The Brown v. Board Files....

“The Whole United States is Southern!”: Brown v. Board and The Mystification of Race

By Charles M. Payne

Payne’s article on the “mystification of race” shows how the term segregation and the philosophies that go along with it were used in a way to skew the pubilc perceptions of race and equality, and how power of those convictions alone were enough to detract from the importance of Brown v. Board, and even garnish great animosity of indifference towards it from both the white and black communities in the United States.
This article really demonstrated how complex the issues of race have been in this country, and how they have persisted like no other point in history. Slavery is nothing new. It existed for thousands of years, usually as the result of one nation or people conquering another. Basically, you lost, so now our slaves. But when it comes to slavery in the United States, in the 1800s, things were different. We linked slavery with ideas of race and inferiority, an way of thinking that became socially infused within our nation’s people
The effects of this way of thinking was so strong, that as Payne brings up on page 87, some argued that the civil war was an ideological victory for the Confederacy. As far their ideas concerning race and equality, they were right. Our social institutions and values taught led us to believe that blacks were inferior, which is why they were slaves, which was an entirely way of thinking when it came to race. Before that, it was rarely recognized in such a way, but as I said before these feelings of hatred or white superiority led to belief in segregation, which many were quick to support because of their beliefs about race. And those feelings continued to endured, even after the passing of Brown v. Board, as is demonstrated in this paper, and throughout our history. And obviously, those feelings that developed out of these initial ideas of race still linger, and at this point its really an issue that time will solve

Brown v. Board of Education and The Interest-Convergence Dilemna
By Derrick A. Bell Jr.

Bell’s article focused largely on the true interests of the Board v. Brown decision, and discusses Herbert Weischler’s theory that the decision was reached based on principles that were anything but neutral. I struggled at first to see this point, but it readily became clear as I read on.
It’s amazing to see how the decisions we often believe to be truly noble, are not actually made without other interests in mind. There were a number of positive outcomes that were argued to possible result from desegregation, much how there were a number of reasons that Lincoln decided to fight the American Civil War. Enabling blacks with equal rights was certainly a goal of the legislation, as was the abolition of slavery during the Civil War, but other reasons certainly came into play
It was these other factors that I found to be intriguing in Bell’s piece, particularly the argument that desegregation would improve U.S. relations with people all over the world. The world view of the U.S. would therefore be greatly improved, which obviously is important as foreign affairs always seem to be an issue this nation struggles with. However, I had never really thought about the international significance that result from Brown v. Board, yet the idea makes sense, as do the arguments that the perceptions of American blacks in the public eye would improve, as well as the claim that desgration would lead to further industrialization in the South.
I guess that when it comes to cases such as this, we sometimes take for granted the idea that the decision was reached purely on a moral basis of right and wrong, rather than the fact the a lot of different issues were raised and considered when it came to determining the benefits. Lincoln also fought the war because he believed in preserving the Union, and in the end, ending slavery proved to be necessary to complete that goal. The same could be said for a number of issues raised in Brown. V. Board.

Harsh on blacks? Or violent crime?

The Sentencing Decisions of Black and White Judges:

Expected and Unexpected Similarities

By Cassia Spohn

This article essentially focuses on the sentencing habits and discrepancies that may occur between black and white judges in Detroit, and how they may treat black and white offenders differently when it comes to sentencing them to prison. The study involved black judges sentencing 1,819 offenders, while white judges doled out 2,891 sentences for incarceration.

What surprised me about theis article was the great lengths of detail that went into the methods bethind the study that was conducted. The researchers attempted to account of every single possible varible that would clutter their study, and in the end the article simply became very narrow-sighted, simply asking the question: do black and white judges pose significantly different sentences when it comes to black offenders. The short answer is no, both judges adjudicate cases similarly, and more likely to sentence blacks offenders to prison over white offenders. Like most academic articles I've read thus far, I found the process and the findings intersting, but felt somewhat disappointed, as if I hadn't received a complete answer.

This was likely due to the fact that becuase the study was so narrow and address only specific cases (violent offenses) there wasn't much leeway to see whether or not disciminatory sentences may occur. It also seems that these studies seem to leave us needing more answers: "Although the data reveal that both black and white judges sentence more harshly than white offenders, the data do not tell us WHY this occurs. Further research should address this issue. " I understand that no answer is ultimate, but man, sometimes it almost gets us asking, well, than whats the point?

I do appreciate the fact that the author then attempted to explain why harsh sentences may be imposed on the defendants, for reasons such as preventing black on black violence, the seriousness of the crimes committed, and considering the high enemployment rate of blacks in Detroit coupled with the probability that they might offend again. Yet, they precede this analysis with, "This significant finding contradicts the widely held assumpion that blacks do not descriminate against other blacks." But didn't they go on to say...well, this study seems to be a bit contradictory as well, and it may not be discimination.

I also feel that the fact that about 85% of the offenders in the stury were black was downplaye to an extent, but I suppose their disporportionate represntation is another issue. When it comes to the validity of this study, I still think the focus was too narrow, and that harsh sentences weren't given out due to race, but were more likely due to the violent nature of the offense. I think the study may have more accutrately examined the conflict by examined less serious cases (as was done in another study menioned in this piece) where overly harsh sentences can be more easily identified when there is overt discrimination and or racism. They also left out all the cases that were dismissed. What if there was data there that could hasve indicated the leniency of black judges? Because once someone is determined guilty by the law, there is usually a set sentence to follow.

That's my main critique of this article, that is seemingly set itself up for a certain answer with too narrow a focus, because who's going to be lenient on serious, violent crime? Not many people.

So we got the facts...now what?

Are Twelve Heads Better than One?

By Phoebe C. Ellsworth

I actually found this article to a rather intriguing and eye-opening study. Essentially, Ellsworth conducted a study of a mock trial using a random sampling of people from California. After watching a video-taped reinactment of a criminal trial, the participants were divided in 18 juries and asked to deliberate for one hour in an attempt to reach a verdict (which was not expected). The point of the study was to record the jury deliberations in order to see how much jury members understand about the law when it comes to discussing the facts of the case.

The results were interesting, and not all that surprising. In general juries did a fine job of understanding the facts of the case, and were able to accurately discuss them in order formulate opinions of the trial. Yet it was somewhat upsetting to see how little people truly understood the essence of the law when it came to applying the judge's instructions, yet this is understandable because people are generally ignorant of the law. Just one of last week's articles easily demonstrates this - Seron's article about providing legal representation to impoverished tenants in NYC. Simply having someone with legal knowledge present immediately increase the efficiency of their cases and, if I remember correctly, doubled the rate at which cases were determined in their favor.

Essentially, we are now taking those people who know very little about the law and are asking them to render a legally sound verdict. That's very hard to do, and unsurprisingly, the juries struggled in this study to do it. It's amazing and that juries are often given these legal instructions when discussing a case, and much of the time have no interpretation of those instructions, nor any way of even remembering them. By serving on a jury, each member is already having a great deal of neew information thrown at them in a very short time, and honesetly it's surpring they do as well with the facts as they do. But in general, they have very little help when it comes to the legal issues they must confront, and that really represents a problem within the legal system. Furthermore, it's upsetting that the judge's intructions may actually hinder the deliberation process (i.e. "We can't speculate about what the defendent was thinking or what he wasn't thinking.")

And though I know the law is very difficult to understand without a degree or at least some type of legal education, I was actually surprised by some of the things coming out of the juror's mouths -"Yeah that's right. Self-defense would be manslaughter," or "If you kill your girlfriend, it's manslaughter." Neither of those phrases really makes any sense, and just goes to show how little we commong folk understand the law. Though it's interesting to note in the introduction how juries are often picked by the defense becase they are not the best and the brightest, rather the ideal jury is more common and less educated than some of the potential jurors who pass through.

So, are 12 heads better than one? One might think so, but that does not appear to be the case at all when it comes to interpretating the law, because clearly only one of those 13 heads has the education to properly do so.

Can't we bargain pleas?

A Wake-Up Call from the Plea-Bargaining Trenches

By Stephen J. Schulhofer

Schulhofer's article proved to be a quick, interesting read. Essentially, he critiques much of the current work regarding studies on the effects of plea-bargaining on the justice system, and effectively dismisses the claims by those in favor of preserving the present system. He then follows his critique with a couple suggestions about ways in which we could alter the present system for the better: either by setting a fixed deal system, in which plea bargains do not differentiate on a case-by-case basis, or by abolishing the system entirely.

I found Schulhofer's work to be quite insightful, because, in my opinion, the way in which we use plea-bargains, especially when it comes to crime cases, it completely circumvents the justice process. The facts are not hear, due process is not met, and both the prosecution and defense attorney's use bargaining as a means to better themselves. Prosecutors can offer a deal in case which they may not win at trial to improve their own record, and defense attorneys are paid a flat fee and are often overloaded with cases, so there is almost no incentive to go through a long and lengthy trial. In either case, there is no justice, and both sides actually work together in order to prevent justice by offering too lenient, or too harsh sentences.

However, I don't entirely agree with Schulhofer's conclusion that plea-bargaining should be completely abolished. I just don't think it can happen within the system because it is too deeply entrenched. Sometimes a bargain can be appropriate, but more often than not, we are too quick to use it to the point that it abuses everything we know about law and order. I do actually agree with the author's point about the trials themselves, especially when comparing trials by jury vs. those that appear simply before the bench. In reality, it is not truly the trial process that ties up our legal resources, but the selection of the jury, and their deliberation, amongst many other things that actually take more time. In reality, if more cases were determined by justice rather than juries, we could exponentially speed up the trial process, without using additional resources, while at the same time decreasing the use of plea bargaining.

Furthermore, I think more needs to be done to encourage our defense attorneys to take more cases to trial instead of jumping to accept the plea. WE NEED more public defenders - we need to give them more incentives to work other than processing as many cases as possible. That's where change really needs to take place. Combine this idea with Shulhofer's and I think we may seem a vast improvement within the Justice system. Take the money used to find and interview and build juries for trials and give it to the defense attorneys so they can argue there cases before a a judge, or before the bench.

Legal representation is good? No way...

The Impact of Legal Counsel on Outcomes for Poor Tenants
in New York City's Housing Court: Results of a Randomized Experiment

By Carroll Seron et. al.

In case you couldn't tell, that was a bit of sarcasm there in the title. Of course legal representation is good when you have to go to court. Essentially, this study researched the legal outcomes of two groups of low-income tenants living in NYC. The control group had little or no representation, while the treatment group were assisted by The Pro Bono Project against Homelessness, and more than 56% of the clients received legal representation in court.

According to the study's conclusion and discussion, those clients who received representation were a lot more successful in their court appearances than the control group. The treatment group had about 32% of their cases make judgements against them, while the control group had 52% of their court appearances swing in the landlord's favor.

Considering what we have discussed thus far, this does not surprise me. We know that the legal system is a game, a competition that requires the knowledge and know-how of a professional. Of course those that have representation are going to fair better and not be taken advantage of as easily.

The article largely reminded of the struggle between the RPs and OSs that we have encountered time and time again in our studies. For example, most landlords, who usually have more knowledge of the law, have representation nearly 95% of the time, while poor tenants do not, and usually have legal aid only 5% on the time. The difference in power between the two groups is honestly frightening, and largely exemplifies the problems within our legal system that this study was trying to address.

When it comes to encounters with the law, legal know-how and representation are actually very, very important. I keep bringing this up because it's the most recent example in my mind, but in the fall I had to meet with the city prosecutor regarding a violation of the local noise ordinance. My roommate and I had both received citations, yet I met with the prosecutor on our behalf to discuss our options. When I told him this, he asked me, "are you representing your roommate?" I thought this was a weird question, since I was there on his behalf I guess, but I said yes. Apparently, this was not the answer I should have given.

Even though I was sort of representing him in my mind, there is a very different definition of representation in the eyes of the law, in which I was appearing for my roommate in legal terms. My understanding of the term was very different from that of the law, and I was immediately informed about this. This is just a simple example of how easily ignorance of the law could lead to trouble, and eventually a ruling against you.