begin, the prosecution requested a postponement. When the state again delayed the subsequent trial date, the defendant broke down. He accepted the plea.
Afterward, Jessamy’s spokeswoman scoffed at the defendant in a news story, saying it was “inconceivable” that after 20 years the defendant couldn’t wait a little longer, and “if he truly believes he is innocent, he should have gone to trial to see that justice is served.”
As Owens’ trial got closer, Cohen kept sweetening the deal, knocking down the charge and requiring less probation. Finally, they offered Owens an Alford plea for second-degree murder, time served and no probation. Mercer lost sleep over whether Owens should take it. A trial was risky and a chance at guaranteed freedom was rare for any defendant. Owens repeatedly asked himself: “Why are they doing this to me? Why should I have to plead guilty to something I didn’t do?” Now mostly bald and with a moustache, he’d grown up in the foster care system. He’d been viciously attacked while in prison. He didn’t have much to hold onto except his resolute insistence from day one that he was innocent. He wasn’t about to “admit there was sufficient evidence to convict him while playing this wink-and-nod game that he was claiming his innocence,” Mercer said. So the Alford plea, like all the others Mercer had passed to Owens through the Plexiglass, was flatly rejected: “Mr. Mercer, there is no way. I am going to trial.”
Cohen, suspicious that the deal hadn’t been properly relayed, had Owens and Mercer join him for a bench conference, so that the Alford plea could be offered in front of the judge. “I’m not taking nothing, dude,” Owens recalled saying. “I will die in the penitentiary if I have to.”
In October 2008, Owens was vindicated. Cohen was forced to tell the court he didn’t have the goods for a retrial. Owens stepped out of prison free for the first time in 21 years, telling gathered reporters, “You can’t give me that time back.”
Thompson, meanwhile, was fighting the same battles while incarcerated about 75 miles away at Roxbury Correctional Institution in Hagerstown, Maryland. But in his case, prosecutors were employing a perplexing logic. They’d agreed that the DNA evidence from the semen warranted a new trial for Owens, who had not been convicted of rape, but they refused a new trial for Thompson, who had been.
Thompson, by now gray-haired and hard of hearing, was dismayed. He’d saved the newspaper clipping about the DNA findings, and when he read that Owens had gone free, he was certain he’d be next. He couldn’t understand why the DNA could clear Owens of all charges while it did nothing for him, even though the DNA excluded him as well. But Mercer, who’d picked up Thompson’s case after freeing Owens, did. Thompson had confessed, and that was prosecutorial gold. In Simon’s book about the Baltimore detectives who’d secured Thompson’s confession, he detailed the interrogation tactics they had commonly employed. To get confessions, he wrote, the detective became a “huckster … thieving and silver-tongued,” and without the “chance for a detective to manipulate a suspect’s mind, a lot of bad people would simply go free.”
Poorly understood at the time is that such manipulation can also compel innocent people to agree to whatever the police want. As the U.S. Supreme Court noted in 2009, “a frighteningly high percentage of people … confess to crimes they never committed.” According to the Innocence Project, 28 percent of defendants later exonerated by DNA had falsely confessed.
During the initial trials in 1988, prosecutors had argued that the pubic hair and the blood on the jeans proved Thompson was telling the truth, but in 2009 the Maryland Court of Appeals wrote that the DNA finding “usurps the State’s arguments all together.” In essence this meant none of Thompson’s statements to police or prosecutors throughout the case were corroborated by evidence.
Despite the statistics, convincing a jury that someone would falsely confess to a crime — particularly to something as heinous as a murder or a rape — is incredibly hard. Juries want to believe that people are rational actors, like themselves, with an almost primal instinct toward self-protection. It wouldn’t matter that the state no longer had the evidence to prove it, Mercer knew, a jury would most likely myopically focus on the confession.
Thompson told me he’d been happy for Owens when he was released — he’d always wished he could apologize to him for what he did — but that feeling had faded into self-pity as the calendar went from 2008 to 2009 to 2010 and his case stalled in the courts. Now he was mostly anxious. He just wanted relief, whatever it might be, so when Sharon Holback, the new prosecutor on the case, eventually offered him an Alford plea — 23 years after he’d first fatefully approached police — his excitement overwhelmed his sense of injustice.
Mercer worked to make it the best deal he could. If Thompson took the plea, it meant the state would let him go, but the deal had some risky strings attached. Any charge that carried a life sentence had to come off the table, because in Maryland, a probation violation — even something as relatively minor as a DUI — sends the defendant back to prison to serve the remainder of his sentence. The two sides agreed to second-degree murder, which carries a maximum of 30 years. That way if Thompson violated probation, he’d only have seven and a half years over his head, since he had served more than 22.
Gregg Bernstein, Baltimore City state’s attorney from 2011 to 2015, oversaw at least two similar deals. He couldn’t remember the details but said he’d thought a lot about whether it was okay for an innocent man to take an Alford plea. In the end, he said, most cases lack black-and-white certainty, regardless of evidence suggesting innocence. “It’s not that simple to say yay or nay,” he said. “Pleas are a way to resolve them.”
Former prosecutor Vignarajah, though, told me he wonders if that kind of resolution only looks like a win for everyone on paper. “In reality everyone lost,” he said. “The victim sees no justice. The defendant is walking away with a conviction. And the prosecution didn’t get anyone to take responsibility [for the crime].”
On July 29, 2010, when Thompson left prison under the Alford plea, Holback got the last word: Thompson “is in no way exonerated.”
Since their releases, Thompson and Owens have led dramatically different lives.
Thompson thought he could go back to the person he was almost 23 years earlier, before the murder rap, but society didn’t look at him that way. When he applied for a job, he put a question mark where the form asked if he’d been convicted of a felony.
“I tried to explain I was wrongfully convicted, but people don’t want to hear that,” Thompson said. “There’s no reasoning with somebody. ‘Innocent people do not go to prison’ is just the motto.”
Thompson held onto his freedom for only a little over a year. In October 2011 he was arrested after his ex-girlfriend claimed that he had molested her young daughter. Thompson, who’d recently kicked the girlfriend out of his apartment, denied the charge, saying he’d spanked the girl’s bare butt to discipline her. The state reduced the charges to a misdemeanor for touching the girl’s buttocks and gave him time served for the five months he’d been in jail.
It didn’t end there, though. Because the misdemeanor violated his probation attached to his Alford plea, Thompson went from a local jail to a state prison to serve the remaining seven and a half years.
Mercer said he believes the Alford plea made it very difficult for Thompson to defend himself. “It was a question of credibility,” Mercer said. “Who’s going to believe him? He was stuck having to do damage control.”
Owens has fared better. He has been embraced by what little family he had. He has moved into a cousin’s house and has begun working with him cleaning gutters and doing landscaping. And he has grown close to his nieces and nephews, a bittersweet feeling for someone who’d had no chance to build a family of his own. Owens told me he has tried not to let the anger sink him, but he struggles. His exoneration came without compensation or even an apology. “What’s striking in these cases is a total lack of accountability,” said Michele Nethercott, of the Innocence Project in Baltimore. “Nothing ever really happens” to the police and prosecutors whose actions led to wrongful convictions.
Owens wonders today if his prosecution became all about keeping the win. “Instead of focusing on me and getting me to take a deal for something I didn’t do, they need to focus on the victim. Her murder has never been solved,” he said. “I think they should go back and look and do something for this girl.”
In 2011, Owens found a lawyer, Charles Curlett, to sue Baltimore. Curlett determined that there were several issues of misconduct involved in Owens’ conviction. First, his lawyer had been told nothing of the changing stories Thompson gave the detectives. The information could have been used to undermine Thompson’s credibility and failing to share it was likely a violation of Owens’ due-process rights. Such failures are known as Brady violations, after a 1963 Supreme Court case in which the justices determined that withholding favorable information from the defense is unconstitutional. Also, one of the jailhouse snitches who testified that Owens had confessed had been a police informant for years and said he recruited the other snitch. This, too, wasn’t revealed to the defense, nor were the informant’s letters asking for favors in exchange for his testimony.
Brady violations had become so prevalent in Baltimore’s courts that the Fourth Circuit Court of Appeals recently admonished the city’s prosecutors to remember their legal obligations: “Only this practice ensures the fair trial that our justice system aspires to provide” and makes it so “no one has to worry after the fact whether the jury convicted the wrong person.”
The city furiously fought Owens. Dodging such suits, many defense lawyers contend, is part of what drives these plea offers. “If not expressly that, it’s implicit in a lot of decisions made in this setting,” said Michael Imbroscio, an attorney who had a client in Baltimore City take a time-served deal. The city won dismissal of Owens’ suit against the state’s attorney’s office and Brave, who the court ruled had immunity, and the Baltimore Police Department. But the case is going to trial in federal court, likely early next year, against detectives Pellegrini, Landsman and Dunnigan as individuals. There’s millions in compensation at stake for Owens and a public airing of misdeeds for the city.
Civil litigation is “so important,” Mercer said. “Often, that’s the only time there’s scrutiny into what wrongs were done.”
The type of misconduct alleged in Owens’ case is echoed in nine more of the 14 exonerations out of Baltimore City and County since 2002, according to the National Registry of Exonerations. The 2014 exoneration of Sabein Burgess, for example, came after it emerged that Baltimore detectives never revealed a key detail to the defense: that a young witness had told them he saw the murder suspect and it wasn’t Burgess. The detectives even submitted a report falsely stating that the witness had been asleep during the crime. Like Owens, Burgess is suing, claiming that detectives “cut corners and rushed to judgment.” His trial is set for this fall and names a different group of detectives.
Misconduct can also be found in the cases of some of the remaining exonerated defendants who, like Thompson, aren’t officially considered exonerated at all but who were released under Alford pleas or time-served deals after questions were raised about their initial convictions. Curlett is representing one such man, Wendell Griffin, who was convicted of murder in Baltimore in 1982. Decades later, it came to light that three detectives — two also featured in Simon’s book and a third who is Landsman’s brother — had buried photo lineups and witness statements pointing to Griffin’s innocence. He was let out on a time-served deal in 2012.
The detectives named in the Owens and Burgess lawsuits have denied allegations of misconduct. Michael Marshall, who represents the detectives in Owens’ and Griffin’s suits, declined to comment, referring questions to the chief of legal affairs for the Baltimore City Police Department, who didn’t return several calls.
Thompson, whose parents died while he was in prison, has been abandoned by the rest of his family. He was released early for good behavior in February after serving a little more than five of his remaining seven and a half years, and as much as he blames himself for his mistakes, he now thinks his plea was a “bum deal.” He wishes there was a way to prove to his loved ones that “although I served 30 years … I didn’t commit the crime.”
The strain of the Alford plea proved too much for one of Baltimore’s wrongly convicted. Chris Conover left prison under the plea in 2003 after DNA called into question his murder conviction in Baltimore County. On the outside, he suffered from severe panic attacks and depression, but his wife told the local newspaper that he couldn’t face in-patient treatment, which meant being back behind locked doors. His petition for a pardon from Maryland’s governor was turned down in 2012. Three years later, Conover killed himself.
“Having been convicted really defines who you are — it becomes itself a prison,” Mercer said. “Once out, with a conviction still on your shoulders, having maintained your innocence in a Alford plea is of little comfort and of very little practical benefit.
'In our country,' said bill co-sponsor Sen. Kamala Harris, 'whether you stay in jail or not is wholly determined by whether you're wealthy or not – and that's wrong.'
Civil liberties and criminal justice reform groups are celebrating the introduction of a new bill in the U.S. Senate on Thursday that would overhaul the nation's money bail system which critics have long decried for incarcerating people regardless of guilt or innocence but simply because of their inability to pay.
Introduced by Sens. Kamala Harris (D-Calif) and Rand Paul (R-Ky.), the Pretrial Integrity and Safety Act of 2017 is being applauded for addressing at least a portion of the pervasive inequality found throughout the U.S. justice system.
"Too many people in this country must spend weeks, months, or even years in jail waiting for trial only because they can't afford bail," said Kanya Bennett, legislative counsel at the American Civil Liberties Union, which has endorsed the bill. "Even though these people are innocent in the eyes of the law, they’re punished, deprived of their freedom with disastrous consequences for their families and their lives."
The bill, which can be read in full here, would provide funding and federal guidelines to incentivize state and local governments to either scrap their money bail systems or greatly reform them.
"Our justice system was designed with a promise: to treat all people equally," Sen. Harris said in a statement. "Yet more than 450,000 Americans sit in jail today awaiting trial and many of them cannot afford 'money bail.' In our country, whether you stay in jail or not is wholly determined by whether you're wealthy or not – and that's wrong. We must come together to reform a bail system that is discriminatory, wasteful, and fails to keep our communities safe."
By specifying that any conditions placed on a defendant's release "should be based on the least restrictive, non-financial conditions that a judicial officer determines is necessary," the bill could potentially limit the negative impact on individuals and families—while also providing local governments huge savings. Ames Grawert, a criminal justice researcher with the Brennan Center for Justice, told the Guardian the proposal could go a long way in reversing some of the policies that have driven up incarceration rates in the last decades.
"We know that the 1984 [tough-on] crime bill did have an effect on states, did convince states to adopt tougher sentencing laws, did convince them to build more prisons – so the idea is that basically, if you flip those incentives on their head, maybe you could incentivize a different kind of behavior," said Grawert.
While the bill is far from perfect, said the ACLU's Bennet, "its reforms would be progress towards fixing the systematic problems that have led to mass incarceration."
Republished with permission under license from CommonDreams.
We've included 21 full-length movies you can watch now on your computer or device and 12 additional movie trailer recommendations to watch during black history month and beyond. Unfortunately, we cannot possibly list every good move related to black history and there are plenty of excellent movies not included on this list. However, we hope you discover something new and enjoy watching.
Full Movies Which Were Available on the Date of Publication
The Vernon Johns Story (1994 Full Movie)
Vernon Johns (April 22, 1892 – June 11, 1965) was an American minister at several black churches in the South. He is best known as the pastor 1947-52 of the Dexter Avenue Baptist Church in Montgomery Alabama. He was succeeded by Dr. Martin Luther King, Jr.
The video has been deleted, trailer now shown below.
King (1978 Full Movie)
King was a television miniseries based on the life of Martin Luther King Jr. It aired for three consecutive nights on NBC from February 12 through 14, 1978.
The Rosa Parks Story 2002
Something the Lord Made (2004 Full Movie)
Based on the true story of Vivien Thomas, a carpenter that wanted to be a doctor, unable to attend college he works for a real doctor as a janitor. Realizing what this young man is capable of the doctor gives him real tasks and as a team, they go to conquer what other people thought impossible. Based on a true story. Vivien Thomas became a black cardiac pioneer and his complex and volatile partnership with white surgeon Alfred Blalock, the world famous "Blue Baby doctor" who pioneered modern heart surgery.
Keep the Faith, Baby – Adam Clayton Powell Movie 2002
Adam Clayton Powell Jr. (November 29, 1908 – April 4, 1972) was a Baptist pastor and an American politician, who represented Harlem, New York City, in the United States House of Representatives (1945–71). He was the first person of African-American descent to be elected from New York to Congress. Oscar Stanton De Priest of Illinois was the first black person to be elected to Congress in the 20th century; Powell was the fourth. Re-elected for nearly three decades, Powell became a powerful national politician of the Democratic Party and served as a national spokesman on civil rights and social issues.
Deacons for Defense 2003
The Deacons for Defense and Justice was an armed self-defense group of African-Americans that protected civil rights organizations in the U.S. Southern states during the 1960s.
The Tuskegee Airmen 1995
The Tuskegee Airmen was a group of the first African-American military aviators (fighter and bomber) in the United States Armed Forces who fought in World War II. Officially, they formed the 332nd Fighter Group and the 477th Bombardment Group of the United States Army Air Forces. All black World War II military pilots who trained in the United States trained at Moton Field, the Tuskegee Army Air Field, and were educated at Tuskegee University, located near Tuskegee, Alabama.
Ghost of Mississippi 1996
A Mississippi district attorney and the widow of Medgar Evers struggle to finally bring a white racist to justice for the 1963 murder of the civil rights leader. Medgar Wiley Evers (July 2, 1925 – June 12, 1963) was a black civil rights activist from Mississippi who worked to overturn segregation at the University of Mississippi and to enact social justice and voting rights. He was killed by a white segregationist.
In October of 1966, the Black Panther Party for Self Defense was created in response to challenge police brutality in Oakland.
The Marva Collins Story 1981
Marva Delores Collins (August 31, 1936 – June 24, 2015) was an American educator who started the highly successful Westside Preparatory School in the impoverished Garfield Park neighborhood of Chicago in 1975.
Introducing Dorothy Dandridge 1999
Dorothy Jean Dandridge (November 9, 1922 – September 8, 1965) was an American film and theater actress, singer and dancer. She is perhaps best known for being the first African-American actress to be nominated for an Academy Award for Best Actress for her performance in the 1954 film Carmen Jones
The Josephine Baker Story 1991
Josephine Baker, born in St. Louis, MO, was a singer and entertainer who skyrocketed to international fame as a performer in Paris. Baker renounced her U.S. citizenship because of racism and became a French national and war hero during WWII.
The Jacksons: An American Dream (1992)
Based upon the history of the Jackson family, one of the most successful musical families in show business, and the early and successful years of the popular Motown group The Jackson 5.
The Temptations 1998
Biography of the singers who formed the hit Motown musical act, The Temptations.
Miss Evers Boys
The true story of the U.S. Government's 1932 Tuskegee Syphilis Experiment, in which members of a group of black test subjects were allowed to die, despite a cure having been developed.
The Jackie Robinson Story 1950
Biography of Jackie Robinson, the first black major league baseball player in the 20th century. Traces his career in the Negro Leagues and the major leagues.
The Spook Who Sat By the Door 1973
A black man plays Uncle Tom in order to gain access to CIA training, then uses that knowledge to provide tactical training to street gang members to plot a Black American Revolution.
About a loving and strong family of black sharecroppers in Louisiana in 1933, in the midst of the Great Depression, facing a serious family crisis when the husband and father, is convicted of a petty crime and sent to a prison camp.
A Woman Called Moses 1978
Based on the life of Harriet Tubman, the escaped African American slave who helped to organize the Underground Railroad, and who led dozens of African Americans from enslavement in the Southern United States to freedom in the Northern states and Canada.
The story of the life and career of the legendary rhythm and blues musician Ray Charles.
A fictionalized account of the gang war between the Italian/Jewish mafia alliance and the Black gangsters of Harlem that took place in the late 1920s and early 1930s based on real events and characters. The film concentrated on Ellsworth "Bumpy" Johnson (Laurence Fishburne), Dutch Schultz (Tim Roth), and Lucky Luciano.
The video has been deleted, trailer now shown below.
12 Black Movie Trailers to Stream or Rent
Based on historic events of the 1923 Rosewood massacre in Florida, when a racist white lynch mob killed blacks and destroyed their black community.
Based on the true story of the 1839 mutiny aboard the slave ship La Amistad, during which Mende tribesmen abducted for the slave trade managed to gain control of their captors' ship off the coast of Cuba, and the international legal battle that followed their capture by a U.S. revenue cutter. The case was ultimately resolved by the United States Supreme Court in 1841.
Roots was an American television miniseries based on Alex Haley's 1976 novel, Roots: The Saga of an American Family; the series first aired on ABC-TV in January 1977. (Goodbye Uncle Tom is another 70s Slave Movie which was virtually banned from the U.S.)
Hidden Figures is a 2016 American biographical drama film about female African-American mathematicians at NASA.
Malcolm X 1992
Malcolm X is a biographical drama about key events in Malcolm X's life: defining childhood incidents, his criminal career, his incarceration, his conversion to Islam, his ministry as a member of the Nation of Islam and his later falling out with the organization, his marriage, his pilgrimage to Mecca, and his assassination on February 21, 1965.
American Violet 2008
A single mother struggles to clear her name after being wrongly accused and arrested for dealing drugs in an impoverished town in Texas.
Based on the true story of Dido Elizabeth Belle, the mixed-race daughter of a Royal Navy Admiral is raised by her aristocratic great-uncle in 18th century England.
A Soldier's Story 1984
Not a true story, but an excellent look at the what was at stake for black people through the lens of the perceived humanity of our black soldiers.
The film is about one of the first military units of the Union Army during the American Civil War to be made up entirely of African-American men (except for its officers), as told from the point of view of Colonel Shaw, its white commanding officer.
The Cotton Club 1984
The Cotton Club was a famous night club in Harlem. The story follows the people that visited the club, those that ran it, and is peppered with the Jazz music that made it so famous. The Cotton Club was whites only but featured all black entertainment during the 1920s Harlem Renaissance.
Mississippi Burning 1988
Two FBI agents with wildly different styles arrive in Mississippi to investigate the disappearance of some civil rights activists.
The Retrieval 2013
A fatherless 13-year-old black boy, who survives by working with a white bounty hunter gang who sends him to earn the trust of runaway slaves and wanted black men.
One of the most influential figures in African American life between the two world wars was Charles Hamilton Houston. A scholar and lawyer, he dedicated his life to freeing his people from the bonds of racism. Houston played a significant role in dismantling the Jim Crow laws, which earned him the title "The Man Who Killed Jim Crow".
Charles Houston grew up in a middle-class family in Washington, D.C. His father, William Le Pre Houston, was an attorney, and his mother, Mary Hamilton Houston, a seamstress.
Houston enrolled at Amherst College in Massachusetts, where he was elected to Phi Beta Kappa and was one of six valedictorians in 1915. Determined to be a lawyer like his father, Houston taught English for a couple of years back in Washington in order to save enough money to attend Harvard Law School. Houston noticed while teaching, that blacks had not advanced meaningfully in the past 20 years and were becoming increasingly victimized by segregation in the public and private sectors.
As the U.S. entered World War I, Houston joined the then racially segregated U.S. Army as an officer and was sent to France. Houston was an artillery officer in France. He witnessed and endured the racial prejudice inflicted on black soldiers. These encounters fueled his determination to use the law as an instrument of social change.
Houston returned to the U.S. in 1919 and attended Harvard Law School. He was a member of the Harvard Law Review and graduated cum laude. Houston was also a member of Alpha Phi Alpha fraternity. He received his JD from Harvard in 1923 and that same year was awarded a Sheldon Traveling Fellowship to study at the University of Madrid. When he returned to Washington to join his father’s law firm, he began taking on civil rights cases. He was admitted to the Washington, DC bar in 1924.
Howard University School of Law: Preparing for Struggle
Mordecai Johnson, the first African-American president of Howard University, named Charles Houston to head the law school in 1929. Houston brought an ambitious vision to the school, he set out to train attorneys who would become civil rights advocates. At the time, courses were offered only part-time and in the evening. Houston created an accredited, full-time program with an intensified civil rights curriculum. In Houston's capacity as Dean, he had a direct influence on nearly one-quarter of all the black lawyers in the United States, including former student Thurgood Marshall. Houston transformed a second-rate law school into a first class institution that churned out generations of brilliant black lawyers. His determination to train world-class lawyers who would lead the fight against racial injustice gave African Americans an invaluable weapon in the civil rights struggle.
Howard Law School Course Syllabus
Houston diversified the course offerings and made sure students received more rigorous training for work in the field of civil rights.
Original HU Law School Building
Houston knew many of the foremost legal minds of his day and brought them to Howard as program advisors and speakers.
Charles Houston arguing a case in court
Houston continued to argue cases in court and work for equality in the legal community during his years as dean of Howard’s law school. When the American Bar Association refused to admit African American attorneys, he helped found the National Bar Association, an all-black organization, in 1925.
A New Legal Team at the NAACP
In 1934 Charles Houston left the Howard University School of Law to head the Legal Defense Committee of the NAACP in New York City. Seeking out bright, dedicated attorneys to join the mission, he built an interracial staff that defended victims of racial injustice. Among the lawyers recruited was Thurgood Marshall, Houston’s star student from Howard’s law school.
In July 1938 policy disagreements and health problems caused Houston to relinquish the leadership of the NAACP legal committee to Thurgood Marshall. Summing up Houston’s contribution to the struggle against segregation and racism, Marshall later remarked, “We owe it all to Charlie.”
Through his work at the NAACP, Houston played a role in nearly every civil rights case before the Supreme Court between 1930 and Brown v. Board of Education (1954). Houston's plan to attack and defeat Jim Crow segregation by demonstrating the inequality in the "separate but equal" doctrine from the Supreme Court's Plessy v. Ferguson decision as it pertained to public education in the United States was the masterstroke that brought about the landmark Brown decision. In Missouri ex rel. Gaines v. Canada (1939), Houston argued that it was unconstitutional for Missouri to exclude blacks from the state’s university law school when, under the “separate but equal” provision, no comparable facility for blacks existed within the state.
Houston’s efforts to dismantle the legal theory of “separate but equal” came to fruition after his death in 1950 with the historic Brown v. Board of Education (1954) decision, which prohibited segregation in public schools.
In the documentary "The Road to Brown", Hon. Juanita Kidd Stout described Houston's strategy,
"When he attacked the "separate but equal" theory his real thought behind it was that "All right, if you want it separate but equal, I will make it so expensive for it to be separate that you will have to abandon your separateness." And so that was the reason he started demanding equalization of salaries for teachers, equal facilities in the schools and all of that."
Houston took a movie camera across South Carolina to document the inequalities between African-American and white education.
Then, as Special Counsel to the NAACP Houston dispatched Thurgood Marshall, Oliver Hill, and other young attorneys to work to equalize teachers' salaries.Houston led a team of African-American attorneys who used similar tactics to bring to an end the exclusion of African-Americans from juries across the South.
Charles Houston was one of the most important civil rights attorneys in American history. A lawyer, in his view, was an agent for social change—“either a social engineer or a parasite on society.”
The debate over reparations in the United States began even before slavery ended in 1865.
It continues today. The overwhelming majority of academics studying the issue have supported the calls for compensating black Americans for the centuries of chattel slavery and the 100 years of lynching, mob violence and open exclusion from public and private benefits like housing, health care, voting, political office and education that occurred during the Jim Crow era.
Despite this academic support, the nation is arguably no closer to consensus on this issue than it was 150 years ago. Not surprisingly, my research has shown that the idea remains widely unpopular with white Americans and overwhelmingly supported by African-Americans.
The example of a Founding Father
The debate over reparations began not long after the country was founded.
In 1790, Benjamin Franklin committed to instruct, employ and educate the children of those he had set free from bondage. Franklin saw this as a way to “promote the public good, and the happiness of these our hitherto too much neglected fellow-creatures.”
After slavery ended, Senator Thaddeus Stevens of Pennsylvania proposed the reparations bill in 1867. It provided 40 acres of land to each adult male and to each female who was the head of a family. In addition, it called for funding to construct a homestead on the land. Stevens saw reparations as necessary to avoid racial hatred, inequality and strife.
Callie House, who was born enslaved, took up the charge in the 1890s under the auspices of the National Ex-Slave Mutual Relief, Bounty and Pension Association. She was arrested and ultimately imprisoned for her efforts in 1917. She was accused of raising money to support a cause that the government argued was so implausible as to constitute fraud. The organization had built a membership in the tens of thousands from 1897 to 1898, and continued to grow thereafter.
Scholars pick up the cause
The case for reparations for African-Americans was taken up in academic and popular circles more than 40 years ago.
Yale Law Professor Boris Bitkker gave the first significant academic treatment of the issue in his book “The Case for Black Reparations” in 1972. The book followed the public demand for US$500 million in reparations from white churches and synagogues by civil rights leader James Foreman.
In 2001, well-known anti-apartheid activist Randall Robinson published his book “The Debt: What America Owes to Blacks.” After its publication and popular success, a new group of academics began to give significant attention to the issue.
A popular movement also arose that sparked lawsuits relating to slavery and state-supported racial violence in Tulsa, Oklahoma (see Race Riots). All of the suits were dismissed by the courts, causing many to conclude that legislative action was the only possibility for redress.
The legislative approach had succeeded previously in one instance. Years earlier, the Florida legislature enacted legislation that made Florida the first and only state to provide reparations for state-supported mob violence against African-Americans during the 1923 Rosewood massacre.
A number of cities and universities began investigating their historic relationship to slavery. Several states issued apologies for slavery. The United States House of Representativesfollowed suit in 2008. The Senate joined in the following year. The 2014 article by Ta Ne-hisi Coates in The Atlantic represents a recent resurfacing of the issue.
My current research explores the commonality between the views held by the majority of American whites on this issue and the views of dominant ethnic and racial groups who oppose redress for injustices and harms inflicted in other countries.
Social hierarchy and reparations globally
Following World War II and the extermination of Roma peoples alongside Jews in death and concentration camps, the Federal Republic of Germany refused redress to the Roma at the same time it provided extensive reparations to Jewish victims.
Australia’s rejection of reparations in response to the theft of over 100,000 indigenous children over the course of 60 years under federal and state laws provides another example. Japan’s refusal to provide redress to the Korean woman forced into sexual slavery during World War II is one more.
In each case, the rejection of redress corresponds to the low social status of the victims. This reflects a phenomenon social psychologists identify as “social dominance.” It describes a state in which certain groups have a disproportionate share of a society’s “negative social value” such as incarceration, poverty and substandard housing. Others in the same society have a disproportionate share of “positive social value” including education, political power, wealth and quality housing.
Groups enjoying the benefits of social dominance often reject claims by subordinate groups, even when they are rooted in horrible and well-established historic injustices.
The reasons for rejecting these claims vary, but they ultimately flow from the perceived flawed character of the group members. Following World War II, German Chancellor Konrad Adenauer identified the Roma as a “race of criminals” who in no way deserved reparations. In Australia, former Prime Minister John Howard rejected reparations based on the idea that “contemporary Australians should not be held responsible for mistakes of the past.” An interesting position in light of the continuation of the practice into the 1970s.
In Japan, the claim was made that the issue of the “Korean comfort women” was settled at the end of the war by the agreement to end hostilities. It is worth noting that in Germany and Australia, both groups had disproportionately high incarceration and poverty rates and were broadly viewed as having cultural and moral deficits. In Japan, a similar view is illustrated by the recent remarks of a government official that the victims of the years of enslavement were actually Korean prostitutes who “volunteered.”
African-Americans fall at the bottom of America’s racial and social hierarchy. That reality has routinely and popularly been explained as a result of their inferiority. Initially the claim was rooted in genetics. Today it is based primarily on a theory of cultural deficiency.
Until these ideological bases of racial subordination are acknowledged and rejected, no “case for reparations” will convince the majority of white Americans that reparation are due African-Americans. A clear example of this can be found in the hundreds of comments to my recent New York Times editorial on the issue. The comments reflect the negative views of African-Americans held by many readers as well as an intense emotional rejection of reparations.
My proposal looks at slavery and the Jim Crow era separately. I draw the distinction to prevent the memory of the enslaved from being overshadowed by the more recent injustices of the Jim Crow era. I believe each group of victims warrants specific attention and an appropriate response.
Compensatory reparations should be limited to the harms of the Jim Crow era.
For slavery, I suggest that reparations take the form of monuments, museums, memorials and educational programs that are currently lacking in this country. One early step would be the creation of commissions at the state and local level that would identify the enslaved, their owners, and any role they played in the development of the state and its industries. This information would be used along with existing research and funded grants to develop appropriate projects to honor the enslaved and to demarcate the contributions they made.
A comparable examination should be made at the federal level to note persons of national significance. In light of the centuries-long history of slavery that took place here, we have a great deal to learn and illuminate about this aspect of our shared history.
This approach provides the focus needed on the lives of the enslaved, their humanity, and their indispensable contribution to America’s growth and development. At the same time, the proposal attends to the survivors of the governmental abuses inflicted over the course of 100 years following slavery’s end who remain without recognition or redress.
Professor Carlton Waterhouse has served at the Indiana University Robert H. McKinney School of Law since 2010. He is nationally recognized for his work on environmental justice and is known internationally for his research and writing on reparations for historic injustices and state human rights violations. His views have been published in the Wall Street Journal online and his articles have appeared in prestigious law journals including the Pennsylvania Journal of International Law, the Fordham Environmental Law Review, and the Rutgers Law Review. He attended college at the Pennsylvania State University where he studied engineering and the ethics of technology before deciding to pursue a legal education. He is a graduate of Howard University School of Law, where he was admitted as one of its distinctive Merit Fellows. While in law school, he was selected for an internship with the Lawyers’ Committee for Civil Rights Under Law where he participated in the preliminary formation and development of the Civil Rights Act of 1992. Professor Waterhouse currently serves as a member of the Indiana Advisory Committee to the United States Civil Rights Commission
After law school, he began his career as an attorney with the United States Environmental Protection Agency where he served in the Office of Regional Counsel in Atlanta, Georgia and the Office of General Counsel in Washington, D.C. At the EPA, he served as the chief counsel for the agency in several significant cases and as a national and regional expert on environmental justice, earning three of the Agency’s prestigious national awards. His responsibilities at the EPA included enforcement actions under numerous environmental statutes, the development of regional and national policy on Environmental Justice and the application of the Title VI of the Civil Rights Act of 1964 to the EPA permitting actions. Following a successful nine-year career with the EPA, Professor Waterhouse enrolled in a Ph.D. program in the Emory University Graduate School of Arts and Sciences as one of the select George W. Woodruff Fellows. The previous year, he graduated with honors from the Candler School of Theology at Emory University with a Master of Theological Studies degree. In 2006, he graduated from Emory with a Ph.D. in Social Ethics.