Trend of the United States Supreme Court Regarding the Right to Bear Arms

By Syreeta L. McNeal, CPA, JD

Second (2nd) Amendment of the United States Constitution states:

A well regulated Militia, being necessary to the security of a free state, the right of the people to keep and bear Arms, shall not be infringed.[1]

There are four recognized general considerations regarding the Second Amendment. The first view is that the Second Amendment is a limitation only on the federal government and not on states.[2] The second view is that the Second Amendment guarantees a collective right rather than an individual right.[3] The third view is that the Second Amendment guarantees an individual right rather than a collective right.[4] The final view is that the Second Amendment right is not applicable in absence of a reasonable relationship to a "well regulated militia."[5]

The buzz surrounding this week’s United States Supreme Court decision in District of Columbia v. Heller is relevant because it advocated, in a 5-4 decision, that the Second Amendment should be viewed under the third view which guarantees an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[6] This view should not be a surprise looking at the trend of rulings by the Supreme Court on the Second Amendment. To understand the significance of this decision, it is important to see how the United States Supreme Court has ruled over time on the Second Amendment and what view was the basis of the Court’s decision at that time.

Here is a summary of the cases rendered by the Supreme Court regarding the four general views:

Case Name (Year); View
U.S. v. Cruikshank (1875)[7]; 1
Presser v. People of State of Ill. (1886)[8]; 1
Miller v. State of Texas (1894)[9]; 1
U.S. v. Miller (1939)[10]; 4
Burton v. Sills (1969)[11]; 3
U.S. v. Bass (1971)[12]; 2
Lewis v. U.S. (1980)[13]; 3
District of Columbia v. Heller (2007)[14]; 3

Note:
· 1 = Second Amendment is limitation only on Federal Government and not on states
· 2 = Second Amendment guarantees a collective right rather than individual right
· 3 = Second Amendment guarantees an individual right rather than a collective right
· 4 = Second Amendment right is not applicable in absence of reasonable relationship to "well regulated militia."

As the chart indicates, from 1875 to 1894, the United States Supreme Court cases dealt with limiting the application of the Second Amendment on the federal government and not on the states. To understand this application, it is important to understand the makeup of the United States Supreme Court during this era. The United States just ended a civil war between the North and South in 1865. During the period of reconstruction, Radical Republicans gained control of both the Presidency and Congress and began to pass laws to expand legal rights for blacks with the passage of the Thirteenth (13th), Fourteenth (14th), and Fifteenth (15th) Amendments. Unlike these branches of the federal government, the Supreme Court had justices who were loyal to the Southern Confederacy. They hated the fact that the North won the Civil War and used their rulings to limit federal domination over the states. As a result, the cases passed from 1875 to 1894 reflect that trend.

In 1939, the Supreme Court appeared to have the case on the Second Amendment reflect the mood of the country being in the midst of World War II by limiting the right to bear arms to being used under a well regulated militia. From 1969 until the present, the trend has been for the Supreme Court to follow the third view allowing the Second Amendment to be an individual right, instead of a collective right except for one outlier in 1971. So, it should not be surprising that the latest Supreme Court case, District of Columbia v. Heller, guaranteed an individual right rather than a collective right as it applies to citizens keeping handguns and other firearms for private use in their homes.[15]

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. II
[2] Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[3] Id.
[4] Id.
[5] Id.
[6] District of Columbia v. Heller, ___ U.S. ____ (2007).
[7] U.S. v. Cruikshank, 92 U.S. 542 (1875). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[8] Presser v. People of State of Ill., 116 U.S. 252 (1886). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[9] Miller v. State of Texas, 153 U.S. 535 (1894). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[10] U.S. v. Miller, 307 U.S. 174 (1939). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[11] Burton v. Sills, 394 U.S. 812 (1969). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[12] U.S. v. Bass, 404 U.S. 336 (1971). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[13] Lewis v. U.S., 445 U.S. 55 (1980). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[14] District of Columbia v. Heller, ___ U.S. ____ (2007). See also Federal constitutional right to bear arms, 37 A.L.R. Fed. 696 (2008).
[15] District of Columbia v. Heller, ___ U.S. ____ (2007).

When is the Length of a Criminal Sentence Considered Cruel & Unusual Punishment?

By Syreeta L. McNeal, CPA, JD

Recently, YourBlackWorld.com blogger, Chiderah Aalisa, posted an article regarding the sentencing of Corey Devon Green to 297 years in prison for charges of attempted murder, kidnapping and theft of a vehicle in Dotham, Alabama. Many in the black community are outraged and can’t understand how Corey Green can be sentenced to 297 years in prison and this length of sentence not be considered “cruel and unusual” punishment. Well, this article is aimed to give information to the black community concerning the status of the law as it relates to the following issue: when is the length of a criminal sentence considered cruel and unusual punishment? To address this issue in context of the Corey Green sentence, the article will give general background regarding application of the Eighth Amendment of the United States Constitution and the status of Alabama law.

Background

Eighth (8th) Amendment of the United States Constitution states:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.[1]

Many authorities have recognized that the constitutional prohibition of cruel and unusual punishment is to be enforced in relation to modern concepts of what constitutes "cruelty" and what is "unusual" as of the present time.[2] Although constitutional provisions barring cruel and unusual punishment are primarily aimed at inhuman and barbarous penalties, such as those involving various kinds of physical torture, it is also true that the duration of punishment, as well as the kind of punishment, comes within the purview of the constitutional proscription.[3]

Accordingly, while punishment by fine and imprisonment is not per se cruel and unusual, yet, where the duration of a sentence of imprisonment imposed on one convicted of a crime is so disproportionate to the offense committed as to shock the moral sense of the community, the punishment is constitutionally impermissible.[4] Nevertheless, although circumstances may exist under which a sentence of imprisonment may be cruel and unusual, Courts have ruled that regardless of a sentence’s severity or length, a sentence of imprisonment within the limits of a statute where the statute is deemed valid and constitutional does not ordinarily amount to cruel and unusual punishment.[5]

Status of Alabama Law

Generally, a sentence within the limits of a valid statute ordinarily is not cruel and unusual punishment.[6] There are exceptions to this general rule. There are circumstances under which a sentence may be considered cruel and unusual punishment under Alabama law.

For example, in Wilson v. State, the Alabama Criminal Court of Appeals held that the statute mandating a sentence of life imprisonment without parole for a first drug offense of trafficking in morphine violated constitutional prohibition against cruel and unusual punishment, as applied to the defendant.[7] In Wilson, the Court outlined factors that may be considered in assessing the severity of crime, in connection with determination of whether the sentence is grossly disproportionate under constitutional prohibition against cruel and unusual punishment. The factors include consideration of the circumstances of the crime, the harm caused to the victim or to society, the culpability of the offender, and the offender's motive in committing the crime.[8]

As it relates to cumulative or consecutive sentences, Alabama courts have ruled that they do not represent cruel and unusual punishment. For example, in Jolly v. State, the Alabama Criminal Court of Appeals held that consecutive 20–year sentences for two counts of reckless manslaughter arising from a head–on collision did not violate the Eighth Amendment prohibition against cruel and unusual punishment.[9]

Summary

In Alabama, this is the current status of the law. Hopefully, those who are working to provide legal counsel to Corey Green in appeal of the Alabama trial court's sentencing will be able to see if there is a possibility to argue the case under a violation of the Eighth Amendment prohibition against cruel and unusual punishment.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. Const. amend. VIII.
[2] Am. Jur. 2d, Criminal Law § 611
[3] Am. Jur. 2d, Criminal Law § 612
[4] Am. Jur. 2d, Criminal Law §§ 612, 614
[5] Length of sentence as violation of constitutional provisions prohibiting cruel and unusual punishment, 33 A.L.R.3d 335 (2008). See also Tombrello v. State, 421 So. 2d 1319 (Ala. Crim. App. 1982).
[6] Tombrello v. State, 421 So. 2d 1319 (Ala. Crim. App. 1982).
[7] Wilson v. State, 830 So. 2d 765, 781 (Ala. Crim. App. 2001).
[8] Id. at 778.
[9] Jolly v. State, 858 So. 2d 305, 316 (Ala. Crim. App. 2002).

Supreme Court Rejects Death Penalty for Child Rapists

When Texas' leading politicians called loudly for the death penalty for repeat child rapists last year, they knew there was a good chance the U.S. Supreme Court might find the provision unconstitutional. Legal experts told them so – repeatedly.

And on Wednesday the Supreme Court, in a 5-4 decision in a Louisiana case, did just that, ruling that "the death penalty is not a proportional punishment for the rape of a child."

The decision didn't surprise many, said Shannon Edmonds, staff attorney for government relations with the Texas District and County Attorneys Association.

"A lot of legal experts had seen the writing on the wall from the Supreme Court," he said. "Whether those people, on both sides, agree with what the Supreme Court was going to do or not, didn't mean they didn't see it coming."

The decision does not entirely overturn Jessica's Law in Texas, the statute named after Jessica Lunsford, a Florida girl who was abducted and killed in 2005. The ruling invalidates the Texas death provision, but legislators created a fallback position in the statute: Life without parole would apply if capital punishment for child rape was outlawed.

Click to read more.

supreme court,black attorneys,black lawyers,african american attorneys,african american lawyers

Discrimination and the Workplace

By: Leland C. Abraham, Esq.

One of the least discussed national topics is discrimination in the workplace. Discrimination on the basis of race, national origin or sex occurs more than most Americans are led to believe. A few nuggets of knowledge concerning employment discrimination may help those who have been subject to discrimination protect themselves in their respective places of business.

Racial discrimination occurs when an employer makes job decisions on the basis of race. This occurs even when an employer adopts neutral job policies that disproportionately affect members of a particular race.

There are federal and state laws that prohibit race discrimination in every aspect of the employment relationship, including hiring, firing, promotions, compensation and any other terms or conditions of employment. For example, an employer commits racial discrimination when it refuses to hire blacks, promotes only whites, requires only Latinos to submit to drug tests, or refuses to allow Asian-Americans to interact with customers. An employer that discriminates on the basis of physical characteristics associated with a particular race, such as hair texture or skin color, also commits discrimination.

There are even employment practices that may seem neutral on the surface, but they are in fact discriminatory. For example, height requirements may eliminate a disproportionate number of Asian Americans or Latinos. Also, an employment policy that requires men to be clean shaven may discriminate against black men who are more likely to suffer from pseudofolliculitis barbae (a painful skin condition that is exacerbated by shaving). Most employers are aware that the majority of black men do not shave because of this condition. Rules or policies that have a disproportionate impact on a particular race will only pass muster, or be legitimate, if the employer can show that the negative impact that the policy has on the race adversely affected has a legitimate work related purpose. In short, there has to be a real work reason for the policy and it can’t be arbitrary.

Another arena of the employment process where discrimination is often present is in the area of promotions. There are many instances in which employees of color are passed over for promotions in favor of their white counterparts. Many of these employees of color state that their work performance is at the same quality of production as their colleagues who receive promotions. If this is true, the only difference between the employees of color who were passed over for the promotions and their white colleagues who received the promotions is race. If race is the deciding factor, this is a clear case of discrimination.

There are times, when the work conditions become so hostile that an employee is forced to leave his place of employment. When this happens, the employee will still have an action available to him called “constructive termination.” Constructive termination occurs when the conditions at the place of employment become so extreme that an employee cannot possibly remain employed with such an employer. The Equal Employment Opportunity Commission (EEOC) states that there are an increasing number of constructive termination suits that it prosecutes.

Whatever your profession, there has been someone of color who has experience some form of discrimination that paved the way for you to have the opportunity to employed. In honoring those who have paved the way, make sure that you don’t have to be subject to the same form of discrimination that they had to endure.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

It's the Jury, Stupid!

By Syreeta L. McNeal, CPA, JD

Sometimes people forget how the United States legal system works. Unlike my colleague who wrote the previous article projecting the untimely demise of R. Kelly in his Illinois criminal case of child pornography, I reserved any rush to judgment on the guilt or innocence of the accused. For one thing, I am not one of the jurors who is listening to the evidence presented by the Illinois prosecutor and the criminal defense attorney during trial. Second, the burden of proof for the Illinois prosecutor to meet to convict a person of a crime is not based on a "belief of one's guilt" but on what the Illinois prosecutor can actually prove, beyond a reasonable doubt, that the defendant did in fact commit the crimes alleged. Finally, if there is any reasonable doubt to any of the charges alleged and to any of the evidence that links the defendant to the crime, the jury must find the defendant not guilty by law.

So, instead of writing a long commentary to discuss the rationale behind R. Kelly's "not guilty" verdict on all fourteen (14) counts relating to child pornography, let's remember this basic premise that lawyers and non-lawyers alike should hold: withhold judgment unless the prosecutor has presented evidence to the jury (or judge), beyond a reasonable doubt, that the defendant did in fact do the crime charged.


Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

R. Kelly is Toast!

By Jamal C. Wright, Esq.

The talented R&B singer, who has been charged with multiple counts of possession of child pornography, is in the final days of the trial of his life in Chicago. Having beaten his first child pornography case in Florida in 2004 on a technicality, he is up against much tougher odds in this case. Namely, he’s up against strong evidence in the form of a certain infamous videotape.

During the Florida case about explicit photos, his attorneys argued successfully that the main evidence against him should be suppressed due to a faulty process of search and seizure. Prosecutors were defeated, citing the difficulties of connecting evidence to Kelly that the jury can’t even know exists. This time Kelly is facing more motivated prosecutors and up to fifteen (15) years in the slammer.

At the beginning of this trial in Chicago, the linchpin evidence didn’t get suppressed. The jury was forced to sit through the entire video. Not good. The defense was forced to resort to ridiculous assertions like the notion that the tape had been doctored or that it was someone else besides the world-famous Kelly, on the tape. Imagine that. One of the biggest stars in the world forced to deny his own image in a video that everybody knows is him. It’s like an episode of the Twilight Zone.

He’s toast.

But all the Kelly-funded children’s charities in the world won’t help me muster up an ounce of sympathy for him. Mostly because I think he’s guilty. But also because I believe he’s either stupid or crazy.

Crazy is more forgivable. He may be a sick man. Evidence certainly would support it. You don’t to have to Google his name to know what his reputation is. In an affidavit filed in a 2005 civil case, Jay-Z alleged that Kelly would treat tour audiences to videos of himself with young girls simulating sex acts. He makes videotapes of himself with underage females and allows the tapes out of his sight. Classic crazy. That reeks of someone who doesn’t know right from wrong, even after he was charged earlier for the same type of stuff in Florida. He certainly can’t control his fix.

If he’s sick, then he needs help and this situation is probably the best way for him to get it.

If he’s stupid, it’s unforgivable. It’s unforgivable because he’s blessed with the money to have the best management around him. The type of management that would advise him not to film himself committing felonies with a minor in a such a way that makes a prosecutor smile. A bunch of fellas that would tell him of all he had to lose.

It’s not over for Kelly. The case is scheduled to go to the jury very soon. Every case comes down to the jury’s view. They could view him as an honest business man getting hassled or as a charitable superstar. They could let him go. They could give him the opportunity to help himself on his own.

What can we learn from this?

Here’s the advice Kelly could’ve paid for, but you get for free.
Stay away from committing criminal acts, obviously. But if you absolutely must go criminal, never take pictures of yourself committing a crime. I cringe when I see young males in the inner-city taking pictures holding joints or drinking under age. Detectives and prosecutors have another name for these pictures. Evidence. I would expand this rule outside of law and say never take a picture doing something you would have trouble explaining to your eleven (11) year-old grand kid when you’re seventy-two (72). Once a picture hits the internet, it’s out of your hands forever the control over who sees it and under what context it is seen.

In essence, Myspace, is not really yours.

And it isn’t R Kelly’s either. He should’ve known that. But maybe he’s just crazy.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

You Should See Something Wrong With a Little Bump N’ Grind with Minors

By Syreeta L. McNeal, CPA, JD

R. Kelly had a smash hit with “Bump N’ Grind” in the 1990’s. However, when it comes to minor children, this type of sexual addiction has limits. Illinois may regulate child pornography since such material falls outside the protection of the First Amendment of the United States Constitution.[1] The crime of child pornography is an offense against the child and causes harm to the child’s physiological, emotional and mental health, resulting from a trespass against the dignity of the child, and is particularly harmful in that the child’s actions are reduced to a recording which could haunt the child in future years, especially in light of mass distribution system for child pornography.[2] However, the state’s right to regulate child pornography is limited; therefore, the law must adequately define the prohibited conduct, the category of prohibited “sexual conduct” must be suitably limited and described, the offense must be limited to works that visually depict sexual conduct by children below the specified age, and the element of scienter (a mental state consisting in an intent to deceive, manipulate or defraud) on the part of the defendant must be a component of the offense.[3]

People of Illinois are charging R. Kelly with the crime of child pornography. Section 11-20.1 of the Illinois Statute defines the elements, defenses, and sentencing for a person charged with the crime of child pornography.[4] The media attention devoted to this case is not to the level of O. J. Simpson, but for you media junkies who are interested in paying attention to the evidence presented, than continue watching. However, I want to shed light on what a jury would have to decide after hearing all the evidence in a court of law.

Here is an example of the Illinois pattern jury instruction for the charge of child pornography:[5]

Sample Illinois Pattern Jury Insturction on Child Pornography
To sustain the charge of child pornography, the State must prove the following propositions:

[1] First Proposition: That the defendant [ ( [ (filmed) (videotaped) (photographed) (depicted) (portrayed) ] by means of visual medium or reproduction) (depicted by computer) ] [ (a child he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]

[2] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, [ (reproduced) (disseminated) (offered to disseminate) (exhibited) (possessed with the intent to disseminate) ] a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[3] First Proposition: That the defendant with the knowledge of the [ (subject matter) (theme) ] thereof, produced a [ (stage play)(live performance)(film)(videotape)(depiction by computer) [or other similar visual portrayal]] which included [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[4] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ][ (a child whom he knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ][ (would be) (would be depicted, actually) (would be depicted, by simulation) ] in the following [ (act) (pose) (setting) ]: ;

[or]
[5] First Proposition: That the defendant was a [ (parent) (step-parent) (legal guardian) (other person having care or custody) ] of [ (a child whom the defendant knew or reasonably should have known to be under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] and that the defendant knowingly [ (permitted) (induced) (promoted) (arranged for) ] such [ (child) (institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live performance)(film)(videotape)(photograph)(depiction by computer) [or other similar visual [ (presentation) (portrayal) (simulation) ]] of the following [ (act) (activity) ]: ;

[or]
[6] First Proposition: That the defendant with the knowledge of the [ (nature) (content) ] thereof, possessed a [ (film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] of [ (a child) (an institutionalized severely or profoundly mentally retarded person) ] whom the defendant knew or reasonably should have known to be [ (under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ];

[or]
[7] First Proposition: That the defendant [ (solicited) (used) (persuaded) (induced) (enticed) (coerced) ] a person to provide [ (a child under the age of 18) (an institutionalized severely or profoundly mentally retarded person) ] to appear in a [ (stage play)(live presentation)(film)(videotape)(photograph)(depiction by computer) [or other similar visual reproduction]] in which the [ (child) (institutionalized severely or profoundly mentally retarded person) ] would be depicted, actually or by simulation: ;

And

[a] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual intercourse with [ (a person) (an animal) ].

[or]
[b] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the sex organs of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the [ (mouth) (anus) (sex organs) ] of another [ (person) (animal) ].

[or]
[c] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of sexual contact involving the [ (mouth) (anus) (sex organs) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) ] and the sex organs of another [ (person) (animal) ].

[or]
[d] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of masturbation.

[or]
[e] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was portrayed as [ (being the object of) (otherwise engaged in) ] an act of lewd [ (fondling) (touching) (caressing) ] involving another [ (person) (animal) ].

[or]
[f] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation engaged in an act of [ (excretion) (urination) ] within a sexual context.

[or]
[g] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] actually or by simulation was [ (portrayed) (depicted) ] as [ (bound) (fettered) (subject to sadistic abuse) (subject to masochistic abuse) (subject to sadomasochistic abuse) ] in a sexual context.

[or]
[h] Second Proposition: That such [ (child) (institutionalized severely or profoundly mentally retarded person) ] was [ (depicted) (portrayed) ] in a [ (pose) (posture) (setting) ] involving a lewd exhibition of the [ (unclothed genitals) (pubic area) (buttocks) (a fully or partially developed breast) ] of the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] [if the [ (child) (institutionalized severely or profoundly mentally retarded person) (other person) ] is a female].

If you find from your consideration of all the evidence that each one of these propositions has been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find the defendant not guilty.

As the sample jury instruction shows, the prosecutor has to persuade the jury with the evidence, beyond a reasonable doubt, that the defendant did one of the seven first propositions [(1) - (7)] and one of the eight second propositions [(a)-(h)] to be guilty of child pornography. Beyond a reasonable doubt represents a very high standard and in numeric terms, this standard represents that the evidence presented in trial has to convince the jury (or judge) by more than 99% that the defendant did in fact do the crime alleged. If the jury (or judge) has any doubt regarding the credibility of the evidence presented by the federal or state prosecutor, they usually find the defendant not guilty. The rationale for this high standard in a criminal case is that our legal system feels it is far worse to convict an innocent man on suspect and unreliable evidence.

A defendant does have defenses to the Illinois statute of child pornography. If the defendant can disprove or raise reasonable doubt of each of the first and second propositions of the jury instructions, than the defendant is more likely to be found not guilty of child pornography. Also, the defendant can assert affirmative defenses which will serve the same effect. Here is an example of the Illinois pattern jury instruction for the affirmative defenses to child pornography:[6]

Sample Illinois Pattern Jury Instruction on Affirmative Defenses for Child Pornography

[1] It is a defense to a charge of child pornography that the defendant reasonably believed, under all of the circumstances, that the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] but only where, prior to the act or acts giving rise to prosecution, he [ (took some affirmative action) (made a bona fide inquiry) ] designed to ascertain whether the [ (child was 18 years of age or older) (person was not an institutionalized severely or profoundly mentally retarded person) ] and his reliance upon the information so obtained was clearly reasonable.

[or]
[2] It is a defense to a charge of child pornography that the defendant was employed by [ (a public library) (any library operated by an institution accredited by a generally recognized accrediting agency) ] at the time the act leading to the charge of child pornography took place and such act was committed during the course of employment.

[or]
[3] The charge of child pornography shall not apply to the performance of official duties by [ (law enforcement officers)(prosecuting officers)(court personnel)(attorneys) (bona fide treatment programs conducted by licensed physicians) (bona fide treatment programs conducted by licensed psychologists) (bona fide treatment programs conducted by licensed social workers) (professional education programs conducted by licensed physicians)(professional education programs conducted by licensed psychologists)(professional education programs conducted by licensed social workers) ].

This is what the jury will be doing with the evidence that is presented in R. Kelly’s trial. I am reserving any views of guilt or innocence as we our instructed by law to do. Everyone is presumed innocent until proven guilty by the state prosecutors in a court of law. To reach that end, now you have a preview of what a jury will use to decide whether or not R. Kelly is guilty of child pornography.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] People v. Lamborn, 708 N.E.2d 350 (Ill. 1999).
[2] Id.
[3] Id.
[4] Ill. Comp. Stat. 5/11-20.1 (2005).
[5] Ill. Pattern Jury Instr.-Criminal 9.30 (4th ed. 2006)
[6] Ill. Pattern Jury Instr.-Criminal 9.29A (4th ed. 2006)

Divorce and the Black Family

By Leland C. Abraham, Esq.

Divorce among couples in the U.S. has seen a steady rise in the past two decades. There has also been an increase in the number of individuals raised in single-parent households. This “epidemic” of divorce has especially affected the black family. Over the last thirty (30) years, the foundation of the black family has seen a significant change. In that time span, the proportion of black couples who have divorced has increased and the proportion of black couples who have married has declined.

At the current rate, two-thirds (2/3) of all black marriages will end in divorce, and two-thirds (2/3) of black children will experience the dissolution of their parents’ marriage before they reach the age of sixteen (16). Because the divorce rates are so high, it behooves young couples to know a few things about divorce laws in order to protect themselves if, and when, divorce appears to be their only option.

Most states are “no-fault” states. This means that a court of law, considering the merits of a divorce, will not consider certain “amoral” acts when deciding on the divorce. For example, Missouri is a no-fault state. In the Associate Circuit Division that considers the merits of a divorce, adultery will rarely be considered when dividing the assets or deciding who gets custody of the children.

Most courts seek to establish a “fair and equitable” distribution of the assets and debts. Courts have put this standard in place so that participants of the divorce will not be “taken to the cleaners.” In times past, the primary income earner would be required to pay alimony (monthly payments to the non-primary income earner) in addition to child support. Today, in no-fault states, if a court does award a spouse alimony (today referred to as “maintenance”) it will be a temporary order. It will only buy the receiving spouse some time to find employment and provide for his/her own welfare. Generally, Courts will not tack-on, or add, child support to the figure arrived for maintenance. Maintenance will always be for the welfare of the spouse and will not include the needs of the child. However, there is a separate action that will provide for the needs of the child. This is often accomplished with a petition for child support. In Missouri, child support is determined by State Form 14, which includes the income of both parents and the expenses of the child that are not covered by insurance.

Most men of my generation have a concern that child support is not always spent for the welfare of the child. Unfortunately, there is no legal “soothing” for their concern as there is no court order which dictates how child support has to be spent. Often times, the custodial parent, or the parent who is receiving child support, spends the monthly child support on bills or other expenses that may not provide a benefit “directly” to the child. This does not break the law in anyway as there is usually no stipulation within a child support order that directs how the money is to be spent.

The child support orders are usually in effect until there is a changed circumstance. This may occur if the spouse who receives child support gets a higher paying job. Generally, if the paying spouse loses his or her job, there will not be an amendment to the child support order. This means that if the child support amount was determined with an estimated yearly income of $80,000 and the spouse now only makes $60,000, that spouse will be responsible for child support as if he or she made $80,000. In the case of child support, the court looks after the “best interest” of the child. The court considers the standard of living that the child would have received had the parents not divorced and it tries to put the child in the financial situation that the child would have been in had the parents not been divorced. The court feels that the child should not have to suffer because the parents could not work out their differences.

Another way in which a child support order may be terminated is the emancipation of the child. This may occur when the child becomes eighteen (18) years old, if the child does not attend college. If the child does attend college, the support order will usually continue until the child either graduates or spends four years at the university, whichever comes first. Another way that a child may become emancipated is by becoming married. States vary on laws concerning the marriage of minors and emancipation age.

The unfortunate scenario for the black family is the divorce rate appears to increase as the years go by. In 1970, sixty-eight percent (68%) of black families had two parents in the home. This number dropped to fifty percent (50%) by 1990. This is an eighteen percent (18%) decrease in a twenty (20) year period compared to a six percent (6%) decrease in white families. Black husbands and wives are also more likely to separate. Some sixteen percent (16%) of black couples between the ages of eighteen (18) to forty-four (44) have separated versus some four percent (4%) of white couples. These divorce and separation rates persist and it appears that these rates are independent of education and parental marital status. Since the divorce and separation rates do not appear to stagnate, education concerning the structure of divorce is perhaps the next step for the black family. This article is one step in that direction.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Free Speech v. Punishable Crimes: The Thin Line That Divides

By Syreeta LaShawn McNeal, CPA, JD

People fear the worst possible scenario that Senator Obama will be assassinated as he seeks to be President of the United States of America. If the increased secret service presence for Senator Obama, noose sightings since his presidential announcement in May 2007, and recent comments by former Arkansas Governor and former Republican presidential nominee, Mike Huckabee, talking about pointing a gun at Senator Obama while he is on the floor at a televised NRA meeting does not hasten those fears, then those who truly support Senator Obama are not understanding that this is the reality for any black man deciding to attain the highest office in the land over their white counterparts.

I love the fact that my dear brother, Dr. Boyce Watkins, is trying to find out whether Fox Contributor Liz Trotta’s personal comments about assassinating Senator Obama and Osama Bin Laden qualify as a particular crime with his recent entry on May 26, 2008. Dr. Watkins even highlighted a federal statute, 18 U.S.C. § 373(a), to see if there is any validity to federal prosecutors bringing a case against Trotta.

Well, the issue is whether Trotta’s statements on the Fox News broadcast is a form of free speech protected under the First Amendment of the U. S. Constitution or is it a solicitation of a crime, punishable in the federal courts?

To tackle this issue, this article will give a background of First Amendment protections of the U.S. Constitution on free speech. Next, this article will analyze the intent of 18 U.S.C. § 373 as identified in the United States Court of Appeals for the Ninth Circuit's ruling in U. S. v. Devorkin in 1998. Finally, this article will analyze whether Trotta’s statements fall into free speech or solicitation of crime, punishable under the law.

Free Speech Under the First Amendment of the U. S. Constitution

Under the First Amendment of the U. S. Constitution, citizens are allowed to speak freely in praise or criticism of their government and its leaders without fear of prosecution. The founding fathers ensured this guarantee in the original Bills of Rights to the U. S. Constitution because many of the American revolutionaries were persecuted for criticizing King George of Great Britain.

Free speech does have limitations. Federal and state governments are allowed to regulate this protected right as long as it is narrowly tailored to protecting the health, safety, and welfare of its citizens. For example, you can’t yell “fire” in a crowded theater for fear that this action will cause great danger for the health and safety of its theater occupants. If a person does yell fire in a crowded theater, the act is punishable by fine or jail under either state or federal law.

Legislative Intent of 18 U.S.C. § 373

18 U.S.C. § 373 states as follows:

(a) Whoever, with intent that another person engage in conduct constituting a felony that has as an element the use, attempted use, or threatened use of physical force against property or against the person of another in violation of the laws of the United States, and under circumstances highly corroborative of that intent, solicits, commands, induces, or otherwise endeavors to persuade such other person to engage in such conduct, shall be imprisoned not more than one-half the maximum term of imprisonment or (notwithstanding section 3571) fined not more than one-half of the maximum fine prescribed for the punishment of the crime solicited, or both; or if the crime solicited is punishable by life imprisonment or death, shall be imprisoned for not more than twenty years.

(b) It is an affirmative defense to a prosecution under this section that, under circumstances manifesting a voluntary and complete renunciation of his criminal intent, the defendant prevented the commission of the crime solicited. A renunciation is not "voluntary and complete" if it is motivated in whole or in part by a decision to postpone the commission of the crime until another time or to substitute another victim or another but similar objective. If the defendant raises the affirmative defense at trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

(c) It is not a defense to a prosecution under this section that the person solicited could not be convicted of the crime because he lacked the state of mind required for its commission, because he was incompetent or irresponsible, or because he is immune from prosecution or is not subject to prosecution.

To non-lawyers viewing this statute, many people think there is a possibility that Trotta could be prosecuted under 18 U.S.C. § 373. However, examining the United States Court of Appeals for the Ninth Circuit ruling in U. S. v. Devorkin in 1998 would show that this is less likely to occur.[1]

The facts of the case are Devorkin, a Montana resident, contacted a confidential informant and asked him to kill Karen Ramsey, Devorkin's former spouse, who lived in Seattle, Washington.[2] In return, Devorkin offered to kill the informant's former son-in-law.[3] The informant contacted law enforcement officials and, after several monitored conversations with Devorkin, he introduced Devorkin to Special Agent Gunderson of the Bureau of Alcohol, Tobacco, and Firearms, who posed as a "hit man."[4] At a motel in Montana, Devorkin gave Gunderson $500, one-half of the $1,000 fee to commit the murder, and photographs of Ramsey.[5] Devorkin was arrested at a second meeting with Gunderson at which Gunderson falsely told Devorkin that he had murdered Ramsey.[6]

In Devorkin, the legislative history sheds light on the intent of 18 U.S.C. § 373. The Court asserted that the Senate Judiciary Committee's report clearly indicates that the provision was intended to reach persons who solicited crimes, but were unsuccessful, and that other provisions were in place to deal with the situation when the crime solicited was completed:

The Committee believes that a person who makes a serious effort to induce another person to commit a crime of violence is a clearly dangerous person and that his act deserves criminal sanctions whether or not the crime of violence is actually committed. The principal purpose of the new section is to allow law enforcement officials to intervene at an early stage where there has been a clear demonstration of an individual's criminal intent and danger to society. Of course, if the person solicited actually carries out the crime, the solicitor is punishable as an aider and abettor. S. Rep. No. 98-225, at 308 (1983), reprinted in 1984 U.S.C.C.A.N. 3182, 3487.[7]

Application of 18 U.S.C. § 373 to Liz Trotta’s Statements on Fox News

In contrast to Devorkin, Trotta stated on a Fox News broadcast that she wishes both Osama and Obama were assassinated in a joking manner. Under 18 U.S.C. § 373, this would not rise to the level of Trotta’s statement being a clear demonstration of an individual’s criminal intent and danger to society. She said it while laughing. Also, she did not publicly tell people that she would pay money to anyone who assassinated Obama and then actually pay money to the person as done in Devorkin.

Trotta’s comments are more comparable to Fox News Contributor Bill O’Reilly’s comments about creating a lynching party on Michelle Obama if she did not have pride in her country until now was true. Also, Trotta’s comments are comparable to ESPN Golf Channel anchor Kelly Tilghman’s comments about lynching Tiger Woods in a back alley. O’Reilly and Tilghman were not brought up on federal or state criminal charges for soliciting perceived violence against people or government entities. Their statements are protected under the First Amendment protections of free speech. Like American revolutionaries, these people are free to express their opinions about people as long as they do not clearly demonstrate an individual’s criminal intent to harm a person or danger to society.

So, Dr. Watkins, you probably will not be successful in getting a federal prosecutor to bring up charges against Trotta under 18 U.S.C. § 373. More appropriate action you can take is to protest the network and have Trotta publicly apologize or be suspended for her comments by the network. O’Reilly and Tilghman experienced this later action. But, criminal prosecution for these statements is highly unlikely.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

[1] U.S. v. Devorkin, 159 F.3d 465 (9th Cir. 1998)
[2] Id. at 466.
[3] Id.
[4] Id.
[5] Id.
[6] Id.
[7] Id.

The Incarceration of the Races

By: Leland C. Abraham, Esq.

It has long been the opinion of many that minorities have an unfavorable position when they are defendants in a court of law. Many feel that black males, in particular, are at a disadvantage when it comes to the pursuit of justice. It has long been determined that Blacks and Hispanics are disproportionately represented in the U.S. prison populations. Determining why that is has become a difficult task.

The disparity in minority populations represented in the prison system versus the white population has caught the eye of several human rights organizations. One such organization is Human Right’s Watch. Human Right’s Watch researched prison populations across the country and discovered that, on a state by state basis, there is a dramatic disparity between the percentage of Blacks and Latinos behind bars and their White counter-parts. According to the Human Right’s Watch, in 2002, Blacks and Hispanics make up sixty-two (62) percent of the U.S. incarcerated population, while only accounting for twenty-five (25) percent of the total U.S. population. According to the Human Right’s Watch’s research, between ten (10) and fifteen (15) percent of the total Black population is incarcerated in twelve (12) states (Colorado, Iowa, Kansas, Kentucky, Oklahoma, Oregon, Pennsylvania, South Dakota, Texas, West Virginia, Wisconsin, and Wyoming). Black women are incarcerated at rates between ten (10) and thirty-five (35) times higher than their White counter-parts in fifteen (15) states (Colorado, Connecticut, Illinois, Iowa, Maine, New Jersey, New Mexico, New York, Rhode Island, Texas, Vermont, West Virginia, Wisconsin, and Wyoming).

This disparity will lead many to wonder about the integrity of the justice system. Incarceration is the result of a finding of guilt in a criminal court. Criminal Courts have a higher burden of proof than their Civil Court counter-parts. In a criminal matter, a defendant may only be found guilty in three ways: A guilty plea, a conviction by a jury of the defendant’s peers, or a verdict of guilty from a bench trial (a trial in which a single judge determines guilt or innocence). Based on the statistics that the Human Right’s Watch has compiled, it does appear that Blacks have been “found guilty” in criminal court rooms at a higher rate than Whites have. This disparity can be attributable to many different factors, but one central factor may account for why Blacks continue to receive the “short end’ of the legal stick.

The burden of proof in criminal cases is “beyond a reasonable doubt.” This means that a prosecutor has to prove that there is no doubt that the defendant committed the charged crime. Historically, this standard has been proven to not be a proper bench-mark for justice in the annals of American Jurisprudence when it pertains to Blacks and Hispanics. Over the last five (5) to seven (7) years, there have been many cases in which defendants were serving sentences, only to have those sentences overturned because of some exonerating evidence. When one does an analysis of these cases, many of these defendants claimed to have had alibis during the time the crimes were committed, but these claims went unheard. As a result, many Blacks were convicted of crimes in which they were innocent.

Although there have been many legal reforms since the advent of Civil Rights legislation in the 1960s, many feel that nothing has really changed in the scope of the justice system. While many would tell these “skeptics” of the legal system that their claims have no merit, an analysis of recent court decisions may lead some credence to these claims. One such instance is the case of Shaquanda Cotton. Cotton, a 15 year old resident of Paris, Texas, was given a sentence of seven (7) years imprisonment for pushing a school monitor. Many argue that the punishment does not fit the crime in this case. Cotton, who had a medical condition that required a morning medicine dosage, was eager to get to the nurse’s office before school started. Cotton attempted to press past the school monitor, a 58 year old Caucasian woman, and was shoved by the monitor. In a retaliatory effort, Cotton shoved the woman back and was subsequently arrested. Once her case went to trial, she was given a sentence of seven (7) years imprisonment. Many in the community felt this was a miscarriage of justice because the same judge who sentenced Cotton to seven (7) years imprisonment, sentenced a 14 year old White girl to probation for burning down the family home three (3) months before he decided the Cotton case.

The Cotton case is one of many examples where there is a perceived bias within the justice system. Although Blacks have made much progress since the advent of the Civil Rights legislation, there still appears to be a systematic discrepancy in treatment between the White population and the Black and Hispanic populations when it comes to the justice system. Until this inequity is rectified, there will continue to be a disparity among the races in prison populations.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Sean Bell Situation: Justice has Many Layers in the U. S. Legal System

By Syreeta LaShawn McNeal, CPA, JD

Gary Haugen states “God has a plan to help bring justice to the world -- and his plan is us.” The tragedy of the announcement of the acquittal of all three New York police officers in the New York state criminal system in the slaying of Sean Bell is sending shock, grief, and outrage from Sean Bell’s family to the extended African-American community in all arenas. This article is intended to inform and affirm that justice is not solely found in this single state criminal verdict issued on April 25, 2008. Justice has many layers and it is up to legal professionals to give sound and objective information so that the Bell family and larger African-American community understands the various layers of justice in the U. S. legal system and how we should tactically understand the pros and cons of each and pursue all avenues that will bring the justice that Sean Bell and his family deserves.

Overview of the U. S. Legal System

The American legal system has several layers. The first layer is the division between federal and state law. Another layer is the division between the criminal and civil system. The graphic below outlines a representation that can apply to the Sean Bell situation.

The verdict announced on April 25, 2008 specifically addressed the New York state criminal system only. Therefore, Sean Bell’s family still has a variety of options in the New York state civil or federal criminal and/or civil systems.

Burden of Proofs within Criminal & Civil System

The burden of proof for either a state or federal prosecutor to win their criminal case is vastly different from the burden of proof required for a plaintiff, like the family of Sean Bell, to win a civil case. The burden of proof required in a criminal case is that the prosecutor has to put forth evidence that persuades a judge or jury that the defendant is guilty beyond a reasonable doubt of the charges alleged. Beyond a reasonable doubt represents a very high standard and in numeric terms, this standard represents that the evidence presented in trial has to convince the judge or jury by more than 99% that the defendant did in fact do the crime alleged. If the judge or jury has any doubt regarding the credibility of the evidence presented by the federal or state prosecutor, they usually find the defendant not guilty. The rationale for this high standard in a criminal case is that our legal system feels it is far worse to convict an innocent man on suspect and unreliable evidence.

In contrast, the burden of proof required in a civil case is that a plaintiff must present evidence that persuades a judge or jury that the defendant did the charges alleged by a preponderance of the evidence. This civil standard is a lesser standard than the criminal standard and on a numeric scale the plaintiff has to present evidence that convinces the judge or jury by more than 51% that the defendant did the charges alleged.

So, the verdict in the Sean Bell case issued on April 25, 2008 that acquitted the three New York police officers resulted from the fact that the judge did not feel the evidence the prosecutor presented was credible and reliable for him to convict the defendants beyond a reasonable doubt.

Conclusion

The message for the family of Sean Bell and the African-American community at large is to not loose hope for justice legally. It hurts for everyone here because it shocks the conscience that an unarmed, young man should be shot 50 times by undercover police officers without receiving some type of vindication, like a guilty verdict, in the New York criminal case recently presented. However, legal professionals must ensure that they inform the family of Sean Bell and the African-American community to use a variety of legal options available. There is no guarantee of victory for any legal case brought in our judicial system. Justice has many layers and our U. S. legal system does act as a system of checks and balances to ensure that a balancing act is instituted dealing with people representing victims and the accused. Pursue all legal options available to ensure that you can seek justice even though one venue has closed the door.

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

The Affirmative Action Plan

By Leland C. Abraham, Esq.

One of the most controversial topics in our society is the issue of Affirmative Action. Affirmative Action is a measure that was instituted to promote access to education and employment opportunities for socio-economic disadvantaged citizens and minorities. The motivation behind the proponents of Affirmative Action is to cure some of the effects of past discrimination to these “non-dominant” groups for example African-Americans, Hispanics, and Native Americans. Since the advent of Affirmative Action measures, there has been an increase in diversity in employment and university attendance.

Affirmative Action is often achieved with recruitment programs that target those persons who come from historically oppressed groups. Critics of Affirmative Action argue that Affirmative Action is another form of discrimination in that it is based solely on race and that often times “qualified” applicants are denied positions in favor of “less qualified” applicants. Critics also argue that this is a form of “preferential” treatment and it puts the majority race at a disadvantage.

The critics of Affirmative Action are not all members of the majority race. In fact, growing number of critics of Affirmative Action come from members of the non-majority (or minority) races that Affirmative Action was intended to aid. One such minority critic is Ward Connerly. Connerly is a University of California Regent and he is one the biggest proponents for overturning Affirmative Action measures. Another prestigious African-American opponent to Affirmative Action is United States Supreme Court Justice Clarence Thomas. Justice Clarence Thomas has been an Associate Justice on the Supreme Court of the United States since 1991. He is a Republican (or conservative) justice who often rules on the side of conservatism in his opinions. When questioned about his opinion concerning Affirmative Action, Justice Thomas cites his own personal experiences with Affirmative Action.

Justice Clarence Thomas graduated from Yale Law School in 1974. Upon graduating, he could not secure employment at the prestigious law firms that his fellow classmates were able to find fairly quickly. In fact, the only position of employment he could secure was a position with the Attorney General’s Office in Missouri. Justice Thomas has stated that he believes that the reason that he could not secure employment at the major law firms following his graduation from law school is because employers viewed all if his accomplishments as a result of “preferential” treatment. In short, he believed that potential employers were of the opinion that he did not “earn” his law degree and that he was socially promoted to academic success. He believes that if there is no Affirmative Action, employers could not hide behind the veil of discrediting the accomplishments of African-Americans and it would force employers to review minority applicants in the same manner as majority applicants.

The analysis of Justice Thomas, while at least somewhat accurate, is incomplete. It is impossible to analyze Affirmative Action without considering the quota system. Quotas are diversity goals that academic institutions and places of employment have instituted to increase the numbers of minorities and women at these institutions. The quota system has been the measure used by these institutions to implement Affirmative Action. The typical diversity initiative will have a diversity goal of 7% to 25% minority placement. Of the total positions, about 2% to 9% are set aside for African-American applicants. This means that when a white applicant applies for a position, he or she is competing for the 75% to 93% of the positions that are set aside for him or her. When an African-American candidate applies for a position, he or she is applying for the 2% to 9% that is set aside for him or her. So, this begs the question, are African-American applicants and White applicants having the same access to these positions under this quota system?

A critical analysis of the Affirmative Action system would lead to a conclusion in the negative. If 100 positions are available and there are 100 qualified African-American applicants and 100 qualified White applicants, do each of the African-American applicants and White applicants have the same chance of getting these positions? An analysis of Affirmative Action by the quota system yields a conclusion that no more than twenty-five (25) of the African-American applicants will be selected for the above mentioned positions and no less than seventy-five (75) of the white applicants will be selected.

The second part of the analysis leads to a very critical question, “If twenty-five (25) African-American applicants do fill the positions, did they take the positions from the White applicants?” This question is at the heart of the Affirmative Action debate. Some would argue that some of the twenty-five (25) African-American applicants were less qualified than some of the White applicants who did not get hired. If so, then these African-American applicants were selected “over” the non-selected white applicants and this is a form of “reverse discrimination.” At first glance, there would appear to be at least some validity to the argument. However, a critical analysis of the situation leads to the conclusion that the African-American applicants and the White applicants were never in the same applicant pool of consideration.

If this analysis is correct, then African-American applicants and White applicants do not have the same access to these positions and the majority race has a distinct advantage when it comes to education and employment. This appears to be the case with Affirmative Action measures in place using the quota system. It appears, however, that Affirmative Action is on its way out of the educational and employment process. California and Michigan have already overruled Affirmative Action measures in education and those states have seen significant declines in minority attendance at their colleges and universities. Several states will have to vote on Affirmative Action in the coming months. Missouri is a state that voted recently to keep its Affirmative Actions practices, angering critics of these measures.

The future of Affirmative Action is in question. For the opponents of Affirmative Action measures, this will not adversely affect minority applicants. For proponents of Affirmative Action measures, this is a step back in the efforts to achieve equal access to education and employment opportunities. Whether you are a conservative or liberal, most readers of this article has an opinion on the Affirmative Action issue. The only question is, when this issue is put on the ballot in your state, what are you going to do about it?

Legal Disclaimer: This site provides information about the law designed to keep readers informed of pertinent legal matters affecting the African-American community. But legal information is not the same as legal advice -- the application of law to an individual's specific circumstances. Although we go to great lengths to make sure our information is accurate and useful, we recommend you consult a lawyer in your specific location if you want professional assurance that our information, and your interpretation of it, is appropriate to your particular situation.

Is the Doctrine of "Separate But Equal" Dead or Just Dormant?

By Syreeta L. McNeal, CPA, JD

We are privileged to not have to live during the Jim Crow Era where our parents and grandparents could only go to separate facilities denoted for blacks and whites in the United States. But, I wonder is the legally created doctrine of “separate but equal” dead or just dormant?

Overturning the legally created doctrine of “separate but equal” in the United States is a tough task. The United States Supreme Court recognized racial segregation nationally in three landmark cases: United v. Stanley [1] , Plessy v. Ferguson[2] and Berea College v. Commonwealth of Kentucky [3]. These cases helped establish the doctrine of “Separate but Equal” solidifying racial segregation from a state to a national level.

A. United States v. Stanley

In Stanley, the Court answered whether sections 1 and 2 of the Civil Rights Act of 1875 was unconstitutional.[4] Five civil rights cases (United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson & wife v. Memphis and Charleston Railroad Company) were consolidated and heard before the Court in 1883.[5] Collectively, the plaintiffs were denied accommodations and services in an inn, hotel, theatre, and on a railroad privately owned in Kansas, California, Missouri, New York, and Tennessee.[6]
The Court’s interpreted the Fourteenth Amendment to prohibit states from violating the individual rights of its citizens.[7] If the Court granted the federal government the power to enforce under the Fourteenth Amendment, the Court reasoned that all state action would violate the Fourth Amendment.[8] To prevent such far reaching impact, the Court asserted that the Fourteenth Amendment monitoring rests with the states.[9] Because the states created racial segregation in public and private institutions, the Court held that the Fourteenth Amendment did not give Congress the power to enforce the Civil Rights Act of 1875 upon the states.[10]

B. Plessy v. Ferguson

In Plessy, the Court answered whether the 1890 Louisiana statute providing for separate railway carriages for the white and colored races was a reasonable regulation.[11]
Plessy Ferguson, resident of Louisiana of mixed descent, paid first class fair on the East Louisiana Railway to travel from New Orleans, LA to Covington, LA on June 7, 1892.[12]
East Louisiana Railway representatives authorized Mr. Ferguson to vacate seat and occupy a coach section designed for people of color.[13] Mr. Ferguson refused the order and imprisoned in the parish jail of New Orleans.[14]

The Court interpreted the Fourteenth Amendment’s purpose as a citizenship test and not one entitling blacks to equal protection.[15] The Court asserted that the Fourteenth Amendment was to enforce separate equality for blacks and whites.[16] Furthermore, the Court referenced that the most common instance validating their interpretation of the Fourteenth Amendment was linked to the establishment of separate schools for white and colored children in the states.[17] Like Stanley, the Court asserted that states are free to determine how the races socialize and these laws are not in conflict with the Fourteenth Amendment.[18] Therefore, the Court upheld the state statute of separate but equal in public accommodations to be constitutional.[19]

C. Berea College v. Commonwealth of Kentucky

In Berea College, the Court answered whether Berea College’s practice of racial integration in instruction was unconstitutional.[20] Berea College, incorporated in Kentucky, operated a private school of learning accessible to both whites and blacks.[21]
On October 4, 1904, the grand jury of Madison County Circuit Court indicted Berea College for unlawfully and willfully permitting both white and blacks students to receive instruction in the same classroom as a violation of Kentucky laws.[22] The Court asserted that the state regulates its institutions, not the federal government.[23] Also, the Court asserted that the state is under no obligation to treat a corporation and an individual alike.[24] The Court asserted that corporations are regulated by states and the Fourteenth Amendment protected individuals.[25] The Court expanded the reasoning of the Fourteenth Amendment to apply to individuals, not corporations. Because Berea College was incorporated in Kentucky, the Court held that Kentucky’s indictment of Berea College was not unconstitutional.[26]

Argument
The Remaining Cases of the Doctrine of “Separate but Equal” are Still Good Law

Stanley is the first U. S. Supreme Court case to recognize a state’s right to implement racial segregation in private institutions as it related to the Fourteenth Amendment. Plessy extended Stanley’s ruling and recognized a state’s right to implement racial segregation in public accommodations. Berea College extended Plessy’s ruling and recognized a state’s right to implement racial segregation in private schools. All three cases enforced racial segregation in private and public institutions on a national level known as the doctrine of “Separate but Equal.” Also, the three cases prevent the federal government from using provisions, like the Fourteenth Amendment, to interfere with state actions.

The U. S. Supreme Court overturned Plessy’s application of the doctrine of “Separate but Equal” with Brown v. Board of Education of Topeka, KS.[27] However, the U. S. Supreme Court has not overturned Stanley and Berea College.[28] With the Court not overturning Stanley and Berea College, the cases are still good law. Hence, subtly the doctrine of “Separate but Equal” exists even though visible manifestation of separate facilities for whites and blacks do not. With the push for privatization of public law schools, a legal loophole exists for public law schools to reinstate racial segregation in admissions. Therefore, minority groups like African-Americans, Hispanics, and Native Americans need to create a strategy to have the U. S. Supreme Court overturn Stanley and Berea College to effectively end the legally created doctrine of separate but equal. This might be difficult. In 2007, the United States Supreme Court took steps to reverse Brown’s impact in Parents Involved in Community Schools v. Seattle School District No. 1.[29] As a bear comes back to life after hibernation, it appears that the United States Supreme Court under Chief Justice Roberts is looking to revive the bear of “separate but equal.”

So the answer to the self-imposed question is that the doctrine of “separate but equal” is not dead. It is dormant and in hibernation. Legally, we all should be worried because we can’t afford to allow states to re-implement separate facilities for blacks and whites without any assurances of protections from the federal level if legally they can do so.

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[1] See United States v. Stanley, 109 U.S. 3 (1883).
[2] See Plessy v. Ferguson, 163 U.S. 537 (1896).
[3] See Berea College v. Commonwealth of Kentucky, 211 U.S. 45 (1908).
[4] United States v. Stanley, 109 U.S. 3, 8 (1883).
[5] Id. at 3.
[6] Id.
[7] Id. at 11.
[8] Id.
[9] Id.
[10] Id. at 19.
[11] Plessy v. Ferguson, 163 U.S. 537, 550 (1896).
[12] Id. at 541.
[13] Id.
[14] Id.
[15] Id.
[16] Id. at 544.
[17] Id.
[18] Id. at 550.
[19] Id.
[20] Berea College v. Commonwealth of Kentucky, 211 U.S. 45, 53 (1908).
[21] Id. at 45.
[22] Id.
[23] Id. at 54.
[24] Id.
[25] Id.
[26] Id. at 58.
[27] Shepard’s listing for Plessy v. Ferguson as of July 28, 2005.
[28] Shepard’s listing for United States v. Stanley and Berea College v. Commonwealth of Kentucky as of July
28, 2005.
[29] See Parents Involved in Community Schools, Petitioner v. Seattle School District No. 1, et al., 551 U.S. ____ (2007).