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The True Story Of Our Racist Criminal Justice System & The People Who Have Vowed To Fix It

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The History Of Racism In The Criminal Justice System & How Lawyers Are Fighting Racist Laws

It's been some sixty days since George Floyd was killed on the street in Minneapolis. That means almost nine weeks of protests. Some have died down, while others — like those in Portland, Oregon — have only grown in size.

For many who are out in the streets for the first time, it feels like a lifetime. 

But for some of us who have been working toward reforming racism the criminal justice system, it is a moment steeped in the possibility of hope for a better country — one no longer motivated by white supremacy. 

The explosion of videos of police interactions with Black citizens, of white neighbors calling the police, along with the divisive language of some of our leaders, may make it seem that the country is in a particularly terrible moment — but it is a moment that has been lasting hundreds of years. 

The protests in the streets, the outrage of today, is the legacy of 19th century advocates like Louis A. Martinet; it is the life work of friends and colleagues of mine, like Calvin Duncan, who are working to reform a racist criminal justice system today. 

This is that story.

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First, a little history.

In 1898, a group of white men in Louisiana met to develop a new Constitution to address their concern that the new voting power of Black citizens would undermine their control. 

Like meetings across the south at the time, the goal was to protect the economic and social status of whites in the face of Reconstruction which had prohibited slavery except as a criminal punishment, give Black citizens the rights of white citizens, and ensured that every (male) citizen was allowed to vote. 

The stated purpose of this meeting of white men was, literally, to ensure “white supremacy” would last forever. 

They wanted to do in practice what the amendments had prohibited. 

Louis Martinet, a Black civil rights leader of his time, wrote the U.S. Attorney General and begged for help. 

He said, essentially: all of the rights and privileges of citizenship are being taken away, in a cruel twist of history which returned Louisiana to the pre-Civil War state. 

He talked about freed Black citizens being arrested for status crimes (like unemployment) and leased back to white landlords as slaves. 

He talked about the silencing of Black voices on juries. He talked about the way the right to vote was being stolen from Black people. 

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There was no help from the Attorney General. There was no help from federal troops that had left the South decades before.

The leaders of the all-white Convention recognized that they “could not do what they wanted to do” which was pass a law that allowed white people to vote and denied the right to Black people. 

So they passed laws that they believed would ensure “no judge from Massachusetts” could object — but that gave the right to vote to anyone whose “grandfather could vote”. 

Remember, this is the year 1898, and that few, if any, Black men's grandfathers would have been allowed to vote.

It was called the “grandfather clause” (yes, this is the origin of the term still in use today). The same convention allowed juries to convict based upon a 9-3 vote, created “habitual offender laws” that allowed citizens to be sentenced to a life sentence at hard labor on what were the former slave plantations for multiple misdemeanors, like public intoxication or unemployment. 

Yes, in essence, they had created loopholes to enslave free Black citizens of the United States of America. 

From 1897 to 1922, the number of registered Black voters in Louisiana went down from 130,000 to 598. 

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Today, Louisiana leads the nation in incarceration. 

Every year, the legislature identifies a new crime, a harsher sentence. The budget for law enforcement and prisons balloons, and there is no funding for schools, mental health services, lead and toxin prevention, much less job creation  and medical care. 

Politicians peddle fear of crime as a drug. We have become addicted to incarceration, as a vestigial hangover from our racist past and a powerful tool of modern white supremacy. 

The cost of our addiction to incarceration is, in some ways, easy to measure. 

Over three-quarters of a billion dollars are spent per year locking people up in Louisiana alone. Hundreds of millions are spent on “law enforcement.”

But in other ways, it is impossible to track the cost of what we lose when we lock up a generation of people, and the damage that we do to future generations.

The author with colleagues Jamila Johnson, Calvin Duncan and Shanita Farris*

In 2004, Calvin Duncan and I began challenging one aspect of racism in the criminal justice system: Louisiana’s non-unanimous jury system. 

The system was directly derived from that Louisiana 1898 Constitutional Convention. It silenced the voices of African-American jurors who had to attend jury service, but whose votes then didn’t count. 

It ensured that white police officers could lie about their interactions with Black citizens, with no check on a jury to question the lies. 

It ensured that white prosecutors could seek to punish Black children for selling marijuana in ways they would never punish white children for the same crimes. 

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At the time we started, Calvin was inmate counsel at The Louisiana State Penitentary, the largest maximum-security prison in the United States, nicknamed "Angola" after the slave plantation upon which it was built.

Calvin was twenty years into serving a life sentence, and over the next eight years we filed a half-dozen challenges to the United States Supreme Court. 

When Calvin himself was released from prison for a crime he did not commit, after 28 years in custody, we re-doubled our efforts.   

In 2018, Calvin was part of a broad coalition of left and right that organized to remove the provision from the Louisiana constitution for offenses that happened after January 1, 2019. 

He argued that if we are going to remove the statues of the Confederate Soldiers, that we had to remove the statutes (the laws) that kept people incarcerated as well. 

His voice mattered. Folks like John Legend heard Calvin Duncan and wrote “Its time to come together, reject prejudice in all its forms, and build a future in which everyone is valued and supported. The 1898 constitutional convention was about denying voice to the expression of all of Louisiana’s citizens. This ballot question in November is about giving Louisiana her voice back.”

The vote was overwhelming in favor of liberty. But the new law only applied to future cases and people convicted in the past remained in prison.

In 2019, on our twenty-fourth petition to the United States Supreme Court, the Court agreed to hear Ramos v. Louisiana. This was the case that, if decided in our favor, would change the legal precedent and end non-unanimous jury convictions. 

And in April of 2020, the Court in a 6-3 decision ruled that the Constitution requires a unanimous verdict. 

The Court recognized that “avowed purpose” of the law was to “establish the supremacy of the white race,” and that courts in Oregon and Louisiana — the two states permitting non-unanimous verdicts — “acknowledged that race was a motivating factor in the adoption of their States’ respective nonunanimity rules.”

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Our office — the Promise of Justice Initiative (PJI) — is now trying to identify every person in Louisiana convicted by a non-unanimous verdict. 

We believe that there are 1,600 people in prison in Louisiana where one or two jurors had reasonable doubts about their guilt.

We know that Louisiana’s Attorney General Jeff Landry will argue that legal technicalities prevent each one of these people from receiving a new trial — that these 1,600 people must remain in prison because their convictions were too long ago. 

But we believe there is no grandfather clause in the Constitution that allows a state to incarcerate people based upon a racist and unconstitutional law.

That these men and women have served longer and have been forced to work the fields for more years, based upon an unconstitutional statute is a reason to grant them freedom — not deny it. 

Seeing hundreds of thousands of people in the streets demonstrating for a more fair, right-sized, more honest justice system is a much heartened response to Louis Martinet’s more than century old call for help.

His voice whispers from then to now.  

It is an actualization of our constitutional principles — that we ought not be a government of law imposed on people, but a government that ensures that justice flows from and to the people and back.  

Some day in the not so distant future we will be at the Louisiana Supreme Court arguing a case to redeem the soul of the state, and perhaps the nation. 

Calvin Duncan starts law school this fall, so I know just the person to argue it. 

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Ben Cohen is Of Counsel at the Promise of Justice Initiative and the husband of Gabriella Celeste.

*photo courtesy of the author