Race and the Law: The Best and Worst of 2011

Mark Boster/AFP/Getty Images
Mark Boster/AFP/Getty Images

There's no area in which the wishful thinking of those who predicted an age of post-blackness has been more fully discredited than in the intersection of race and the law. From the continued and, some argue, intensified plague of police brutality to the ongoing prevalence of employment and housing discrimination, 2011 was a testament to the endurance of race as a barrier to full citizenship in the United States.


But all was not negative. In several encouraging instances, the law, and those charged with enforcing the law, effectively challenged ongoing racial inequities. Here's the year's best and worst in race and the law.

Best judicial opinion: With the U.S. prison population now topping 2 million people — the highest per capita prison population in the world — the Supreme Court's March 2011 decision in Brown v. Plata (pdf), ordering the state of California to reduce its prison population, threw a harsh light on prison overcrowding. Justice Anthony Kennedy's powerfully written opinion set out in detail how overcrowded prison populations endanger the physical and mental health of prisoners and violate the Eighth Amendment's ban on cruel and unusual punishment.

For good measure, the justice punctuated his indictment of one of the largest prison systems in the United States by including three photographs in the opinion that showed overcrowded conditions and cages where ill prisoners were left neglected. But the real punch of the decision comes in one short sentence that may live on as a lifeline to prisoners held in inhuman conditions everywhere: "Prisoners retain the essence of human dignity inherent in all persons."

Worst judicial opinion: In an opinion written by Justice Clarence Thomas, the Supreme Court held in Connick v. Thompson (pdf) that a man kept in solitary confinement on death row for 14 years could not sue and recover damages from the district attorney of New Orleans, whose office illegally withheld exculpatory evidence that would have demonstrated that he was innocent of the crime for which he was charged and subsequently convicted.

A New Orleans jury had awarded John Thompson $14 million — a million for every year he sat on death row. But the court held that former Orleans Parish District Attorney Harry Connick, who failed to properly train the attorneys in his department about their legal obligation to disclose exculpatory evidence, could not be sued for a "single incident" of misconduct resulting from the failure to train. The Orleans Parish district attorney's office is the prosecutor's office that just keeps giving; in the upcoming term, the court will decide Smith v. Cain (pdf) — yet another instance in which Orleans Parish prosecutors withheld exculpatory evidence that resulted in the conviction of a black man.

Best and worst reversal: In 2010 the 11th Circuit Court of Appeals threw out a jury verdict awarding compensatory and punitive damages to a black employee at a chicken-processing plant in Alabama who sued his employer for racial discrimination in promotions. Among the court's determinations was its decision that a white supervisor's reference to a black employee as "boy" was not a racist remark. The decision provoked outrage (including my own). Eleven leaders from the civil rights movement — including the Hon. Andrew Young, the Rev. Joseph Lowery and the now-deceased Rev. Fred Shuttlesworth — filed an amicus brief (pdf) with the court, educating the seemingly ignorant judges of the 11th Circuit on the racial significance of a white supervisor referring to his black adult male employee as "boy."


The 11th Circuit reconsidered its earlier decision and only last week decided to reverse it. That's a good thing, right? But in now deciding that "boy" could be a racist remark, the court also took a swipe at the civil rights stalwarts who wrote the amicus brief, accusing them of misstating an issue in the record (whether the plaintiff was present the second time the employer referred to him as "boy"). The court's remark was petty and disrespectful, and the tone of the opinion showed a court that, even in reversal, was unwilling to fully own up to its mistake.

But the best this year goes to Darren Hutchinson, whose Dissenting Justice blog can't be beat for fearless, thoughtful analysis of race, politics and law. His series, "Every Murder Victim Has a Story," is a hypnotic and powerful elegy to crime victims in the D.C.-Baltimore area — movingly focusing on matters not often addressed on legal blogs.                   


Best lecture on race and the law: There was a special poignancy to 2011's Derrick Bell Lecture. Bell, one of the most respected, loved and controversial figures in legal education, died on Oct. 5 at the age of 80. The eponymous annual lecture about race and the law at NYU Law School was packed to the gills the night before Bell's funeral.

The speaker, Berkeley Law professor Ian Haney López, delivered a dizzyingly spot-on analysis of how the concept of colorblindness has become the modern legal justification for the same arguments advanced as "states' rights" in earlier decades. Haney López's moving description of his early rejection of Bell's pessimistic views about race and his subsequent recognition of Bell's brilliantly prescient assessment of race and American politics moved the house to sustained applause.


Worst police department practice: Almost every young black man living in New York could identify with the powerfully disturbing essay by Nicholas K. Peart in the New York Times several weeks ago. Being stopped and frisked by the NYPD is a regular part of life for the city's minority male citizens. If the practice stays on pace, it's estimated that nearly 700,000 New Yorkers — 85 percent of them black or Latino men — will have been subjected to stop and frisk in 2011.

This common practice — of stopping and searching black and Latino men who have committed no crime or infraction — strips law-abiding black and Latino men of their full citizenship rights, sacrificing their freedom to walk unmolested on the streets of New York to the caprice of police officers. It sounds like a practice from a third-rate authoritarian state, not the most cosmopolitan city in the world's most powerful democracy.


The city's stop-and-frisk policies have an unintended consequence. These same black and Latino men have little incentive to provide police with the kinds of tips, witness identifications and assistance that the NYPD needs to solve real crimes. Fostering a relationship of hostility with the city's black and Latino male population is not only wrong; it's also not smart policing.

Best police-department action: Earlier this year, NYPD Commissioner Raymond Kelly decided to issue a directive to his force to discontinue the practice of making arrests of individuals in possession of small quantities of marijuana. New York City law treats the possession of small quantities of marijuana as an infraction, and even then only if the marijuana is burning or in public view. Under these circumstances, violators should receive only a citation. But police had routinely been arresting such individuals.


Moreover, the marijuana associated with these arrests was often not in plain view. Instead, officers would require individuals to empty their pockets or backpacks and then claim that the marijuana revealed pursuant to the illegal search was "in plain view." Commissioner Kelly's directive was clear and firm and is expected to greatly reduce arrests for these low-level violations, although this change will do little to help the hundreds of thousands of New Yorkers who have arrest records because of the failure of the department to adhere to the law. Kelly should now turn his attention to the department's more widespread stop-and-frisk practices.

Sherrilyn A. Ifill is a professor at the University of Maryland Francis King Carey School of Law in Baltimore and the author of On the Courthouse Lawn: Confronting the Legacy of Lynching in the 21st Century.