Where Do We Go From Here: Race in Contemporary Legal History

(Part six of six part series)

This is the last installment of my six part series on the history of black rights in America. I began this series because it was a topic that interested me, plus I love sharing information. However, more than just sharing information, I wanted to provide context to the reader that would inspire deeper reflection on where we are as a country and where we are headed. This was particularly true in light of the then pending election. The parallels between the past and the present were so apparent to me that I wondered if this series would be superfluous.

Unfortunately, with the election of Trump and the aftermath, I see that what appears obvious to some is obscure to others. Thus, in my final article, I want to not only provide more information on the current state of black rights, but I want to end with my hope for the future of this country.

Looking to the last era covered in this series, there have been several declines in the state of black rights since the end of the civil rights movement. For brevity sake, I have narrowed it down to what I believe are two major areas that have hindered black legal progress in the twenty-first century: (1) drug laws and (2) civil rights litigation.

The Change in Drug Laws

Michelle Alexander does an excellent job in her book The New Jim Crow of outlining the changes in drug laws from the Nixon era to the present. Prior to the change in drug legislation, federal law only provided for maximum of one year imprisonment for possession of any drug.[1] This all began to change drastically when the Nixon administration needed a reason to criminalize its detractors. To quote a former Nixon aide John Erhlichman:

The Nixon campaign in 1968, and the Nixon white house after that had two enemies: the antiwar left and black people. You understand what I’m saying? We knew we couldn’t make it illegal to be either against the war or black, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.[2]

This lie served as a basis for the “war on drugs.” The end result was a spike in the number of black and brown citizens arrested for what were formerly minor offenses. This devastated black communities with the removal of large portions of the population. The war on drugs really took root under the Regan administration with the “just say no” campaign (the more I think about the propaganda of the D.A.R.E. program the more upset I become). Clinton expanded this war astronomically, leaving us with no alley in either the democratic or republican party. Black men were thrown into prison in droves for minor offenses in a similar fashion as those thrown into jail under the vagrancy laws during the turn of the twentieth century.

Perhaps the greatest evil of the war on drugs is not simply that the Nixon administration lied in order to criminalize blackness, but the CIA’s involvement in the scheme. Crack cocaine ravished black lives, and the CIA led the way by importing the drug into our communities. The government manufactured the epidemic then penalized the victims. To be sure, the CIA denies these allegations, but it has been a pretty substantiated claim. An excellent film, Kill The Messenger tells the story of the journalist who uncovered the CIA’s plot.[3] Sadly, that journalist’s life was destroyed and he ended up dead with two gunshots to his head. Curiously, his cause of death was ruled a suicide.

Much more can be said, and has been said, about the role of drug legislation in the decline of the black community. The important piece to remember, however, is that it falls in line with black legal history in this country in that it furthers the idea of black criminality. It is another instantiation of when the law closes in on blacks by criminalizing neutral activity and then disproportionately enforcing that law against blacks. The result of which is the devastation and setback of the larger black community.

Civil Rights Litigation

Another area in which black rights in America has declined since the Civil Rights Movement has been in the area of civil rights litigation. This is one area I have witnessed first-hand as a civil rights attorney. The laws are only as secure and strong as those on the court deem them to be. Contrary to what may be portrayed in national debates, judges create law everyday. Even when judges claim to simply enforce the law, their interpretation on how that law should be enforced inevitably modifies that law in some respect. Objectivity in law is a myth; all judges bring their particular lens to the law, and that impacts how they interpret it. That is why who serves on the court is critical, because you do not want judges that will negatively modify the law.

Unfortunately, in the realm of civil rights, these modifications have not inured to the benefit of the law. Since the signing of the Civil Rights Act, there have been more Republican (i.e. conservative) presidents. Consequentially, federal courts are filled with more conservative judges. Historically and presently, conservatives are more hostile to civil rights, and other laws improving the protection of minority citizens.[4] As a result, the civil rights laws have silently been stripped since the late 1970s. What remains is a shell of what was, and it is increasingly more difficult to litigate your claims of discrimination. Most cases are dismissed before trial, thus depriving many litigants of their day in court.[5]

Collectively, what we see from both the drug laws and the state of civil rights litigation, is the law being used to oppress blacks on one hand, while denying them protection on the other hand. It is a theme that has been recapitulated since the arrival of blacks in this country. The plot is obvious, yet repeatedly successful. Consequentially, the frustration has built over time, triggering a visceral reaction in this generation to rise up and say “black lives matter.” This is not a statement of superiority, but an assertion of our humanity. It is a declaration that we will no longer be exploited and oppressed. Absent the full context, this is easily misunderstood.

Final Thoughts: My Prayer

It is in thinking about this misunderstanding that causes me to offer these final words. I recognize that the topic of race in this country remains the third rail. Although we would like to think of ourselves as progressive, and indeed we have made great strides in race and other areas, we must not allow our progress to have us ignorant. In the journey for racial equality, with every step forward, there have been steps, if not leaps, backward. The issue of race is one that is deeply embedded into the fabric of the country, and we have never undertaken any deeply meaningful action to holistically heal this issue and bring about conciliation. All actions have been perfunctory or superficial. What has occurred, then, is the continued dysfunctional relationship between the races that is headed for an inevitable breakup absent some intervention.

My hope is that in reading this series and engaging in further education, people will understand the urgency to bring about racial equality and conciliation. My hope is that we will began the hard work of healing our nation of this disease that has ravished us for far too long. This is not a one-sided endeavor, but requires all sides to come to the table and resolve the issue. We can no longer see “racism” as a problem for black people, but a problem that threatens our nation. I am not being hyperbolic when I say that. Rather, I understand that indeed it is true that a house divided cannot stand. I pray that we learn to unify ourselves so that we can stand together as a nation.

–Until Next Time–

Palooke

[1] Alexander, Michelle. The New Jim Crow: Mass Incarceration in the Age of Colorblindness. 53. The New Press: New York, 2010.

[2] Hanson, Hillary. Nixon Aide Reportedly Admitted Drug War Was Meant to Target Black People, Huffington Post <http://www.huffingtonpost.com/entry/nixon-drug-war-racist_us_56f16a0ae4b03a640a6bbda1>

[3] See also the film 13 directed by Ava DuVernay.

[4] See other articles in series.

[5] See Ernest Lidge III, The Court’s Misuse of Similarly Situated Concept in Employment Discrimination Law, 67 MO. L. REV. 831, 863 (Fall 2002); Tricia M. Beckles, Comment, Class of One: Are Employment Discrimination Plaintiffs at an Insurmountable Disadvantage if They Have No “Similarly Situated Comparators?, 10 U. PA. J. BUS. & EMP. L. 459(2008).