Over the last three years, this blog has attempted to sound the alarm about the Supreme Courts shift away from the enforcement and the intent of Civil Rights Legislation. With a series of subsequent decisions, the Courts have continuously raised the legal thresholds and pleading standards until we now have a system where litigants in Civil Rights cases must meet a nearly insurmountable burden of proof just to avoid dismissal or summary judgement.

By requiring plaintiffs in Civil Rights or discrimination cases to essentially prove the plausibility of their claims at the time of pleading and PRIOR to discovery, the courts have created a standard in which only the most egregious, most obvious, and least sophisticated acts could successfully be prosecuted.

It has become easier to coat various forms of discrimination with the appearance of propriety, or to ascribe some other less odious intention to what is in reality discriminatory behavior. In other words, while discriminatory conduct persists, violators have learned not to leave the proverbial “smoking gun” behind. ~ Third Circuit Court

The American Constitution Society has released a brief which details the Supreme Courts construction of new and onerous legal standards in the Twombly and Iqbal cases which undermine Civil Rights enforcement by limiting plaintiffs access to the courts.

Imagine for a moment that your teenage daughter wakes up in the morning and leaves for school just as she had hundreds of times before. And imagine learning that on that particular morning, your daughter, the 4.0 student, never actually makes it to class... In fact, she doesn't come home after school either. Frantically you search about, trying to find out where she'd gone,  and you find out that a man - one who had served time for for having improper relations with a minor, had been released from his incarceration and could be seen on camera picking your daughter up from the school that morning...

Imagine calling the Police Department and the FBI, only to have them treat you as though you were over-reacting. Imagine having them tell you that your daughter had probably just "run away" with the man and there was little they could do.

Imagine having to fight just to get the word out that something had happened. Imagine the pain as the days, and weeks, and months rolled by. Imagine investigating on your own and learning that the man had stolen a car that morning, - the same car they got into on the camera - and that that car could later be seen on camera crossing into Mexico. Imagine officials finally releasing a Missing Child poster, but still not identifying her as having been kidnapped.

Imagine that more than a year afterwards, the same officials, who never took the abduction seriously and only half-heartedly investigated, began suggesting that you might need to accept the unacceptable...

Now imagine that after hiring your own private investigator with your own funds, you learn that your daughter is in fact, still alive...

This is not just a random series of hypothetical situations... This is an all too real situation afflicting a dear friend of mine. She needs help. She has been searching for an Attorney for a very long time and while some have come and gone (along with the media), she is closer than ever to finding her daughter and the need has never been greater. If you, or someone you know, is an Attorney, licensed to practice in the State of California, and you would be willing to at least hear her out and decide what help if any you could offer, please - send me an email by clicking HERE and I will get you in immediate contact with the mother...

Yesterday, we received a racial profiling complaint from a woman named Andrea Hall. Mrs. Hall is the wife of a deployed soldier who was driving her car in the Junction City area when she was pulled over by an Officer for speeding. Mrs. Jones has provided the details of the incident in writing and has requested that we make it public.

While sitting at the traffic light of the Grant Avenue and Washington Road intersection, I, Andrea S. Hall, heard a loud thumping on my trunk. Looking out of the rear-view mirror, I noticed a police officer proceeding towards my driver-side door. Disturbed and perplexed by this, I lowered my window, as the officer furiously yelled, “When we get through this traffic light, I want you to PULL OVER into that parking lot (pointing at the parking lot of a liquor store adjacent to the traffic light)!!!” Despite my apprehensiveness of his demeanor and tone, I managed to say, “Ok.”

After arriving and parking in the aforementioned parking lot, the officer came back to my driver’s side window, just as irate as before, yelling, “Is there any reason why you’re speeding?!!”. I replied, “Well, I was sitting at the traffic light so…” Interrupting, the officer said, “Just give me your license and registration.” I nervously fumbled for the requested items, wondering why this officer was so upset. Once I handed him the items, he returned to the patrol truck and he and another officer (who was also in the same patrol truck) interacted for about 6 to 7 minutes. At this point, the other officer came to my car to serve me the traffic citation, asking me to sign it. Noticing that they had written a heavy “N” on the citation, in order to indicate my ethnicity, I said, “What’s this?” Completely disregarding my question, the officer said, “Just sign it. It doesn’t mean that you did it or not.” I scribbled over the entire signature area, now upset and offended by their conduct, but not wanting to get into a debate with the officer. I waited for him to tear the ticket, and then I pulled off.

I called the Junction City Municipal Court and when the clerk answered the phone, I said, “What is the protocol for indicating race and ethnicity, here, in Junction City because when I was stopped by a couple of your officers they’ve written a heavy “N” on the citation for my ethnicity.” Ironically, this clerk also seemed irritated, as she rudely responded, “M’am, we use “N” for Non-Hispanic and “H” for Hispanic. Are you Hispanic?” I said, “Well, no, but if that is all Junction City can see, Hispanic and Non-Hispanic, that’s racial profiling in itself. How would he have really known that anyway? That makes no sense, and I don’t believe that you guys only have two abbreviations to use for race.” She said, “Well, it is M’am, have a nice day.” She then hung up the phone.

At that time, I resolved that I would simply go to court and speak with the judge about the matter. So, on Tuesday, August 10, 2010, I went to the Junction City Municipal Courthouse. I called attorney Steve Rosel (who since then, has committed to supporting me with this case), along the way, discerning that I would need some legal advice and support. Once I arrived to the clerk’s desk, she asked me if I just wanted to pay the ticket. I told her that I was actually there to speak with the judge about the citation, due to the officer’s misconduct. I then showed her the ticket through the glass window, asking her to look closely at what the officer had written for my ethnicity. The clerk said, “What’s the problem?” I then explained to her that I did not believe that Junction City would find it acceptable to use the letter “N” for an African-American’s race. I then said as a matter of fact, I want to hear what the judge has to say, because I was repulsed and very offended. She said, “Well, I don’t know what he’s going to say, but you can talk with him.” I said, “Well, M’am, when I called and spoke to your office, one of you guys told me you ‘only use ‘N’ for Non-Hispanic and ‘H’ for Hispanic. I beg to differ, and I will tell him that. In fact…” (Pausing to ask a Caucasian male (service member) for his traffic citation, who had just entered the lobby, I looked at his citation and showed the clerk (again through the glass window) that his traffic citation had the letter “W” annotated for his ethnicity, which is obviously because he is white. Wanting to make sure that she and I both understood that the previous explanation for the “N” on my ticket was preposterous, I then asked an African-American male for his traffic citation, and after looking at it, I showed her that even he had the letter “B” for Black. Speechless, the clerk said, “M’am, just have a seat and I’ll get you on back.”

Joining the other citizens waiting to appear before the judge, I waited patiently for my time to explain this to the judge. When it was finally my turn, the judge stated that I was cited for speeding, and asked me what was my intentions for coming to court that day. I began to explain to him all of the aforementioned information, but was interrupted by the courtroom attorney, who said that was not the time to explain the situation because it was not a trial. I said, “Well, I just want to know how the judge feels about his officers writing the letter “N” for an African-American’s ethnicity.” The judge (and the other court officials) chuckled and said, “M’am, what do you want to do? Do you want to pay the ticket or contest it? I’ll hear what you have to say in a continuance, but the attorney’s right, we can’t go into discussion about this right now. I will not proceed to try to explain what the city has done, without the officer being here. So, do you want a continuance?” I said, “Yes.” After explaining a few other legalities to me, he then set my court date for September 29, 2010, at 6:00 p.m. I thanked them and exited the courtroom.

Mrs. Jones' case is now being filed with the Kansas Human Rights Commission (the agency with the statutory authority to investigate profiling cases and request relief). We will be attending the hearing with Mrs. Jones and I will keep you all posted here on the blog...

The right to remain silent and the right to an attorney are guaranteed to all citizens in the 5th and 6th amendments of the constitution. In 1963, Ernesto Miranda was arrested and interrogated, and during that interrogation he confessed to the commission of a crime. Upon review, the Supreme Court ruled that in order for his statements to be admissible, he had to be aware of his rights under the 5th and 6th amendments, and he had to make a knowing, intelligent, and voluntary waiver of those rights. His first conviction was thrown out, and since then the "Miranda Warning" has an integral part of our system of our criminal justice system.

But despite its ubiquity, buried within the Miranda warning is a concept that we mistakenly take for granted: That we are all guaranteed a right to counsel. That guarantee is rooted in our Adversarial system of jurisprudence which presupposes that in any criminal proceeding, both the plaintiff and the defendant should be afforded equal access to the courts and each allowed to present their most vigorous and spirited argument. It is through this process of reasoned argument between two equal platforms that we aspire to arrive at the truth.

That is the noble system we've drafted, but is that the system we have?

The reality is that in counties all across the nation, Public Defenders offices find themselves dramatically under-staffed and under-funded compared to their colleagues in local District Attorney's offices and private firms. This is not a bureaucratic or budgetary problem. These disparities challenge the integrity of our criminal justice system. Chronic under-funding contributes to high turnover rates, which result in Public Defenders offices disproportionately relying upon recent college graduates who lack real world trial experience. Chronic under-staffing results in Public Defenders being forced to manage impossible caseloads, significantly limiting the amount of time attorneys can spend reviewing any given case or preparing effective defenses. The cumulative outcome of these structural inequities is that poor and largely minority defendants, who are constitutionally guaranteed a right of equal participation and access to our adversarial system, too often enter courtrooms with inadequate, inexperienced, and or under-prepared counsel.

Right here, in the fair city of Wichita, attorneys  in our Pubic Defenders office are managing an average of almost 250 cases per year. And with nearly 4,800 annual cases, they are staffed with only ONE investigator! That is more than a travesty, that is a rolling civil rights violation designed into the very structure of the system; a system in drastic need of reform. The Kansas State Conference of the NAACP will be lobbying for changes to the system in the upcoming legislative session. We'll post details on this initiative here on the blog.

THE ISSUE:
The United States is the world's leader in incarceration with 2.3 million people currently in the nation's prisons or jails -- a 500% increase over the past thirty years. These trends have resulted in prison overcrowding and state governments being overwhelmed by the burden of funding a rapidly expanding penal system, despite increasing evidence that large-scale incarceration is not the most effective means of achieving public safety. This over-reliance on incarceration has also had a disproportionately serious impact on communities of color: 57% of incarcerated inmates are racial or ethnic minorities and 88% of inmates are male. Specifically, as of mid-year 2009, whites represented 42.5% of all incarcerated inmates; African Americans, 39.2%; and Hispanics, 16.2%. These percents have remained nearly stable since midyear 2000. Furthermore, prisons aren't the only area within the criminal justice system that has seen a huge growth over the past three decades. Our society's increasing over-reliance on the criminal justice system is even more apparent when you add in the number of Americans on parole or probation: one in 31 adults in America is in prison or jail, or on probation or parole. Twenty-five years ago, the rate was 1 in 77.

In addition to the extreme human toll this is taking on our Nation, the financial costs are staggering: The National Association of State Budget Officers estimates that states spent a record $51.7 billion on corrections in FY2008, or 1 in every 15 general fund dollars. Adding local, federal and other funding brings the national correctional spending total to $68 billion. This is money that cannot be spent on education, health, transportation, or other projects that benefit society as a whole.

Clearly, we as a nation need to take some new approaches to effectively reduce the number of people we put into prison each year. We have found, however, is that incarceration reduction programs that are very successful in one state are sometimes much less so in another. The only true common factor in all 50 states right now is that they are all struggling under the weight of enormous burdens in terms of human as well as monetary resources as a result of a dysfunctional criminal justice system.

To help address the problem, Congressmen Adam Schiff (CA) and Dan Lungren (CA), along with Senators Sheldon Whitehouse (RI) and John Cornyn (TX) have introduced H.R. 4080 / S. 2772, the Criminal Justice Reinvestment Act. This legislation devotes grant funding for intensive analysis of criminal justice data, policies, and the cost-effectiveness of current spending on corrections, in order to develop data - driven policy options that can address this. The bill then provides resources for the implementation of solutions and for reinvesting averted prison costs to bolster such initiatives. The NAACP strongly supports H.R. 4080 / S. 2772, and urges its immediate enactment.

This is of particular importance here in Kansas where the Legislature's flat funding of alternatives to incarceration programs may lead to significant cuts in services and increases in recidivism. This is because while the funding for such programs remains flat, the number of people incarcerated who would qualify for these programs has increased. This is further compounded by the fact that the lagging job market makes it increasingly difficult to find stable employment for former inmates, so those who are in the programs tend to stay longer. Without adequate funding, many evidence based programs will either reduce the number of clients they serve (leading to increases in the prison and jail populations) or scale back the services and supervision they provide, which evidence suggests would lead to increased rates of recidivism.