On Sunday, thousands of men will gather at Temple University’s Liacouras Center as part of the new “10,000 Men” initiative. The program, offered in response to Philadelphia’s rising homicide rate, will train a predominately African American group of men as “Peacemakers” who will enter “designated communities and deter unwanted and illegal behavior.”

In many ways, I am encouraged by the renewed commitment to protecting our own communities. As opposed to Mayor John Street’s “Safe Streets” initiative, which attempted to transform the ‘hood into a de facto police state, 10,000 Men wisely recognizes the benefits of community involvement. In addition to offering us a much-needed dose of responsibility, the initiative provides a tangible alternative to armchair activism and sideline complaining. After all, how can we complain about senseless violence and police incompetence if we are unwilling to come up with a reasonable alternative?

The problem is that this strategy is far from reasonable.

If we’ve learned nothing from the historic Million Man March –where African American men became the first group of people to launch a protest march against themselves– we found out that the government and mainstream Americans will never stop large numbers of Negroes from confessing their collective sins in full public view. The problem is that, instead of inspiring policymakers to support our efforts, such actions reinforce the absurd notion that violence and poverty can be eliminated by embracing a gospel of individual responsibility. In this case, by agreeing to “take back our neighborhoods” we concede the point that we lost them solely due to our own personal failings.

The last time I checked, joblessness and crack had something to do with it too.

Rather than demanding higher wages, better schools, and stricter gun laws, the current plan absolves the government of its responsibility to protect our most vulnerable  citizens. For example, even if we are to accept the quixotic idea that ten thousand unarmed civilians can make peace within inner-city war zones, couldn’t we expect even greater results from ten thousand trained officers? Unfortunately, the current initiative makes no such demands from the State.

Of course, this doesn’t have to be an either-or proposition. There is no reason why African American men (and women!) cannot take control of their communities and fight for social justice at the same time. Unfortunately, I have yet to hear how breeding newschool Guardian Angels will produce political education, protest, or even voter registration. Until we focus on these and other issues, even ten million men won’t help us.

Yale Law Professor Riva Siegel found that “[s]tatistics on arrests and convictions for wife beating in the late nineteenth century suggest that while criminal assault law was enforced against wife beaters only sporadically, it was most often enforced against immigrants and African-American men.”  In the North, Irish and German immigrants were subjected to the whipping post and in the South almost exclusively Black men were targeted.  In a similar fashion, four cases are now before the International Criminal Court (ICC) and all of them are from the continent of Africa.  Uganda, Democratic Republic of the Congo, and Central African Republic have been publicly referred to the Prosecutor of the ICC and the UN Security Council has referred the situation in Darfur, Sudan.  Were only immigrants and Blacks beating their wives?  Are the world’s most serious crimes only committed on the continent of Africa?  Are only the weak vulnerable to justice while the strong escape its suffocating grasp?

My position is that society must punish men who beat their wives just as the international community must punish rouge dictators who perpetrate grave injustices against their people.  There is no question in my mind about this.  There is a problem, however, when the powerful are impervious to justice. 

Post-reconstruction, immigrants and Blacks were not the only men to beat their wives just as African dictators are not the only ones committing crimes against humanity.  The Russian government’s actions in Chechnya and America’s war of aggression in Iraq based on weapons of mass destruction that never materialized are arguably significant crimes against humanity.  The ICC must prosecute African dictators as well as other perpetrators of mass injustices; but military and economic power protect countries like America and Russia.  That is, the powerful are impervious to justice. 

First, when the powerful are not held accountable this creates two classes of people (the powerful and the weak) each subject to a different set of rules.  Consequently, the pursuit of justice done in an uneven handed manner can undermine the pursuit of another venerated ideal---equality.  Second, the victims of the powerful are especially vulnerable to injustice.  This includes the white women who were subject to domestic violence post reconstruction, the people of Chechnya who are oppressed by the Russian government and the people of Iraq who are victims of an unjust war.  Third, the uneven administration of justice transforms perpetrators of injustice into victims of injustice.  In the case of the ICC, the conversation among international scholars has focused on the injustice of the ICC only prosecuting African dictators rather than on the magnitude of the injustices committed by the dictators.

In your view, what are the consequences when the powerful are impervious to justice?

Black folks love a good fight. Ali versus Foreman. The fight for divestment. The fight against genocide in Darfur. And perhaps the greatest battle of all time: the fight to force America to live up to her promise of equality and justice. And now, it seems that some of us are fighting to keep Ron Isley out of prison.

Seems like a pretty cut and dry case, right? Not quite. According to his fans the 64-year-old Isley is in very poor health and is battling numerous illnesses including cancer and diabetes.  As a result, fans have circulated an online petition demanding that President Bush grant Isley a pardon to keep him out of prison. Uhh, good luck with that. Maybe if Isley had a more endearing nickname like “Scooter,” President Bush would consider a pardon. In spite of the odds over 6,000 fans have signed the petition with significant support from “the voice of Black America”: the Tom Joyner Morning Show.

Certainly I take Isley’s health concerns seriously and I definitely don’t view him as a threat or menace to society. My academic work reflects my critique of this country’s flawed criminal justice system (I’ll definitely blog about some of these critiques later this month). However, in light of the numerous cases of wrongful convictions, absurd applications of mandatory-minimum sentences, etc, I’m having a difficult time choosing Ron Isley’s plight as the latest cause I’m willing to fight for.

Every time I think about contacting the Congressional Black Caucus or the White House on Isley’s behalf I end up writing about Genarlow Wilson’s appeal instead. Ron Isley is definitely a legendary musician who has created an influential catalog of hits. However, I’m more moved by the plight of a young man who went from being a heavily recruited high school athlete to Georgia Inmate #1187055 because of a consensual sexual act with another teenager. More about Wilson in another entry.

I’m glad that Isley’s fans are willing to “fight the power” and more importantly that they’re willing to fight a fractured system that has produced one of this country’s greatest arenas of racial imbalance. As the latest figures from The Sentencing Project suggest, there are 2 million people behind bars in this country of which nearly 60% are people of color. We certainly don’t need to add Isley to that figure but we also need to remove Wilson and others from it.

Just as naysayers criticize Obama’s presidential bid as an illusive quest, I’m sure I’m not the only one saying the same about Isley’s quest for a presidential pardon. So don't expect to see my name on any Isley petitions and the White House phone bank won't be receiving a call from me on Isley's behalf. But hey, who am I to judge. Anything’s possible in America, right?

     These multi-party sexual encounters raise a number of questions that force us to re-evaluate the idea of consent in rape cases.  These types of activities, sometimes involve women who get raped in the same night that they consented to sexual intercourse with multi-partners.  For the most part, we think of the concept of rape as an “all or nothing” granting or not granting of consent.  How then should we legally make sense of situations involving women, who, engaged in multi-partner sexual activities, consent to touching by some partners but not by the others?  How should we measure consent in these contexts?  How do we prevent society’s biases and stereotypes from influencing the outcome of these types of cases?

     As we have seen in past rape cases, a jury’s application of the reasonable doubt standard in rape cases can be affected by its perception of the victim’s character as well as its assessment of the circumstances surrounding the occurrence of the rape.  This perception can be detrimental to rape victims who do not fit the profile of what a jury might consider as “careful” women or “traditional rape victims”.  In the absence of force or conclusive DNA evidence, the likelihood of these women’s rapists being convicted is currently not very high.  Consequently, our task for the future will be to construct a burden of proof which does not penalize the behavior of these non-traditional rape victims and, which, simultaneously, does not unduly prejudice potentially innocent defendants.           

    The Duke Rape allegations are instrumental in analyzing the role that race and gender play in the handling of rape cases.  It is a great case study because it shows how catalysts like rape allegations can cause dormant racial/gender wounds to erupt to the surface in an already polarized community. The racial dichotomy and rivalry existing between North Carolina Central University (NCCU) and Duke University became apparent in the types of comments made, at the time of the investigation, by students from North Carolina Central University as compared to comments made by Duke University students.  For example, during the investigation, a student from NCCU was quoted as saying: “If it was a Duke Student and it was Central’s football’s team, the situation would have been handled totally differently (http://www.cbsnews.com/stories/2006/04/05/national/main1476021.shtml) while a Duke University Student stated, in the same spirit, “that the allegations … put a new strain on the already delicate relationship between the school and the community in Durham” (http://www.cbsnews.com/stories/2006/04/05/national/main1476021.shtml) Almost immediately after the rape allegations were made, it became evident from student comments submitted to the media, that for the Durham community, the rape allegations represented not just one isolated incident, but a culmination of slights and abuses of privilege that the community hoped would finally be punished.  The very fact that a team of 43 young Lacrosse players considered the hiring of two African American strippers as an acceptable form of sexual entertainment corroborated this feeling of exasperation.  It is also interesting that, in the midst of the mass obsession with the culpability or non-culpability of the three players, no one took the time to ask the obvious question: Why did the Duke administration offer no remonstrance against the Duke Lacrosse team for hiring black strippers at a team’s party?

The disparity in federal punishment between crack and powder cocaine is thus breathtaking both in quantity and quality.  Even assuming that crack is more addictive -- and thus more harmful -- than powder, there isn't an empirical justification for a 100:1 differential.  And the disparity is even more faulty given that it equates crack possession with powder distribution.  Taken together, the disparity suggests that the sale of large quantities of powder to untold numbers of buyers cause equivalent social harms as the possession, by one person, of crack.  This discrimination cannot be justified -- even if one cannot definitively establish a racial motivation for it -- and it should therefore be found unconstitutional.

That said, I wouldn't hold my breath for a favorable decision from this Supreme Court.

UPDATE:  As Big Man on Campus pointed out in a comment, I mis-stated the issue before the Supreme Court.  It is not, as I initially thought after seeing the docket entry on SCOTUS blog, whether the disparity violates equal protection.  The issue is whether a federal judge may depart from the sentencing guidelines based on a policy disagreement with the disparity.  That issue implicates the justifiability of the disparity so my thoughts remain relevant in that regard.  But the precise issue before the court is not a direct consideration of the disparity's legality.  And it seems, in this context, even more doubtful the Supreme Court will issue a ruling that undermines the disparity.  It would subvert one of the principal purposes of the Guidelines -- uniformity in sentencing -- if judges could depart from the sentencing standards simply on the basis of a policy disagreement. 

The reality is that “stop snitchin” is not, as the media and many law enforcement spokespersons have made it out to be – a peculiarly urban (read: black) drug gang pathology.  Nor is it new.  It’s an enforcement mechanism used by any group that holds power illegitimately and that fears the loss of its power. In the criminal realm, the Mafia (read: white organized crime) violently imposed a form of stop snitchin’ for decades.  But governmental agencies and administrations can also enforce “stop snitching” codes.  They do it by retaliating against snitchers – or “whistleblowers.” The outing of undercover CIA operative Valerie Plame to punish her husband for revealing that the Bush Administration’s claims about alleged Iraqi efforts to purchase uranium from Niger were false, was a form of “stop snitchin’” retaliation.  Outing Plame also served as a message to other would-be whistleblowers.

Salon columnist Jeff Yang did this column recently which referenced the Iowa massacres as well. 

What makes this problem more insidious is that men can go into prison for three the five years and come out with problems ranging from mental illness to practicing homosexual acts, yet do not acknowledged the situational sex that occurs in prison as being. Some state prison systems attempt to avoid this by allowing conjugal visits. In Mississippi only legal marriages are acceptable for conjugal visit privileges. Inmates can qualify for conjugal visits are those that at minimum custody levels and display good behavior. Inmates that may transmit sexually transmitted disease are not eligible for conjugal visits. Visits are normally an hour long and come with soap, condoms, sheets, pillowcase and towels. The inmate and spouse are searched before and after each visit for security reasons. The Federal Bureau of Prisons does not permit conjugal visits.

Prison in America has not changed since the travels of Tocqueville and still have no benefit to the incarcerated, the community other than generating a criminal and uneducated segment of society that tend to be male and African American. Although many in the so-called hip-hop generation promote a culture that places incarceration on a pedestal, such is far from the truth.

Just last month, I, too, was subject to such profiling in Georgetown, which was quite a surprise for me.  First, I had always associated racial profiling with the South since I grew up in Arkansas and experienced it there the most.   Second, I had always thought that eventually I would “grow out of it.”  For some reason, I assumed that once I got a bit older and wiser, I would fit less the stereotype and I would escape what is unfortunately a perverse rite of passage for young black men.  At any rate, the article, along with my personal experience, made me put on my domestic policy hat to reflect on the issue and brainstorm possible solutions.

The report cited in the Washington Post suggests that better monitoring of police officers is vital.  This seems rather obvious.  The more important question for me, however, is just how should such monitoring be effectuated.  To only have police monitor themselves seems naïve.   Organizations tend to protect their own members and leadership is often beset by cognitive dissonance problems and incentives against enforcement.   As a result, it seems to me that empowering communities affected by profiling would very useful.  Perhaps a nationwide website could be established whereby people who felt that they had been targeted could complain.   The website could track badge numbers and names of police officers on a graph, and help identify those police officers most cited by the public as engaging in profiling.  Sure, the legal weight of such data would be limited.  You would not, for example, be able to get the data into courts due to hearsay problems.  Still, the data could prove useful for the police and help supplement their own internal monitoring by tracking the frequency and location of stops.  Moreover, they could provide a kind of shaming mechanism for those police who dishonor themselves and their colleagues by targeting motorists based on their skin color.   

Police Crimes

FBI investigates taped LAPD beating

New Orleans Police Beating

Head of Florida Law Enforcement Quits after Making Stupid Racial Remarks: Bush Appointee Compared Black leaders to Osama bin Laden and Jesse James.

A minority of states, including Maryland, does not allow any criminal conviction to be expunged.  A bill was introduced in Maryland last year that sought to make “nuisance” crimes, such as loitering, panhandling and vagrancy, eligible for expungement.  The ability to expunge these offenses would have gone a long way toward helping individuals secure employment and housing.  The bill passed both houses, but was vetoed by Governor Robert Ehrlich.  However, there is still much expungement work to be done in states such as Maryland.  Indeed, any interaction with Maryland’s criminal justice system – such as being arrested but never charged with a crime, or having charges that are dismissed or otherwise disposed of without a conviction – leads to a criminal record.   Because these dispositions do not result in a conviction, they can be expunged.  The number of individuals who are arrested in Baltimore City but never charged is shameful.  In 2005, approximately 25,000 arrests in Baltimore City did not result in filed charges, but rather were dismissed by the State’s Attorney’s Office. [To make matters worse, it is then incumbent upon these individuals to file the motions necessary to expunge their records.  I believe that any interaction with the criminal justice system that does not result in a conviction should be expunged automatically.]

However, a disturbing article in last week’s New York Times proves that expungement is not a panacea.  The article, which can be found here, tells us that employers and housing agencies across the country are actually able to access criminal records that have been expunged.  The article explains that these criminal records are now digitized (they used to be held in paper form) and sold in bulk to commercial databases.  Employers and landlords pay these database companies to perform criminal background checks on applicants. These companies then scour their records – some databases hold more than 100 million criminal records – looking for interactions with the criminal justice system.   However, the article reports that these databases are not updated regularly and often do not reflect that some of these records have been expunged.   The article mentions that there are a couple of lawsuits brewing against these database companies, brought by individuals who have been harmed by the dissemination of expunged records.

The article also vividly illustrates an unseemly relationship between our courts and database companies, as the former sells criminal history records to the latter.  This certainly is a huge source of revenue for courts, but should courts be in the business of selling this information, particularly if they cannot ensure that these records, when ultimately disseminated to employers and landlords, are completely accurate? 

These database companies, in addition to being liable to the individuals who have been harmed by the disclosure of expunged records, should pay hefty fines whenever they provide such inaccurate information.  Moreover, the employers and landlords who rely on these databases for criminal background information should also be liable to individuals who have been wronged (this assumes, of course, that the employer or landlord relied on the wrong information to deny employment or housing).  This will essentially force these actors to implement some type of quality control system.

The article proves how difficult it is for individuals to move past their interactions with the criminal justice system, even in instances where our legislatures have made it clear that they should be able to.