Extrajudicial Killings and Judicial Injustices
In the wake of the death of George Floyd, there has been renewed discussion of extrajudicial killings in the United States. The National Memorial for Peace and Justice in Montgomery, Alabama, commemorates the thousands of victims of lynching in American, particularly the Black victims of a swell of primarily-Southern lynchings from the late-1800s to the mid-twentieth century; the marches of millions of individuals protesting police brutality against Blacks is, at least for now, a vibrant memorial of contemporary extrajudicial killings.
In mainstream discourse, extrajudicial or extralegal killings have often been associated with oppressive governments in other nations. Uninterested in the rule of law, the powerful in those nations have been able to exert violence against others unmediated by due process, neutral evaluation, or other judicial check. Many people have joined the recent protests here because they could no longer avoid the conclusion that in the United States, as in other nations, governmental forces can and do act with essential impunity in inflicting retribution for perceived crimes (or even merely for a perceived status) without waiting for the constitutionally-guaranteed process of formal charge, presumption of innocence, fair adjudication, and proof beyond a reasonable doubt. Many people can no longer pretend that such actions are the province only of countries like the Duterte-era Philippines. For many others, of course, this was far from a new realization.
This salutary discussion of extrajudicial action – identifying, naming, and reiterating the departure from due process when a police officer becomes jury and executioner -- should not, however, obscure two additional and perhaps more fundamental truths. First, these extrajudicial killings are never truly extra-judicial, as they do not occur entirely apart from the judicial system. This has always been the case here. Lynchings were often tolerated or even encouraged by the legal authorities and supported by much of the community at large. Some lynchings were the result of quick action taken under cover of night; others, though, were planned, publicized in advance, and turned into communal, social outings.[i]
Contemporary police misconduct is often provided with the same tacit or even explicit protection. Police officers are rarely subject to prosecution for criminal conduct while on duty or even given meaningful professional discipline. Efforts by private individuals to vindicate rights against law enforcement officers through civil rights lawsuits have been hamstrung by the legal doctrine of qualified immunity. Qualified immunity is justified as providing legal protection for officers who could not have predicted, in advance, that their actions would be considered as infringing on the constitutional rights of others. In practice, though, courts have been willing to find hair-splitting distinctions between the conduct at issue and prior decisions, in order to grant officers immunity because it was not clearly established that their conduct was unlawful. In one recent case, a federal court held that qualified immunity applied when, at an arrest scene, an officer unnecessarily shot at an unthreatening dog and hit an innocent child lying face down next to the dog. Qualified immunity was granted, in part, because the plaintiff could not point to any case specifically holding that it violated the Constitution for an officer to recklessly shoot at a dog and hit a child.[ii] That situation, quite obviously, had not arisen previously, yet for that precise reason the officer could rely on the protections of qualified immunity. A system that rewards officers for inventing new and different ways to violate the rights of others (or, at least, for employing lawyers who can perceive minute factual differences from prior cases) is one that has lost its moorings. Just this week, one federal judge, while finding himself forced to apply qualified immunity by precedent, passionately decried that doctrine:
Over the decades, however, judges have invented a legal doctrine to protect law enforcement officers from having to face any consequences for wrongdoing. The doctrine is called “qualified immunity.” In real life it operates like absolute immunity….
This Court is required to apply the law as stated by the Supreme Court…. But let us not be fooled by legal jargon. Immunity is not exoneration. And the harm in this case to one man sheds light on the harm done to the nation by this manufactured doctrine.[iii]
While legislation removing qualified immunity has been proposed in the aftermath of Mr. Floyd’s death,[iv] it faces a significant uphill battle.
Second, those condemning extrajudicial action should not posit the judicial system, as it currently operates, as the solution to these injustices. The judicial system is just as infected by systemic and personal racism as the police state. It is of course wrong when officers impose punishment without affording a defendant his or her day in court, but it also important to realize that such a day in court would hardly be a fair one. Had George Floyd been formally charged with the suspected offense of passing counterfeit money, or charges lodged against Eric Garner for selling untaxed cigarettes, or Ahmaud Arbery charged with criminal trespass, they would not have been executed; but there is also little reason to believe that the system would have treated them fairly in determining their guilt and imposing any punishment.
Two observations are appropriate. The easiest one is simply to observe that criminal activity is positively correlated with lower wealth, decreased social mobility, less access to mental health treatment, and lessened social networks. As currently constructed, our system serves to identify and penalize individuals of certain socio-economic groups, individuals with certain mental illnesses and addictions, and individuals lacking community and family support. Blacks and other oppressed groups have less access to wealth, treatment, and other privileges, and the effects of oppressive treatment in these other areas of life combine and accumulate in the criminal justice system. Even a justice system that was scrupulously race-neutral would have racially-skewed outcomes, given the racial disparities endemic in all other walks of life. These disparities contribute to the number and types of crimes committed, as well as the ability of individuals to defend against charges. The persistence of the bail system directly connects access to wealth to outcomes: the sad spectacle of a defendant, unable to raise money for bail and thus held in jail prior to trial, pleading guilty in exchange for immediate release is a sign of a system fundamentally unconcerned with accurate determination of guilt or innocence. In short, the effects of systemic prejudice in other areas of life (employment, housing, wealth, education, etc.) accumulate and multiply exponentially in the criminal justice system, the one system that has the power to place individuals into physical cages. The rise of mass incarceration has made this truth painfully obvious, as the differential treatment and inequitable outcomes can be measured in simple body counts. Blacks are incarcerated at roughly five times the rate of whites. In 2018, black Americans represented 33% of the prison population, nearly triple their 12% share of the U.S. adult population; whites accounted for 30% of prisoners, about half their 63% share of the adult population.
Sadly, the criminal justice system places an additional measure of racial mistreatment on top of this already-uneven playing field. Every stage of the proceedings – from legislation, to police policies, to arrest, to charging decision, to plea negotiations, to adjudication, to sentencing – is infected with racial bias and prejudice. (For a valuable updated list of relevant studies, go here.)[v]
As to legislation, the saga of the differential treatment of crack cocaine and powder cocaine (where federal legislation required crack, viewed as the drug of African-Americans, to be sentenced harsher than equivalent amounts of cocaine) is but one of many examples of legislation driven by misperception and prejudice. Initially adopted in the middle of a panic, exacerbated by the racial prejudices that viewed a drug primarily associated with Blacks as worse than one used by whites, it stayed in place long after the panic had subsided and there was no justification left but sheer prejudice.
Blacks are more frequently stopped, detained, and arrested than other groups. These documented racial disparities may be reflective of individual prejudice or explicit departmental policies, such as the use of unjustified stop-and-frisks as a prophylactic measure intentionally targeting specific groups. The racial effects of stop-and-frisk policies are, by this point, well known; they have traumatized countless individuals with no measurable benefit to public safety. Blacks are stopped more while driving and arrested more for drug offenses, despite evidence that different racial groups use illegal drugs at similar rates. Other striking disparities continue: to give but one example, a report this week indicated that over the last year, in Albany, N.Y., a city with a 30% Black population, 97% of arrest or tickets for marijuana were given to Blacks.
Once charges have been brought in court, pernicious racial effects take on a more cloaked but equally potent form. Individual prosecutors make thousands of discretionary decisions, starting from the decision of which crime to charge to the decision of what plea bargain to accept. Statistical evaluation of these often-opaque decisions is difficult, though existing studies strongly suggest a correlation between race and outcome. It is, of course, hardly a surprise that the discretionary decisions (made with little to no personal consequence) of disproportionately white prosecutors might reflect reduced empathy with Black defendants.
In that small fraction of cases that make to a jury trial, racial bias and animus persists. The story of Curtis Flowers is an extreme: a defendant tried six times, with the prosecution repeatedly using all of its available peremptory challenges to strike any potential Black jurors, contrary to the clear prohibition on a prosecutor seeking remove a prospective juror based on his or her race. (In a criminal trial, both sides can remove a certain number of otherwise-qualified potential jurors from the trial jury for almost any reason they want other than race.) His case made its way to the Supreme Court and was the subject of an influential podcast.[vi] The high-sounding doctrinal protections against such discriminatory action[vii] are largely toothless, and only provide a remedy in the most extreme cases. For those tens of thousands of defendants whose prosecutors need only strike one or two minority jurors in order to produce an all-white jury, the legal standard is essentially toothless. It is an incompetent prosecutor indeed who cannot figure out how to cloak racial animus, or merely an unprincipled desire to win (statistics show that conviction rates fall when even a single minority is included on the jury[viii]), behind a plausible race-neutral justification sufficient to meet the legal standard. Reports suggest that, in many jurisdictions, prosecutors are trained in exactly how to do that.
The electric chair in Auburn State Prison, Library of Congress,
Finally, a focus on extrajudicial killings should not obscure the presence of judicial killings: the imposition and implementation of the death penalty. Although death sentences have been largely on the decline across the country in recent years, they are on the growth in some jurisdictions – after a seventeen-year delay, the federal government has executed three people in the last few weeks.
The relevance of race to this portion of the justice system is unavoidable. The same systemic factors that produced skewed statistics in other areas of the justice system do not disappear in capital cases. For example, in Tennessee where I practice, Blacks make up 17% of the state-wide population but 44% of the death-row population.[ix] Similar statistics obtain across the country. According to the Death Penalty Information Center, Blacks make up 41.56% of death row. And the prevalence of capital punishment correlates with historic geographic variations: as one commentator has aptly written: “The lynch mob and the lethal injection [have been] found in the same American neighborhoods.”[x]
There is an additional twist with respect to capital punishment. A study just released in August 2020[xi] has reiterated a striking fact: a defendant who has killed a white person is more likely to be sentenced to the death penalty than a defendant who kills a Black person. Indeed, when controlling for other variables, a defendant who has killed a white person is five times more likely to be sentenced to be executed than one with a Black victim. Further, this new study has shown that, when considering the numbers of individuals actually executed (most people sentenced to death have not yet been executed), the differential increases to seventeen times. The Supreme Court rejected this kind of disparity as a grounds to strike down capital punishment in the 1987 case of McCleskey v. Kemp.[xii] Without denying the validity of the statistics showing this difference, the justices denied any relief, partly out of recognition that ruling in favor of the defendant would have opened up the criminal justice system to a variety of attacks. As the dissenters claimed, the majority seemed to have “a fear of too much justice.”
It will be no surprise that Mr. McCleskey, who was executed for having killed a white police officer in Atlanta, was born in Cobb County, Georgia, which had seen dozens of lynchings, including those with lively crowds, news coverage, and memorial postcards.[xiii] (A selection of such postcards can be seen here.) Justice John Paul Stevens, writing after his retirement, summarized his view of that decision: “That the murder of Black victims is treated as less culpable than the murder of white victims provides a haunting reminder of once-prevalent Southern lynchings.”[xiv] This is not to say, of course, that more people should be executed for killing Black victims; it is merely to observe that, in our system, whether as defendant or victim, Black lives do not seem to matter as much as others.
[i] David Garland, Penal Excess and Surplus Meaning: Public Torture Lynchings in Twentieth-Century America, 39 Law & Soc'y Rev. 793 (2005).
[ii] Corbitt v. Vickers, 929 F.3d 1304 (11th Cir. 2019), cert. denied, No. 19-679, 2020 WL 3146693 (U.S. June 15, 2020).
[iii] Jamison v. McClendon, No. 3:16-CV-595-CWR-LRA, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020).
[iv] Spencer Bokat-Lindell, “The One Police Reform That Both the Left and the Right Support.” The New York Times (June 2, 2020).
[v] Radley Balko, “There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof,” The Washington Post (June 10, 2020).
[vi] In the Dark (Season Two).
[vii] Batson v. Kentucky, 476 U.S. 79, 87 (1986).
[viii] Janell Ross, “How big of a difference does an all-white jury make? A leading expert explains.” Washington Post (May 30, 2016).
[ix] Bradley A. MacLean & H. E. Miller, Jr., Tennessee's Death Penalty Lottery, 13 Tenn. J.L. & Pol'y 85 (2018).
[x] G. Ben Cohen, Mccleskey's Omission: The Racial Geography of Retribution, 10 Ohio St. J. Crim. L. 65, 78 (2012) (quoting Franklin E. Zimring, The Contradictions of American Capital Punishment 118 (2003)).
[xi] Scott Phillips & Justin Marceau, Whom the State Kills, 55 Harvard Civ. Rights, Civ. Lib. L. J. 1 (2020).
[xii] McCleskey v. Kemp, 481 U.S. 279 (1987)
[xiii] Jeffrey L. Kirchmeier, Imprisoned by the Past: Warren McCleskey and the American Death Penalty (2015). For an online selection of lynching postcards, see Without Sanctuary: Photographs and Postcards of Lynching in America.
[xiv] John Paul Stevens, On the Death Sentence, New York Review of Books (December 23, 2010) (quoted in Adam Liptak, “A Vast Racial Gap in Death Penalty Cases, New Study Finds,” The New York Times (August 3, 2020)).
Jonathan Harwell has practiced as a criminal defense lawyer in Massachusetts and Tennessee for fifteen years.
(c) 2020 Jonathan Harwell