Scottsboro Boys Exonerated, But Troubling Legacy Remains for Black Men

This blog post is by Dennis Parker, Director of the National ACLU's Racial Justice Program. It originally appeared on the ACLU's Blog of Rights.

The Alabama Board of Pardons and Parole's posthumous pardon today of the last of the black men wrongly convicted of the rape of two white women 82 years ago in Scottsboro, Alabama seems to write the final chapter of a sorry story that epitomizes the racial injustice and procedural unfairness that dominated the criminal justice system in the United States in the beginning of the last century. It would be difficult to concoct a process more unfair from beginning to end. Starting with the arrest of nine black men and boys on fabricated and completely contradictory allegations of the rape of two white women, the case proceeded through a serious of rushed and unfair trials. The defendants were represented by counsel wholly unfamiliar with criminal defense work and unable to conduct even the most basic investigations. The jury deciding the case completely excluded African Americans and their deliberations were conducted under the very real threat of the lynching of the defendants. Although the alleged victims ultimately recanted their stories and admitted that their allegations of rape were complete fabrications, all of the men were convicted and all but one sentenced to death. During the case seemingly every ugly stereotype appeared, from the depiction of the criminally rapacious black male intent on ravishing white women to the attacks on the counsel who ultimately took on the case on remand as meddling communistic Jewish lawyers from New York.

But is this long overdue pardon the final word in one of the most sordid parts of our nation's history? It is certainly true that through the efforts of advocates including Walter Pollak, the ACLU lawyer who argued the case in the United States Supreme Court, the first steps were made toward requiring representation in capital, and later all criminal cases. The case also questioned the practice of categorical exclusion of people from juries on the basis of race. And the chilling images of thousands of people, including whole families, gleefully observing public lynching of African Americans have been relegated to the past.

But the troubling perceptions linking people of color, particularly African Americans and more particularly black males, to criminality have persisted. The fearful consequences of this link also continue. They can be life threatening as we see in the too frequent events of people of color killed after shopping for snacks or while seeking assistance after traffic accidents. And, even when the consequences are not fatal, when individuals of color are detained under suspicion of shoplifting after legitimate purchases at expensive stores or subjected to repeated stops on the streets while they are violating no laws, there seem to be no end to the reminders that a whole range of humiliating, degrading and potentially fatal actions are still taken by people convinced that race and ethnicity are sure signs of criminality.

The nine black men and boys unfairly charged with crimes 80 years ago are beyond continued suffering from the discrimination inflicted on them in their lifetime. They are likewise beyond the relief afforded by pardons. The clearing of their names does have symbolic importance, but the greatest tribute to their suffering would be for the nation to take an unflinching look at the way that race still informs too many aspects of our criminal justice system and take the steps necessary to give full meaning to our professed belief in equality before the law.

Oliver Stone: Don’t Stand By While the NSA’s Surveillance Machine Eats Our Civil Liberties

This blog post is by Noa Yachot, Communications Strategist for the National ACLU. It originally appeared on the ACLU's Blog of Rights.

After The Guardian and The Washington Post revealed the astonishing scope of some of the NSA's surveillance activities, some people claimed that Americans wouldn't care. But Oscar-winning director Oliver Stone doesn't accept that.

In the video below, produced by the ACLU, Stone discusses the NSA spying program, recalling a disastrous legacy of unchecked government abuse of power. He reflects on the terrible consequences of runaway surveillance during the 1960s and 1970s, when intelligence services exploited fears of external threats to the United States to enjoy a carte blanche for their illegal activities. "We did not pass the Fourth Amendment to protect those with something to hide," Stone tells us. We passed that amendment "because we know all too well the cost of an unaccountable government."

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Now is a critical time in our nation's history for all Americans to stand up for our civil liberties, Stone says – by asking representatives in Congress to roll back the surveillance state.

Section 215 of the Patriot Act and Section 702 of the FISA Amendments Act, passed in the wake of the September 11 attacks, have drastically eroded our Fourth Amendment rights. These statutes allow the government to access our most sensitive information without meaningful judicial oversight.

"I won't stand idly by while our civil liberties are eaten by the NSA surveillance machine," Stone says. "You shouldn't either." You can join Stone and the ACLU in demanding an end to the surveillance state, by signing a petition calling on Congress to repeal these problematic sections of the Patriot Act and the FAA. The time to act is now.

Click here for more from the ACLU on the NSA surveillance program.

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Issue

It’s Time to End the Failed War on Marijuana

Marijuana has become the drug of choice for police departments nationwide – a trend that is playing out with major consequences here in Nevada. According to a new report released by the ACLU, police in Nevada made 10,382 marijuana arrests in 2010. We have the 8th highest arrest rate in the country, per capita. Of these arrests 9,139, or 88%, were for possession – which means that thousands of people have been unnecessarily ensnared in our criminal justice system just for having marijuana.

Let’s begin with the backstory. Over the last twenty years, police have turned much of their zeal for fighting the misguided War on Drugs towards the enforcement of marijuana laws in communities across the country. Since, 2001, arrests for possession of marijuana in Nevada have risen 96%, one of the greatest increases in the nation.

Like America’s larger War on Drugs, America’s War on Marijuana has been a failure. Despite being a priority for police departments, their aggressive enforcement of marijuana laws has not diminished the use or availability of marijuana. In fact, use has increased.

How is this failed War on Marijuana affecting Nevada?

  • Over-policing. In 2010, cops in Nevada made one marijuana bust every 50 minutes. Once ensnared in the criminal justice system, people can lose their liberty, money, time, jobs, public benefits, child custody, drivers’ licenses and student aid, and can be deported.
  • Wasted Time and Money. Nevada spent over $41.6 million enforcing marijuana possession laws in 2010, making our per capita spending the 6th highest in the nation. This money could have been otherwise invested in our communities to enhance public health and safety, drug treatment programs, and police-community relations.
  • Unacceptable and Extreme Racial Bias. Marijuana usage rates are similar among Blacks and whites, yet Blacks in Nevada are 4.5 times more likely to be arrested for marijuana possession. Nevada has the 11th worst racial disparity in arrest rates for marijuana possession in the nation.

The aggressive enforcement of marijuana possession laws needlessly mires hundreds of thousands of people in the criminal justice system, crowds our jails, wastes billions of taxpayers’ dollars, fails to reduce marijuana use and availability, diverts precious police resources away from solving serious crimes, and is carried out with staggering racial bias.

As the ACLU’s report makes clear, it’s time to end the failed War on Marijuana.

Take Action! Sign the ACLU Action petition calling for an end to marijuana arrests.

Supreme Court Ruling a Blow to Genetic Privacy

On Wednesday, June 25, Governor Sandoval signed a bill into law that will require the DNA collection and testing of all individuals arrested for a felony in Nevada. Today, in a case from Maryland, the United States Supreme Court ruled that DNA testing of arrestees is constitutional. Nevada’s new law is much broader than the scheme in Maryland examined by the court. Nevada’s law requires DNA testing for any person arrested for a felony, but Maryland’s is limited to violent felonies. Similarly, Nevada’s law does not prohibit familial searching and does not require automatic expungement of DNA records if an individual is not convicted of a crime. Maryland’s law prohibits familiar searching and also requires automatic expungement of records. There are two known cases in Nevada where mistakes made in DNA testing by crime labs resulted in the conviction of innocent people. The ACLU of Nevada will closely monitor the implementation of this law while reviewing whether it meets the new constitutional bar.

The following blog is by Michael T. Risher, a staff attorney at the ACLU of California. It originally appeared on the ACLU of Northern California's Blog.

The Supreme Court’s 5-4 decision upholding Maryland’s arrestee DNA testing law is a serious blow to genetic privacy. The ruling allows the police to seize the DNA of innocent Americans who have never been convicted of any sort of crime, without a search warrant. And as Justice Scalia makes clear in his scathing dissent, the majority opinion goes against decades of precedent that makes it clear that the police cannot search an individual for evidence of a crime (and that’s clearly what they are doing here) without a specific reason to think that the search will actually uncover some evidence.

The majority opinion also largely ignores the real-world technological limits on the way that the police can actually use DNA. For example, the police identified Mr. King using fingerprints as soon as they arrested him, but it then took them more than three months even to upload his DNA into the state database; these types of delays are common because of huge evidence backlogs (the government admits that the average delay is about a month). But the Court says that the police are using arrestee testing to determine who they have arrested. This, in Justice Scalia’s colorful words, “taxes the credulity of the credulous.” And the Court supports its conclusion that taking DNA at arrest, instead of getting a search warrant or taking it from people who are actually convicted of a crime, is useful by citing law enforcement press releases dressed up as “studies,” even though any inspection of these so-called studies shows that they do not support the government’s own claims, as the ACLU pointed out in its brief to the Court (see pp. 26-31).

Finally, it refuses even to acknowledge that letting the police stick a swab into your mouth to take a sample of your DNA, to be analyzed and included in a massive criminal databank, is any different from taking a fingerprint or even looking at a gang member’s tattoos. But as we all know, DNA is fundamentally different – it is our genetic blueprint. We can only hope that a future Court will do what Justice Scalia suggests in his dissent, and overturn this unfortunate decision.

What does this mean for California and other states?

But, for now at least, King is the law of the land, and Maryland’s statute stands. But it is important to remember that Maryland’s law is very different from the laws of other states. As the Court repeatedly emphasized, it only allows the police to seize DNA from people who have been arrested and charged with very serious crimes, and the government can only test the DNA samples of those people who have actually been charged with a crime and only after a judge has found that there is probable cause to think the person has actually committed a crime. Other states’ laws, in contrast, allow the police to take DNA from people merely arrested for much less serious crimes (in California, simple drug possession, joyriding, or intentionally bouncing a check are enough; the federal government can take your DNA if you get arrested for letting your dog off-leash on federal land). And these laws also allow the government to analyze that DNA sample even if you are never charged with a crime or if a judge decides that there is no reason to think you have ever committed a crime in the first place.

The ACLU of Northern California will press ahead in Haskell v. Harris, our challenge to California’s much-broader law. We hope that the Courts will recognize that, despite today’s unfortunate decision, these much broader laws violate our fundamental rights to privacy and the Fourth Amendment’s command that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A single police officer’s decision to arrest a person for a minor offense should not justify this intrusion into genetic privacy.

Michael T. Risher is a staff attorney at the ACLU of California. Follow @MichaelTRisher on Twitter.

What Secrets Are In Your DNA?

Today is National DNA Day, which commemorates the anniversaries of the discovery of the double helix in 1953 and the completion of the National Genome Project in 2003. It is a day to celebrate and learn more about the marvels and technological advances in DNA.

Years of research have unlocked some of the incredible secrets of DNA. Genetic testing can now determine if a person is a carrier of a genetic marker that may indicate potential for future diseases and help determine the type of medical treatment necessary. Scientists believe that individuals may one day have personally designed medical treatment plans based on their genetic information that will help combat and treat diseases such as cancer, diabetes, and Alzheimer’s disease.

Though these advancements are exciting and important, even the scientists involved in the Human Genome Project have recognized the ethical concerns associated with obtaining such highly personal and revealing information. They established the Ethical, Legal, and Social Implications (ELSI) Program to address issues such as interpreting genetic information, genetic discrimination, and genetic privacy. For example, understanding that genetic testing may be used more frequently in health care, ELSI advocated for genetic privacy and freedom from genetic discrimination by health insurers and employers based on DNA information. Their work led to the passage of the Genetic Information Nondiscrimination Act of 2008.

Ethical concerns, however, reach far beyond the realms of health care and employment, and are magnified when DNA is collected by the state without a warrant. For this reason, we oppose Senate Bill 243, a bill mandating DNA testing upon arrest. SB 243 aims to take DNA samples from arrestees, prior to conviction and without a warrant, to connect them with crimes that may be completely unrelated to their arrest. This proposal violates the principle of being innocent until proven guilty and the constitutional right of due process.

Currently, the U.S. Supreme Court is deciding the constitutionality of a law similar to SB 243 in Maryland v. King. In the meantime, Nevada lawmakers may soon subject the state to overburdened and understaffed testing facilities banking its citizens’ valuable DNA information as if it were simply a fingerprint.

DNA analysis reveals a "treasure-trove" of information about an individual's medical and personal history and therefore is not simply a method of identification, like a fingerprint. As the 9th Circuit stated in Norman-Bloodsaw v. Lawrence Berkeley Laboratory, “One can think of few subject areas more personal and more likely to implicate privacy interests than that of one’s health or genetic make-up.”

Please join the fight against SB 243. Take a moment to contact your Assemblyperson through the legislature’s online bill opinion poll and urge them to oppose collecting DNA information from arrestees.

by Amanda Morgan, a Legal Intern with the ACLU of Nevada

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