Waiting While Black in Philadelphia Can Get You Arrested

What happened in a Philadelphia Starbucks is another example of the indignities Black people face every day.

By Reggie Shuford, executive director, ACLU of Pennsylvania

(Image Via Twitter)

Late last week, two Black men in Philadelphia were doing what people do every day in this city — they waited in a coffee shop to meet an associate. While they were engaged in this mundane activity, they were removed from the Starbucks cafe at 18th and Spruce Streets in handcuffs by Philadelphia police officers.

This is another example of the kind of daily indignities that African-Americans face every day in Philadelphia and around the country. We can’t even wait in a coffee shop for a friend without the possibility that someone will call the police. Two days after the news broke of the incident, I’m angrier now than I was when I first heard about it.

The neighborhood where this incident occurred is known as Rittenhouse Square. For those not familiar with Philadelphia, it’s a tony neighborhood of beautiful townhouses and high-end apartment buildings.

It’s also the neighborhood with the highest rates of racial disparities in stops and frisks by police in all of Philadelphia. In 2010, the ACLU of Pennsylvania sued the city because the Philadelphia Police Department’s use of stop-and-frisk was discriminatory. Our data showed that African-Americans were far more likely to be stopped and frisked than their white counterparts. Making matters worse, those stops were often without any justifiable cause.

A year later, the city agreed to a consent decree to settle the case. That agreement requires the city to collect data on the PPD’s use of stop-and-frisk — including the demographic information of people who are stopped and the reasons why they were stopped — as well as to train officers to eliminate bias-based policing.

The police service area where the Starbucks is located has a Black population of just 3 percent. But 67 percent of the stops that occurred there in the first half of 2017 were of African-Americans. The two other police service areas in this district — known as District 9 — show similar lopsided disparities. In one of the bordering police service areas, a whopping 84 percent of pedestrians stopped were African-Americans in a neighborhood with a Black population of 16 percent.

Seven years after the city agreed to do better, we still see consistent racial disparities in stops and frisks. Yet, in a video statement in response to the incident, Philadelphia Police Commissioner Richard Ross had the nerve to say that his officers “did absolutely nothing wrong.”

His statement, the data the city has collected on stops, and this incident all lead me to wonder if Ross and his leaders in this district and this police service area, Capt. Danielle Vales and Lt. Jeffrey Rabinovitch, are serious about ending racial profiling in this neighborhood and throughout the city.

There was no need for a Starbucks employee to call 911 because two men were waiting for an associate in their store. And even after the police were called, the police did not have to end the situation by arresting these men. If Commissioner Ross is right that these officers followed policy, then the policy needs to change. Starbucks may be able to decide who sits in its store, but only the police could decide to arrest these men.

Racial bias and discrimination are so steeped in American culture that those of us who experience it on a regular basis have learned to live as second-class citizens in the country of our birth. Many folks have expressed pride or relief because the two men remained calm. I get that. I am glad, too. We have seen far too many incidents that have quickly spiraled out of control.

But there is an ugly side to that as well. Black people, men in particular, are not allowed the full range of emotional expression in public spaces. Even when an emotion other than being calm is warranted, we have been taught and have learned to police our emotions. No matter how badly we are being treated or how much our dignity is being assailed, we have to be the ones maintaining control and being responsible for de-escalating these situations.

We are not allowed to be angry. Or loud. Or boisterous. Or too happy or too celebratory. In other words, we’re not allowed to be human. We police ourselves because we know that others are already policing us. That, too, takes a toll.

As this story has gathered attention over the last three days, many people are doing back flips to justify what happened here. It is well past time to quit making excuses for racist behavior. Enough with the rationalizations and alternative theories. Believe us. We are credible messengers of our own truths and lived experiences. We shouldn’t have to rely on a white person or a video to validate us.

The work of defending civil liberties goes on

ACLU of Pennsylvania Executive Director Reggie Shuford addresses the crowd at the “Show Love for the Constitution” event. | February 15, 2017. (credit: Ben Bowens)

Dear supporter,

In some ways, our country changed on November 8. The United States elected a leader who, by all measures, is hostile to the basic foundations and principles that we stand for. President Trump and his regime deserve every ounce of pushback we can gather, and the ACLU will be on the front lines of the resistance.

And yet, at the ACLU of Pennsylvania, we have always taken the long view. Issues that are with us today were with us before November 8 and, to one degree or another, would have continued regardless of who was elected, including mass incarceration, police brutality, inequality for gay and transgender people, and efforts to compromise women’s access to reproductive healthcare.

You may have heard that there has been a major increase in giving to the ACLU since the election. While much of that growth has occurred at the national level, in fact, here in Pennsylvania, our membership has tripled. We saw a notable rise in donations after Election Day, but the real surge of giving happened after the weekend of the Muslim Ban. It was in that moment that many Pennsylvanians realized the significance of the threat to our values and to the people we most cherish.

You have put your trust in the ACLU in these challenging times. We are grateful for that trust and take it as a responsibility. Thank you.

The generous outpouring of support we’ve received in recent months has allowed us to think big about our work. It is my intention to add new staff to our existing staff of 22. Our current team has the talent, skills, and persistence to take on the many challenges before us. I also know that we can advance the cause of civil liberties throughout Pennsylvania by bringing even more talented people on board. The times demand it. Your support enables it.

In the months ahead, you’ll hear more about our Smart Justice campaign, our effort to reform, reinvent, and revamp the criminal justice system; our Transgender Public Education and Advocacy Project; the campaign for District Attorney in Philadelphia; the many bills we’re advocating for and against at the state capitol; and more litigation to push back against government excesses wherever they occur.

The ACLU of Pennsylvania is prepared to thwart the Trump administration’s worst instincts as they play out in the commonwealth.

And state and municipal officials aren’t off the hook. We’re working with immigrant communities to monitor federal immigration enforcement tactics while also standing with municipal governments that insist they won’t bend to every demand of ICE. We’re insisting that the commonwealth keeps its commitment to open beds for people who are too ill to stand trial and are being warehoused in local jails. We’re working at the state legislature to defeat efforts to hide the identity of police who seriously injure and kill people and to hide video that captures police brutality from the public. And we are active in ongoing struggles to diminish police presence in schools, to stop rollbacks of women’s reproductive healthcare, and to fight the practice of jailing people for their debts.

The ACLU of Pennsylvania has the infrastructure and the experience to defend civil rights at every turn. Consider some of our recent work:

  • Our legal team successfully freed travelers who were detained at Philadelphia International Airport the weekend of Muslim Ban 1.0, our advocacy team supported the protests at airports in Philly and Pittsburgh, and our communications staff echoed the message to #LetThemIn.
  • Two weeks ago, we settled a lawsuit against the School District of Lancaster for denying enrollment at its regular high school for older refugee students. Older refugee students will now be able to attend the regular high school instead of being segregated at an alternative school.
  • Over the last month, our legislative director has been busy at the state capitol in Harrisburg lobbying against efforts to reinstate mandatory minimum sentencing, which has been suspended for two years due to court rulings.
  • In tandem with allies, our advocacy team has launched the Philadelphia Coalition for a Just District Attorney, an effort to push the candidates for district attorney to commit to reforming the criminal justice system.
  • Last week, our lawyers filed to intervene to defend a school in Berks County that has been sued for affirming its students’ gender identity. We’re representing a transgender student and a youth advocacy organization who would be harmed if the lawsuit successfully overturns the school’s practice.

These five examples are just from the last two months. In fact, four of them happened in the last two weeks.

My favorite playwright, Pittsburgh native August Wilson, said this about gratitude in his play Two Trains Running:  “You walking around here with a ten-gallon bucket. Somebody put a little cupful in and you get mad ’cause it’s empty. You can’t go through life carrying a ten-gallon bucket. Get you a little cup. That’s all you need. Get you a little cup and somebody put a bit in and it’s half-full.”

Well, thanks to you, our ten-gallon bucket runneth over.

Onward!

Reggie Shuford
Executive Director, ACLU of Pennsylvania

Abu-Jamal Hep C treatment victory will benefit 7,000 PA state prison inmates

By Matt Stroud, Criminal Justice Researcher/Writer, ACLU of Pennsylvania

A federal judge has ordered Pennsylvania’s Department of Corrections to provide Mumia Abu-Jamal with hepatitis C treatment. Photo via The Inquirer.

In a victory for some 7,000 Pennsylvania state prison inmates, a federal judge this week ordered that Mumia Abu-Jamal — the activist and radio journalist serving a life sentence at a state prison in Frackville — should be treated for his hepatitis C infection.

Hepatitis C is pervasive in prisons; in Pennsylvania, about 14 percent of the state’s prisoner population is infected with it. But the only cures are produced by Gilead Sciences Inc., AbbVie Inc., and Merck & Co., which charge as much as $94,500 for complete treatment. In a remarkable opinion by Middle District Judge Robert D. Mariani, the judge was unmoved by the cost, which could rise to as much as $600 million if every one of Pennsylvania’s infected state prisoners receives treatment. “The only conceivable injury [the Pa. Department of Corrections] will suffer is monetary,” the judge wrote.

“As a result of the grant of this injunction,” he continued, “Defendants will be required to treat Plaintiff with expensive medication. While the Court is sensitive to the realities of budgetary constraints and the difficult decisions prison officials must make, the economics of providing this medication cannot outweigh the Eighth Amendment’s constitutional guarantee of adequate medical care.”

Bret Grote of the Abolitionist Law Center in Pittsburgh — which also collaborated with ACLU-PA on its recent lawsuit against Allegheny County Jail for its treatment of pregnant women — told The Inquirer that judge Mariani’s ruling was the first time “a federal court has ordered prison officials to provide an incarcerated patient with the new [hepatitis C] medications that came on the market in 2013.”

Grote and co-counsel Robert Boyle have no expectations that the case is over.

“We expect an appeal,” Grote wrote on Facebook following the opinion’s release, “but for now this is a major victory.”

IN OTHER NEWS

(The Pennsylvania criminal justice news that could use a second look.)

Bias is inevitable in criminal risk scores. ProPublica found that Bernard Parker, pictured left, was determined to be high risk; Dylan Fugett, on the right, was low risk.
  • From The Morning Call: “Glitch puts felony charge on Fountain Hill Man’s record”

“Ernesto Galarza went to court twice and won. He stood trial on a drug conspiracy charge and a Lehigh County jury found him not guilty. The New Jersey native sued the officials who improperly held him as an illegal immigrant after his arrest and changed the way local law enforcement agencies work with federal immigration authorities. But more than eight years after he was arrested at an Allentown construction site where police suspected his boss was selling drugs, the experience is still dragging him down.” Read more about Galarza’s 2010 ACLU case here.

  • From NBC News: “To End Decades on Death Row, [A Pennsylvania] Inmate Makes an Agonizing Choice”

“‘James Dennis entered a no-contest plea, not a guilty plea, because he maintains the same position that he has maintained for 25 years: that he is innocent of this crime,’ one of his lawyers, Karl Schwartz, told the judge. ‘He and his family have made this incredibly difficult decision based on his and their strong desire to have him home and free, [in] lieu of potentially years of continuing litigation.’ The no-contest plea is not uncommon in claims of wrongful conviction. It allows prosecutors to keep a conviction without a new trial. The defendant, meanwhile, acknowledges there may be enough evidence for another guilty verdict but can still claim innocence.”

  • From ProPublica: “Bias in Criminal Risk Scores Is Mathematically Inevitable, Researchers Say”

“Defendants inaccurately classed as ‘high risk’’ and deemed more likely to be arrested in the future may be treated more harshly than is just or necessary, said Alexandra Chouldechova, Assistant Professor of Statistics & Public Policy at Carnegie Mellon University, who also studied ProPublica’s COMPAS findings. Chouldechova said focusing on outcomes might be a better definition of fairness. To create equal outcomes, she said, ‘You would have to treat people differently.’ Chouldechova’s paper, ‘Fair prediction with disparate impact: A study of bias in recidivism prediction instruments,’ was posted online in October. Chouldechova is continuing to research ways to improve the likelihood of equal outcomes.”

  • From The Wall Street Journal: “Why Some Problem Cops Don’t Lose Their Badges: [An] examination shows how states allow some police officers to remain on the force despite misconduct”

“Pennsylvania has reported no officer decertifications since 2012 and just 31 in the past 12 years, according to data the state provided to the Journal. Cpl. Adam Reed, a spokesman for the Pennsylvania agency in charge of decertification, said the state’s law is ‘very specific’ as to when an officer can be decertified and the agency ‘does not act as an “internal affairs.”’

THE APPEAL — The Appeal is a weekly newsletter helping to keep you informed about criminal justice news in the Commonwealth of Pennsylvania and beyond. If you’d like to receive this weekly newsletter, you can subscribe here.

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ACLU Week in Review

By Ben Bowens, Communications Associate, ACLU of Pennsylvania

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June 15 – July 3

It’s been a pretty crazy couple of weeks for the ACLU of Pennsylvania. While the Pittsburgh and Harrisburg offices were getting accustomed to new spaces, we packed up the Philadelphia office, relocated to a new building across town and were just getting settled in when… *BOOM* The Supreme Court ruled in favor of equality and we were off to celebrate the freedom to marry at rallies across the state!!! This week in review (okay, more like “half-month review”) is chocked full of excellent ACLU content from the keystone state and beyond.

LOVE WINS!

June 26th: A Historic Day for Equality

June 26, 2015. Twelve years to the day after the Supreme Court struck down bans on sodomy in Lawrence v. Texas. Two years to the day after the Supreme Court struck down the Defense of Marriage Act in United States v. Windsor. Today, the Supreme Court of the United States has held that states may not deny marriage licenses to same-sex couples and must recognize same-sex couples’ existing marriages. read more…

Supreme Court Ruling Makes Same-Sex Marriage a Right Nationwide

The Directors Guild of America says networks and studios are to blame for the “deplorable” dearth of female directors in Hollywood, following a call by the American Civil Liberties Union for an investigation into the industry’s “systemic failure” to hire female directors. read more…

It’s time to “fix forfeiture”

ACLU of PA Welcomes Nationwide Effort to “Fix Forfeiture”

A group of national organizations announced their new nationwide effort to “fix forfeiture” in Harrisburg today, a move welcomed by the American Civil Liberties Union of Pennsylvania. The mission of the new coalition of ideologically diverse partners is to reform state and federal laws on civil asset forfeiture, a legal process that allows law enforcement to take and keep property it claims is connected to crime, without ever convicting or even charging the property owner with a crime. read more…

Registry for PA strippers

Baring it all: Pennsylvania lawmakers want a registry for strippers

Don’t tell his wife, but Big Brother is headed to the strip club. More than 60 state lawmakers are sponsoring a bill that would increase regulation over adult-oriented clubs, including a registry of strippers, banning alcohol and even creating a buffer zone between dancers and patrons that appears to effectively prohibit lap dances. read more…

House hunting while black

Black Americans unfairly targeted by banks before housing crisis, says ACLU

Black Americans were unequally issued loans on unfavorable terms during the sub-prime loan bonanza that prefigured the housing crisis and are still suffering in its aftermath, a new report from the American Civil Liberties Union has found. The resulting economic downturn has adversely affected them to a much greater degree than white homeowners, said the ACLU’s Rachel Goodman, who said the findings suggest banks knowingly preyed on black mortgage-seekers when it came to issuing sub-prime mortgages.read more…

Michigan launches Mobile Justice

ACLU of Michigan launches free app for recording, reporting police misconduct

Putting a high-tech twist on its long-time role as a government-accountability watchdog, the American Civil Liberties Union of Michigan announced recently the launch of Mobile Justice MI, a free downloadable mobile-device application that allows users to record and quickly report police misconduct. read more…

Another appeal for information about drone strikes

New York Times, ACLU Make Case For Access To Drone Strike Memos

The American Civil Liberties Union and the New York Times continued their fight in court Tuesday as they try to secure nine Department of Justice memos they believe outline the federal government’s legal justification for tactical drone strikes that have killed hundreds — including U.S. citizens — across the world. read more…

“Everyone’s a little bit racist”

By Paloma Wu, Legal Fellow, ACLU of Pennsylvania

iStock_000014186302_Small

At this American civil rights impasse, we are up against a powerful and dangerous fantasy: the delusion that our intention to be race neutral makes us so, and the delusion that our intention not to discriminate means we don’t. No longer are slur-hurling city officials, police-protected lynch mobs, and smoke-filled redlining rooms the most formidable force opposing equality in America. It is all of us.

A growing body of research on implicit racial bias shows that about 75% of whites and Asians demonstrate an implicit bias in favor of whites compared to blacks, and over 200 related published studies show that implicit bias influences judgment, decisions, and behavior. An onslaught of images, lore, and language continuously tie brown and black skin in with the negative. Implicit racial bias operates powerfully but in the background, at the unconscious level, impacting our judgment and shaping our decisions such that we often act contrary to our conscious intent to behave in a race neutral way. Most insidiously, our implicit racial bias calls the shots without us registering that it has. We reason away the race biased logic that formed the basis of our decision, and we cleave to the far more flattering race-blind version of ourselves that we deeply personally identify with.

Since taking the well-validated Implicit Association Tests (“IATs”), I cannot claim to be more sturdily built. I am ashamed, but not surprised, to learn that I strongly associated black people with having weapons on the Weapons-Harmless Objects IAT, and that was just the beginning. Despite who I am, what I have done with my life, who I intend to be, and that I am neither white nor male, I am a petri dish of implicit racial and gender bias. Sharing my corner of shame: most of the eight million IAT takers, including Malcom Gladwell. Gladwell, who is half black, deftly explained in his bestselling book, “Blink,” that his “moderate automatic preference for whites” on the IAT left him “feeling creepy.” For others, the revelation of racial bias is embarrassing, deeply humbling, and disturbing.

After you take a few IATs, consider this:

  • White Americans, on average, vastly overestimate the criminality of blacks.
  • Many Americans incorrectly believe that black Americans use more drugs than whites: five times as many white than black people use drugs in this country, but black Americans are sent to prison for drug offenses at 10 times the rate as white Americans.
  • “Shooter bias” studies show that black and white shooters both show bias against blacks in both response times and errors, meaning we will shoot black people more often and faster than we will whites.
  •  In shooter bias studies, we even pick up the pace if first shown a negative media article about a black perpetrator of a crime.
  •  Americans of all races more often see blacks as perpetrators and whites as victims; in one study, 70% of viewers of a crime story who falsely recalled seeing a picture of the perpetrator believed that perpetrator had been a black man.

Then consider how a blazing color line separates blacks and whites in crime and punishment:

A select few departments are trying to incorporate racial bias training to curb the tide, but the tide is nearly as powerful as our fantasy that it does not exist. The common refrain of police officers, elected officials, district attorneys, and policy makers with skin in this game is not “We Shall Overcome,” but rather—“We Did Not Intend.” But our knowledge about implicit racial bias in this era of political correctness renders the intent issue moot. Equal protection questions can only be addressed through data and analysis—do our laws in fact discriminate and are they in fact discriminatorily enforced. There is no silver bullet, but it is a necessary step, along with our acceptance of implicit racial bias as the norm: the unintentional constant that we must build in to any algorithm we use to formulate a next step—if we want it to be forward.

Also, feel free to sing along to this Avenue Q song, for a boost with the acceptance part…

(Stay tuned for Part 2 of this post: “The Effects of Implicit Racial Bias in Law Enforcement and Lessons from the Era of Anti-Lynching Legislation.”)

This post is part of a series in honor of Black History Month.

Paloma Wu joined the ACLU as an awardee of the 2014 Simpson Thacher & Bartlett LLP Public Service Fellowship. As a Simpson litigation associate, Paloma worked on antitrust, securities, and intellectual property matters, and she represented clients in successful prisoner civil rights (Pogue v. Diep) and asylum cases.

What We Know (and Don’t Know) about Racial Profiling in Pennsylvania

By Sara Rose, Staff Attorney, ACLU of Pennsylvania

Philadelphia Police - cruiser on Ben Franklin Parkway

Almost four years after Philadelphia agreed to reform its policing practices to reduce racial profiling, little improvement has been made. Philadelphia police still stop and frisk African-American and Hispanic pedestrians at rates substantially higher than whites. Philadelphia, unfortunately, is not alone in targeting minorities for stops and pat-downs. Most cities that keep data on pedestrian stops show similar disparities. Perhaps more troubling, however, is that few police departments require their officers to record any data on pedestrian stops or pat-down searches, making it impossible to know the breadth of the problem.

Racial profiling refers to the practice of targeting people for stops, interrogations and searches without evidence of criminal activity and based on individuals’ perceived race, ethnicity, nationality or religion. The U.S. Supreme Court has held that stopping an individual on account of his or her race, even if there is another legitimate reason for the stop, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.

Twenty years ago, much of the focus on racial profiling was on traffic stops following the I-95 “turnpike” studies, which showed huge disparities in the number of African-American drivers stopped by police compared to whites. Many law enforcement agencies, including the Pennsylvania State Police, now require officers to record data, including the race of drivers, when they conduct traffic stops. But there is no federal or Pennsylvania law that requires local police departments to keep data on traffic or pedestrian stops, even when police search the vehicle or person.

This lack of data leads to the perception that racial profiling is an urban myth. At a recent community forum in Pittsburgh, a police commander actually responded to a question about racial profiling by stating that “racial profiling does not exist.” But he had no way of knowing whether his officers engaged in racial profiling because Pittsburgh does not require its officers to record data on pedestrian stops.

Statewide legislation is needed to ensure that police departments track the race or ethnicity of individuals stopped by police and the reasons for those stops. The Fourth Amendment requires police officers to have reasonable suspicion that crime is afoot and that the individual stopped is involved in it before detaining that person on the street. To frisk the person, the police officer must have reasonable suspicion to believe that he or she has a weapon.

Our review of pedestrian stops in Philadelphia shows that 37 percent of the over 200,000 pedestrian stops in 2014 were made without reasonable suspicion to believe that the individual was involved in a crime, and only 47 percent of the frisks were made based on reasonable suspicion that the individual was armed. In 95 percent of all frisks, no evidence was seized.

These stops and frisks also disproportionately targeted minorities. Although Philadelphia’s population is 42.26 percent white, 43.22 percent black, and 8.5 percent Hispanic, 80.23 percent of stops were of minorities. The disparity was even greater for frisks, with minority residents accounting for 89.15 percent of frisks.

It is highly likely that similar rates of racial disparities and suspicionless stops would be found in other Pennsylvania cities if the data were available. A 2002 study that looked at vehicle and pedestrian stops by the Erie police over a six-month period found a significant racial disparity in vehicle stops, pedestrian stops, and searches. Indeed, essentially all studies of racial profiling find evidence of racial disparity. This had led to requirements that police departments collect and analyze data on stops. Seventeen states require police to collect data on traffic stops and thousands of police departments across the country collect pedestrian-stop data, including Chicago, Cincinnati, Dallas, Los Angeles, Miami, Milwaukee, New York, and San Francisco.

In addition to mandating that police departments collect and analyze data on stops, the Pennsylvania legislature can require police departments to implement practices that promote fair and impartial policing, including:

  • Having a detailed written policy that prohibits racial profiling and clearly defines acts constituting racial profiling;
  • Informing individuals that they have the right not to consent to a search; and
  • Barring the use of agency funds, equipment or personnel for the purpose of detecting noncitizens who are in violation of immigration laws and prohibiting officers from asking individuals about their immigration status.

The state can also mandate police officer training on racial profiling, both as part of officers’ initial training and their mandatory in-service training.

While these steps will not eliminate racial profiling, they will reveal where it is occurring and counter the “racial profiling does not exist” mindset of many in law enforcement. After all, choosing who to stop or search based on race or ethnicity is not an effective law-enforcement strategy. Although African Americans and Latinos are more likely to be stopped and searched by police than whites, they are less like to have weapons or contraband than whites who are searched. Law enforcement should be based on best practices, not stereotypes. Thirty other states have adopted laws addressing racial profiling. Pennsylvania should join them.

This blog post is part of a series for Black History Month.

Sara J. Rose is a staff attorney in the organization’s Pittsburgh office. Before joining the ACLU of Pennsylvania, she was a legal fellow with Americans United for Separation of Church and State.

It’s Time to Get Real About Race and the Death Penalty

By Andy Hoover, Legislative Director, ACLU of Pennsylvania

SQ Lethal Injection Room

Two weeks ago, Governor Wolf announced a moratorium on executions in Pennsylvania and granted a reprieve from execution to Terrance Williams, who was scheduled to be executed on March 4. Wolf will continue granting reprieves- a power he is granted by law – until an analysis commissioned by the state Senate returns with its recommendations and “all concerns are addressed satisfactorily.”

In his announcement of the moratorium, Wolf referred to capital punishment as “unjust” and cited several reasons for using the word. In his memorandum that explained the moratorium, he spent several paragraphs discussing the role of race in capital punishment.

Death penalty abolitionists don’t use race as one of their top tier messages, and who can blame them? A 2007 survey found that support for capital punishment actually goes up when white respondents hear messages of racial disparity. White America is still sticking its collective fingers in its ears when it comes to race and the criminal justice system.

Pennsylvania has consistently shown a penchant for sentencing black defendants to death. According to the Death Penalty Information Center, of the 188 people on death row in the commonwealth, 120 of them, or 64 percent, are people of color, as of October 1, 2014. Over the 15 years that I have been involved in death penalty repeal work, that number has been as high as 70 percent.

A study by Professor David Baldus and his colleagues at the University of Iowa found that a black defendant in Philadelphia was 3.9 times more likely to receive a death sentence than a white defendant in a similar case.

The Baldus study was 17 years ago and was based on data from 1983 to 1993. As part of the Senate-supported analysis, researchers are trying to update the question of race and the death penalty in Pennsylvania. Unfortunately, according to one of my sources, at least one high-profile district attorney stymied that work for months by refusing to release data from his county on race in capital cases. He was ultimately persuaded but only after much cajoling. Some public officials just don’t want to talk about facts in the death penalty debate.

The race of the victim may play an even greater role in deciding who lives and who dies. Homicide victims are white in about 50 percent cases. But since the Supreme Court reinstated the death penalty in 1976, the victims were white in 76 percent of cases that ended in execution.

There are many reasons why capital punishment is slowly being swept into the dustbin of history. Since 2007, six states have repealed their death penalty statutes, bringing the total of non-death states to 18. In 2014, only seven states carried out executions, and 80 percent of those were in three states. Governor Wolf did the right thing in bringing a halt to the machinery of death, and he used the right word to describe it- unjust.

To learn more about the debate over Pennsylvania’s moratorium on executions, check out the discussion on WITF-FM’s Smart Talk, which featured Spero Lappas, who is a member of the ACLU of PA’s South Central Chapter board, a retired criminal defense attorney, and former cooperating counsel with ACLU-PA.

Andy Hoover is the legislative director of the ACLU of Pennsylvania and is the former chair of the board of Pennsylvanians for Alternatives to the Death Penalty.

This blog post is part of a series for Black History Month.

Ferguson Is Everywhere

By Molly Tack-Hooper, Staff Attorney, ACLU of Pennsylvania

Ferguson Protest, NYC 25th Nov 2014 (15693825550)

You already know an unarmed black teenager, Michael Brown, was gunned down by a white officer, Darren Wilson, after the officer stopped Brown for jaywalking. You know the Ferguson Police Department is mostly white, in a mostly non-white community.

You certainly know about the outcome of Officer Wilson’s grand jury hearing, after an unusual process in which the prosecutor didn’t ask the grand jury to indict Officer Darren Wilson—and it didn’t.

And you also know about Eric Garner. That NYPD arrested him for selling untaxed cigarettes (“loosies”). That the police wrestled the unarmed man to the ground, and placed him in a chokehold that had been outlawed by the NYPD. You know that Garner repeatedly gasped “I can’t breathe” as he struggled to take in air, and was pronounced dead an hour later.

You know the incident was captured on videotape, and the officer who killed him was still not indicted.

You know all that. But to understand why these events resonated so strongly in the public consciousness and sparked protests all across the country, we need to talk not only about Michael Brown, and Eric Garner—and Akai Gurley, and Tamir Rice, and many thousands of other unarmed men of color killed by police. We need to talk about why most of the people killed by police in recent years have been people of color.

Ferguson is everywhere because all across the country, communities of color are disproportionately the target of police scrutiny and violence. “I can’t breathe” became a rallying cry for people throughout the nation who live every day under the oppressive weight of police practices and a criminal justice system that cast men of color as threats.

Over the past few decades, police departments across the country have turned to “preventive” policing strategies. Broken windows theory, order-maintenance policing, zero tolerance—these strategies have many names, but share an emphasis on pouring law enforcement resources into poor communities of color (so-called “high-crime” neighborhoods) to aggressively stop, frisk, and arrest lots of people for minor, non-violent, “quality-of-life” infractions. This means arresting people for offenses like curfew violations, open containers, littering, graffiti, and sleeping or urinating in public.

Data-driven police management—where police are judged by their COMPSTAT statistics, and how many stops and arrests they perform—creates further incentives for aggressive policing of minor offenses.

The result is that, throughout the United States, people of color are several times more likely to be stopped by police, frisked by police, and arrested by police than white people. Not because they’re more likely to commit crimes, but because of policing strategies that pit the police against communities of color.

Because black and Latino men are disproportionately likely to have an encounter with the police, police come to stereotype people of color as criminals—unconsciously or consciously. This bias then reinforces the decision to concentrate police resources in communities of color.

This dynamic is particularly troubling when combined with the lack of sufficient legal restrictions on when the police are allowed to use force, and the increasing militarization of police departments around the country.

Police are empowered to use violence—tasers, chokeholds, and even guns—when they interact with the community on the street. And around the country, para-military SWAT teams raid people’s homes in the dead of night, often just to search for drugs. These SWAT teams are deployed disproportionately in black and Latino neighborhoods.

In a system that treats police like the military and people of color as the enemy, it’s no wonder that police encounters with people of color too often turn deadly.

Unfortunately, officers who kill people of color are rarely indicted, and virtually never convicted of excessive use of force.

It should be a basic, uncontroversial truth that “Black Lives Matter.” But every day, the American criminal justice system is at odds with that proposition.

On February 7, 2015, Staff Attorney Molly Tack-Hooper moderated a panel at the Pennsylvania Progressive Summit in Harrisburg called “Ferguson Is Everywhere.” This is adapted from her introductory remarks.

This post is part of a series in honor of Black History Month.

The Point of Reparations

By Ryan Very, Legal Fellow, ACLU of Pennsylvania

Justice

In the past, the American Civil Liberties Union has supported proposed federal legislation that would recommend methods of monetary redress to African-Americans for slavery. Opponents of these ‘reparations’ commonly argue against them on the grounds that no person alive today was alive during slavery. A contemporary obligation to pay reparations would attribute “inherited guilt” to descendants of slaveholders, or so opponents maintain, and that would be preposterous.

These opponents mistakenly assume that reparations claims are derivative claims (i.e. designed to address wrongs that happened to other people long ago) that address private wrongs (i.e. wrongs between individuals). Reparations claims should not be viewed as derivative claims that address private wrongs but as claims that address the government’s continuing failure, as a matter of policy, to rectify slavery’s inequitable systemic legacy.

American racial subjugation hardly ended with ratification of the 13th, 14th, and 15th Amendments. President Lincoln’s successor, Andrew Johnson, was an open white supremacist who supported state governments’ establishment of “Black Codes” that coerced blacks back onto plantations. Jim Crow was sanctified by Plessy v. Ferguson in 1896 and was not dismantled until the latter half of the 20th century, which means that many African-Americans alive today lived under it. It was not until the Brown v. Board of Education decision of 1954 and the civil rights legislation of the 1960s that the federal government contemplated enforcing its “official” support of civil rights for blacks. After enduring 300 years of slavery and Jim Crow, an income gap continues to exist between African-Americans and their white counterparts, the wealth gap continues to expand, and federal agencies such as the Home Owners Loan Corporation and the Federal Housing Administration have “redlined” black neighborhoods by singling them out in order to deny them purchase loans and inflate their interest rates.

These wrongs are recent and have allowed the federal government to “reconfigure” racial subjugation so that it could survive the abolition of slavery. This is why reparations are not a matter of honoring debts incurred in the past, but a matter of holding the government accountable for its continuing perpetuation of racial inequality through its own policies. Arguments in favor of reparations need not hold descendants of slaveholders accountable for their ancestors, but may appeal to a principle that plays a basic role in American political thought and the ACLU’s mission to extend rights to segments of our population to which they have been traditionally denied.

This post is part of a series in honor of Black History Month.

This is a short version of an argument presented by my graduate school adviser and intellectual hero David Lyons in his new book Confronting Injustice: Moral History and Political Theory (Oxford, U.K.: Oxford University Press, 2013). See also his essay “Corrective Justice, Equal Opportunity, and the Legacy of Slavery and Jim Crow,” Boston University Law Review 84 (2004) 1375-1404.

Estranged Family: Black History Month and the Stigma of Gays in the Black Community

By Hollis Holmes, Legal Fellow, ACLU of Pennsylvania

(credit: All rights reserved by tnar/g/rant)

(credit: All rights reserved by tnar/g/rant)

My early experiences of Black History Month conjure up images of Martin Luther King Jr., Fredrick Douglass, and Harriet Tubman. I saw the same images year after year, with maybe a few controversial figures like Malcolm X and Muhammad Ali included. By fourth grade, I formed my opinion of the annual event as a limited and symbolic reminder of the contributions of my race to America. It wasn’t until my teens, while discovering my sexual identity, that I thought more seriously about this specific celebration of black figures. A teacher instructed us to write an essay on an influential person; however, I struggled to find an individual, both black and gay, whom I could relate to. Not seeing myself reflected in the celebration of Black History Month, I realized the black community fails to accept and even stigmatizes homosexuality.

Now, apparently support amongst black voters for same-sex marriage is approximately the same as whites. While a positive step, the black community still must understand that the fight for equality extends beyond marriage to basic civil rights. Black transgender people, isolated even within the LGBT community, particularly face shocking levels of discrimination and almost non-stop violence. While black LGBT people accounted for 73 per cent of the homicides in 2012 amongst the LGBT community, black transgender women accounted for the highest number of those murdered. The condition of black youth is also very appalling, where they disproportionately experience homelessness more than their white counterparts due in large part to family rejection and employment and educational discrimination.

In spite of this crisis for survival, black churches and pastors remain a pivotal force in hindering the expansion of gay rights. Reverend Patrick Wooden, a pastor of North Carolina, likened himself to Martin Luther King, Jr., after receiving a standing ovation from a 3,000 member congregation for his efforts in successfully passing a statewide amendment banning same-sex marriage. Other institutions mirror the opposition of the black churches. In spite of progress at a couple of black academic institutions, of more than 100 Historically Black Colleges and Universities across the United States, fewer than a quarter offer course listings with LGBT-related classes or formally recognize LGBT student groups. The lack of community support forces people to choose one side of an intersectional identity over the other, seeking refuge in the LGBT community while losing visibility in the black community. Even more, this shunning of black gay people comes across as ignorance to the fact that we still also endure the obstacles associated with the historical legacies of slavery, and on that basis alone need black community to share common experience.

Black History Month, a time when we celebrate black historical figures, reveals the stigma against black gays present in the black community. People left out of the dialogue include Audre Lorde, Bayard Rustin, Alvin Ailey, Basquiat, Josephine Baker… and the list goes on. Even if granted some visibility, the sexual orientation of figures like James Baldwin is often excluded or under-emphasized in public commentary. About her experience, Audre Lorde states, “I remember how being young and black and gay and lonely felt. A lot of it was fine, feeling I had the truth and the light and the key, but a lot of it was purely hell.” Feelings such as this persist, even though seemingly out of place with the recent expansion of gay rights.

Challenging America not to erase the contributions of black individuals from public consciousness depends on the efforts of the black community to value our own history. The support of President Obama and the NAACP for same-sex marriage provides an opportunity to internally address existing homophobia and embrace black gays, lesbians, bisexual, and transgender persons. In doing this work, the black community has the power to capitalize on the moment by alleviating the hypocrisy associated with the exclusion of black gays and redefine the black American legacy.

This post is part of a series in honor of Black History Month.