Bias and the death penalty

January 24, 2012 | Jocelyn Wolf | Tags: ,

The bias and discrimination that exists in our society is rampant in our criminal justice system. So says Michelle Alexander in her newly released book, The New Jim Crow: Mass Incarceration in the Age of Colorblindness. The book details how today it is legal to discriminate against convicted criminals in nearly all the ways that it was previously legal to discriminate against African Americans. It argues that incarceration has become the newest form of racial control.

As a part of the criminal justice system, death penalty sentencing is also biased. While there are persistent difficulties with finding data related to bias, partly due to the nature of bias and insufficient data collection, there are studies and cases that point to the nearly arbitrary nature of sentencing.

One relevant study, “The Impact of Legally Inappropriate Factors on Death Sentencing for California Homicides, 1990-1999″ (46 Santa Clara L. Rev. (2005)), is a state-wide study on the role of race, ethnicity and geography in death sentencing in California. The authors, Glenn Pierce and Michael Radelet, reviewed all homicides that occurred in California from 1990-99, using records from the FBI and Vital Statistics. They conclude that the race and ethnicity of the victim and the location of the crime play a critical role in determining who will be sentenced to death.

Key findings of the study include:

  • While 27.6% of murder victims are white, 80% of executions in California have been for those convicted of killing whites.
  • Those who murder whites are over three times more likely to be sentenced to death than those who kill African-Americans and over four times more likely to be sentenced to death than those who kill Latinos.
  • Death sentence rates vary substantially from county to county in California and this variation cannot be explained simply based on homicide rates. A person convicted of 1st degree murder in a predominantly white, rural county is more than three times as likely to be sentenced to death than a person convicted of a similar crime in a diverse, urban county.

This year, anti-death penalty groups in California will attempt to abolish the death penalty in part due to the erratic nature of death sentencing. The Savings, Accountability and Full Enforcement for California Act, or SAFE California Act, would abolish the death penalty, causing prisoners currently sentenced to death to have their sentences commuted to life without the possibility of parole. These prisoners and future prisoners sentenced to life without parole would be required to work and make restitution to the Victims’ Services fund. In addition, the SAFE California Act would create a SAFE California Fund to fund police departments, sheriffs and district attorney offices, in order to increase the rate at which homicide and rape cases may be solved. Organizers must collect 504,000 valid voter signatures by the March 18th deadline to qualify the initiative for the election.

Public Comment on US EPA’s Model Civil Rights Program Open until February 17, 2012

January 24, 2012 | colinbailey |

In April 2011, U.S. EPA Administrator Lisa P. Jackson, whose blog you can follow here, formed a Civil Rights Executive Committee to review an independent report, authored by the firm, Deloitte Consulting, LLP, and provide recommendations for strengthening EPA’s civil rights program.  The Deloitte Report identified, among others, the following shortcomings in the EPA’s administration of its Title VI external discrimination complaints and compliance program:

  1. “Due to this complexity, the Title VI program has struggled to develop a consistent framework to analyze complaints [of discrimination], resulting in a lengthy and time-consuming effort to evaluate the complaints and once accepted, to adequately investigate the cases.”  See, Deloitte Report, at pg. 25.
  2. “EPA has not been able to develop a repeatable complaint resolution process and framework” such that the “[Office of Civil Rights] lacks finalized operational documents to govern the program’s internal functions, or to communicate meaningful guidance to external stakeholders.”  See, Deloitte Report, at pg. 25.
  3. EPA’s Office of Civil Rights “program staff’s competencies are inconsistent and/or misaligned with the highly technical nature of complex Title VI complaints investigations.”  See, Deloitte Report, at pg. 26.

The recommendations in the Deloitte Report prompted EPA to draft its own Recommendations for Developing a Model Civil Rights Program at the Environmental Protection Agency.  EPA’s proposed recommendations for improving it’s Title VI complaint and compliance program can be found at pp. 12-13 of the draft recommendations.  The Model Civil Rights Program is Attachment 2 to the draft recommendations.  Those recommendations are now available for public review and comment.

Environmental Justice advocates have, for the first time in a long time, an opportunity to contribute to a meaningful internal review and restructuring of the way in which U.S. EPA administers its non-discrimination programs and enforces non-discrimination laws.  Your comments may be sent to Administrator Jackson at jackson.lisap@epa.gov and are due by February 17, 2012.  Let your voice be heard!

Study shows majority of States fail to teach the civil rights movement

January 20, 2012 | Lauren Hansen | Tags: ,

The Southern Poverty Law Center (SPLC) recently released a study called “Teaching the Movement:  the State of Civil Rights Education 2011” that suggests the majority of States are not adequately teaching the civil rights movement to children.

The study compared the state standard requirements to a body of knowledge that reflects what civil rights historians and educators consider core information about the civil rights movement.

Researchers concluded that states are failing to set high expectations for student learning about the civil rights movement.  States’ curricula on the movement tend to be about leaders and events, but are less likely to include information about the obstacles that civil rights activists faced, like racism and white resistance.

Researchers gave a grade to each state indicating how that state performed in teaching civil rights.  35 states received a grade of “F.” 16 states have no requirements for teaching the movement.  Only three states received an A:  Alabama, Florida, and New York.  The study found that less attention is paid to the movement in states farther away from the South.

SPLC suggests that learning about the civil rights movement educates children “about the possibilities of civic engagement while warning…about the kinds of resistance that stand[s] in the way of change.”  The study also states that teaching about the movement “helps minority students to find themselves in history classes that are often alienating and confusing.”

This study is part of Teaching Tolerance, a project of the Southern Poverty Law Center.  Teaching Tolerance is a program designed to reduce prejudice, improve intergroup relations and support equitable school experiences for children.

 

Health care equality, it’s more than law

January 18, 2012 | Leon Dixson | Tags: ,

According to an American Cancer Society report cited by The New York Times, disparities in survival rates among Caucasians and African-Americans with colon cancer increase at each stage of the disease.  This is notwithstanding advances in screening, diagnosis, and treatment of the disease.

Doctor John Kauh, an oncologist at Grady Memorial Hospital, notes in the Times article that part of the problem is deficient early screening, particularly among low-income and African-American patients.  He observes that this is sometimes due to a lack of health insurance or social and family support.

Recent news articles indicate that the Affordable Care Act provides greater access to health care for millions of Americans.  However, it appears that something more than a new law is needed to bridge the gap.

Doctor Kauh noted that “many hospitals do not accept patients who cannot pay for care or who have public insurance, and those who do are overburdened with sick, needy patients.”  The doctor proposed the use of more “patient navigators” at the “community level and the hospital level to promote easy access and navigation to proper care.”

The Los Angeles Times highlights America Bracho of the Latino Health Access, who works at the community level training community workers to teach their neighbors and friends how to be healthier.

These articles strongly indicate that equality in health care requires a combination of improved legal access and social support.

Digital divide draws lines by color, class, geography

December 21, 2011 | Marina Sideris | Tags: ,

A recent piece from Colorlines highlights the digital divide between those with access to broadband internet and those navigating the internet from mobile devices such as smartphones.  This divide is increasingly separating internet users along race, class, and geographic lines.  Moreover, as Colorlines points out, differential regulatory treatment between the two types of access may create a second-class internet for cell phone users.

Cell phones are a vastly more affordable way to access the internet than broadband access through a computer–and sometimes, broadband access is simply unavailable.  Quite possibly as a result of the relative affordability of cell phone access, the number of people of color adopting smartphones is growing faster than their white counterparts.  Moreover, people of color rely more heavily on cell phone-based web access.  Colorlines reports that 18% of blacks and 16% of Latinos now use cell phones as their exclusive means of internet access, as compared to just 10% of whites.  At the same time, while 33% of whites use their phones to surf the web, 51% of Latinos and 46% of blacks do.

Rural households are disproportionately affected by the digital divide, too.  According to the FCC, at least 20 million people in the U.S. lack access to broadband internet–and 73% of those reside in rural America.  For all Americans, access to the internet is about much more than surfing the web: people now rely on the internet to pay bills, renew driver’s licenses, apply for jobs, unemployment insurance, or food stamps, and engage in the political and electoral processes.   Rural households may have unique needs for internet access, such as to connect to health care providers who maintain offices a great distance away.  (The FCC has acknowledged this need through its pilot Universal Services Program for Rural Health Care Providers, designed to help defray the heightened costs of installing broadband internet in rural and remote areas.)

So, why is cell phone-based internet service inferior to broadband?  The FCC names a few reasons, including that broadband allows more content to be transmitted, enables high-quality internet features that are incompatible with dial-up service, and is always “on” and does not block a phone line.  Colorlines highlights an additional reason: while recent “net neutrality” legislation regulates companies when they are providing broadband access, it does not regulate those providing access via mobile devices.  This means that, while telecommunications companies cannot prioritize what information travels faster or slower over their broadband connections, there are no such restrictions on how companies control access to or passage of information over cell phone-based internet service.

Without equivalent net neutrality for cell-phone based internet service, Colorlines suggests we may well see the emergence of a second-class internet for people of color, poor people, rural households and others who lack access to broadband.

  • Comments Off

HUD proposes discriminatory effect rule

December 12, 2011 | Jocelyn Wolf | Tags: ,

The Department of Housing and Urban Development (HUD), which administers the federal Fair Housing Act (FHA), has proposed a new rule: Implementation of the Fair Housing Act’s Discriminatory Effects Standard. This rule is intended to make clear that the standard to be used in implementing the Fair Housing Act’s prohibition on housing discrimination on the basis of race, color, religion, sex, disability, familial status, or national origin includes discrimination with or without discriminatory intent. HUD’s proposed rule recognizes that the FHA includes discriminatory effect as a basis for liability.

While HUD and most circuit courts have used the discriminatory effects standard in deciding FHA cases, the circuits have differed in their application of the standard.  A primary example is the differences among the circuits with respect to how the burden-of-proof shifts between the parties.  The proposed rule is intended to create uniform standards.

The proposed standard will mirror the discriminatory effects standard used to determine cases under Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e), which prohibits discriminatory employment practices.  This is consistent with what HUD has done historically in interpreting other provisions in the Fair Housing Act that are analogous to provisions in Title VII.

Comments on the proposed rule are due on January 17, 2012.   Those interested in commenting are strongly urged to contact Meliah Schultzman of the National Housing Law Project at mschultzman@nhlp.org.  Ms. Schultzman is coordinating with other civil rights and fair housing advocates with expertise in the subject matter.

The large part of the proposed rule reads as follows:

Subpart G—Discriminatory Effect
§ 100.500 Discriminatory Effect Prohibited
Liability may be established under this subpart based on a housing practice’s discriminatory effect, as defined in § 100.500(a), even if the housing practice is not motivated by a prohibited intent. The housing practice may still be lawful if supported by a legally sufficient justification, as defined in § 100.500(b). The burdens of proof for establishing a violation under this subpart are set forth in § 100.500(c).
(a) Discriminatory effect defined. A housing practice has a discriminatory effect where it actually or predictably:
(1) Results in a disparate impact on a group of persons on the basis of race, color, religion, sex, handicap, familial status, or national origin; or
(2) Has the effect of creating, perpetuating, or increasing segregated housing patterns on the basis of race, color, religion, sex, handicap, familial status, or national origin.
(b) Legally sufficient justification. A legally sufficient justification exists where the challenged housing practice:
(1) Has a necessary and manifest relationship to one or more legitimate, nondiscriminatory interests of the respondent, with respect to claims brought under 42 U.S.C. 3610, or defendant, with respect to claims brought under 42 U.S.C. 3613 or 3614; and (2) those interests cannot be served by another practice that has a less discriminatory effect. The burdens of proof for establishing each of the two elements of a legally sufficient justification are set forth in § 100.500(c)(2)–(c)(3).
(c) Burdens of proof in discriminatory effects cases.
(1) A complainant, with respect to claims brought under 42 U.S.C. 3610, or a plaintiff, with respect to claims brought under 42 U.S.C. 3613 or 3614, has the burden of proving that a challenged practice causes a discriminatory effect.
(2) Once a complainant or plaintiff satisfies the burden of proof set forth in paragraph (c)(1) of this section, the respondent or defendant has the burden of proving that the challenged practice has a necessary and manifest relationship to one or more legitimate, nondiscriminatory interests of the respondent or defendant.
(3) If the respondent or defendant satisfies the burden of proof set forth in paragraph (c)(2) of this section, the complainant or plaintiff may still prevail upon demonstrating that the legitimate, nondiscriminatory interests supporting the challenged practice can be served by another practice that has a less discriminatory effect.
(d) Relationship to discriminatory intent. A demonstration that a housing practice is supported by a legally sufficient justification, as defined in § 100.500(b), may not be used as a defense against a claim of intentional discrimination.

 

  • Comments Off

Older Posts