SDNY's Judge Rakoff: 'Scrap the Sentencing Guidelines'

The Southern District of New York, a federal judicial district known for the ambition and pedigree of U.S. and Assistant U.S. Attorneys who have practiced there, is, among all courts, not one at all hostile to prosecutors. Yet, Senior SDNY Judge Jed Rakoff--himself a former prosecuting attorney in the Southern District--has written a short paper which aims to curtail the power of all federal prosecutors.

In the article---based on a speech delivered in early 2013--Judge Rakoff explains how the effort to make federal sentences less disparate and less harsh in fact developed a tool for prosecutors to ratchet up sentences and severely punish individuals for exercising their constitutional right to jury trial. If you care at all about how the federal judicial system (dys)functions, I cannot recommend this paper  (JSTOR, pdf) highly enough. It's only four pages and isn't laden with legal jargon so anyone who reads this blog should have no problems understanding it it.

Via Sentencing Law and Policy

Jay Smooth on Moving the Racial Conversation Forward

Yesterday, I spent too many words explaining why concentrating on individual racism, while important, obscures the larger problems with race and society. Jay Smooth just released an excellent video breaking down the same thing, much more succinctly. I highly recommend it.


bellum medicamenti delenda est

"Nigger" and Its Symptomatic but Minor Role in American Racism

NB: Please also see update below.

On Friday, Matt Welch tweeted out

Yep, we're having a Conversation About Racism tonight on @IndependentsFBN: Because that scab won't pick itself!  http://t.co/nxl142OJEI
— Matt Welch (@mleewelch) January 17, 2014

The Independents is a show on Fox Business featuring (Lisa) Kennedy (Montgomery), of MTV fame, Matt Welch, editor in chief of Reason magazine, and Kmele Foster, entrepreneur and former chief of America’s Future Foundation, a DC-based non-profit dedicated to developing the next generation of right-of-center public policy folks.

I missed the show, but noticed Mediaite’s  Andrew Kirell picked up the segment on the use of the word “nigger” and considered Kmele’s take “thoughtful.” With all due respect to all involved, all of whom besides Kennedy I know socially or through social media, I found it anything but.

I understand the nature of TV commentary doesn’t lend itself well to nuance and thorough explanation, but I found Kmele’s explanation surprisingly vapid and devoid of evidence. 

First of all, if one chooses to talk about racism broadly, as Matt’s tweet indicated,*** whether or not white people get to use “nigger” should be well down the list of concerns. Poverty, education, incarceration, alienation, and disparate treatment in the public realm are far more important than whether white people sing along to ‘Niggas in Paris.’ Indeed, even broaching the topic because a handful of whites have had career disruptions for perceived racial transgressions—both fair and foul—is in itself myopic and inherently dismissive of the history and legacy of racism in this country. But here we are.

Here’s my transcript of the relevant parts of the segment:

Kmele: “I only [get upset when a white person says “nigger”] when the intention is there….In all seriousness, I wonder about hypersensitivity and being insensitive and if those are not two sides of the same coin and if those both can’t get us into a significant amount of trouble. We have people in this country whose careers have been ruined for using words that sound like “nigger” but have no etymological link to the word nigger. [Kennedy interjects a story about blowback after city council member laughed after using word ‘niggardly.’ Kmele continues:] And that is the hypersensitivity. I think it is indicative of the moment we find ourselves in which is a universe in which most of the racism we would have seen during the civil rights era has been extinguished. We do not find that routinely anymore. And people are, in fact, manufacturing incidents of racism on a regular basis and finding various things that outrage them, calling it ‘racist,’ and nigger is a word that is used routinely in hip-hop music, for example, and is ‘owned’ by that community”

[snip]

Matt: Could it be a sign of health that a large number of people think this word is inadvisable, it makes my ears bleed hearing it because I heard a cop growing up in my neighborhood about how he used to haul all the [niggers] back because who’s going to believe a [nigger]?”  

Kmele: “And that is awful, but no, I don’t think it’s a sign of health. I think it’s a reflection of a tremendous hypocrisy that is pervasive in our society, where I can say any number of things about race you [to Welch] simply can’t say. I can make observations you’re not allowed to make because it might jeopardize your career or any “good thinking person’s” sensibility”

At the beginning of the segment, Kmele said that a lot of people are hypertensive to perceived racism. I actually agree with this, though I think it’s wrong to be reflexively dismissive of all claims because some people overreact. (Although, I’m sure he counts me among them.) People have quick triggers for things that trip their confirmation bias—whether it’s racism, or wrongdoing by the president they oppose, or, ahem, incorrect or overwrought accusations of racism. People who like to yap online or in other public fora often get riled up when they see something that pushes their buttons. This does create an environment in which you have a lot of crying ‘wolf’ when someone seems to run too close to the line of propriety. But I think people who draw checks from Fox News probably shouldn’t be too hard on oft-hollow, reactionary, faux outrage. 

I digress.

Kmele fears that society has become hypersensitive to racism and that people are unfairly maligned for using words that aren’t even “etymologically related” to “nigger” (eg, niggardly). I don’t even have to imagine a situation when someone uses a term with tongue-in-cheek in order to skirt propriety. As a teenager, I distinctly remember playing euchre, in which if you neglect to ‘follow suit’ you’ve committed a foul and ‘reneged.’ More than a few players would jump in and yell “YOU RENIGGER!” knowing full well what they were saying. Etymologically speaking, “renege” and “nigger” aren’t related at all—and I know it may be hard to believe—but people playing cute with language don’t really give a damn about etymology. I have no opinion whatever on the city council member who got in trouble for using ‘niggardly,’ and maybe it was a media-driven overreaction, but it follows the political dust-up was an effort to glean his intent—something Kmele himself said his reaction would be based on—rather than whether the word was Latinate or Greek based. It's a nit, I know, but let's not pretend people can't use 'niggardly' to be disrespectful and cheeky either.

Continuing with the intent aspect, in one respect, I fully agree. As I’ve written before, a man can use “African-American” with every bit of scorn and resentment the utterance of “nigger” reflexively elicits. The use of “nigger” isn’t definitive but rather a possible symptom of racism. For good reasons, “nigger” has earned a special place in the American (and greater Anglophone) lexicon that society has deemed generally out of bounds for members of “outgroups”—those whom could not reasonably be construed to be the subject of the derisive term at issue themselves. If someone of stature or authority uses the term flagrantly and without regard to the public rebuke one may expect from its use, an assumption of racial insensitivity should be expected and possible animus may be inferred.

The context of the conversation I was describing in the link above: a not-long retired police officer I’d just met told me, point blank, that he and his colleagues would likely rough up any “African-American,” innocent or not, who refused an unwarranted search of his person. That he wanted to use “nigger” until he was told of my racial background is telling: out of misplaced respect for my heritage he wouldn’t use “nigger,” but had no qualms telling me he’d beat me up if I were darker and refused his unconstitutional demands. That he would assume such language and behavior would be considered at all acceptable to me having just met me is indicative of the patent disregard he has for black people and why it may, in fact, be important that society now checks people who blithely use “nigger” in ‘polite’ conversation.

This, of course, takes us to Matt’s interjection about cringing about his experience with police treatment of blacks when he was growing up. Matt, like me, is in the age cohort sometimes referred to as Generation X—though there are a few years between us. We grew up in the Cold War and after the Civil Rights Movement had petered out from its prominence in the late 1960s. We didn’t grow up under Jim Crow and never saw the Klan inflict political violence against black folks. Lynchings have long been a relic of the past and we can all agree that sort of racism is, largely, behind us. But, as my friend Jamelle Bouie put it yesterday, the Civil Rights Movement wasn’t about bus seats and drinking fountains, it was a system of oppression that blacks in the United States had suffered under since the nation’s inception. Police abuse was part and parcel of that system, and we have empirical evidence that a substantial amount of it continues to this day.

New York City’s ‘Stop and Frisk’ program is an anti-gun measure in which police are to invoke so-called Terry stops, named for the decision in Terry v. Ohio 392 U.S.1 (1964), in which police officers were explicitly granted the power to “frisk” people they “reasonably suspected” to be engaging or about to engage in criminal behavior. This was “for the protection of [the officer] and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.” While a “search” under the Fourth Amendment, a ‘frisk’ for weapons is distinct from a full search of a suspect after arrest, but it still must be “reasonable.”

In a footnote of that that opinion, Chief Justice Warren wrote: 

“The President’s Commission on Law Enforcement and Administration of Justice found that ‘in many communities, field interrogations are a major source of friction between the police and minority groups.’ It was reported that the friction caused by ‘misuse of field interrogations’ increases ‘as more police departments adopt ‘aggressive patrol’ in which officers are encouraged routinely to stop and question persons on the street who are unknown to them, who are suspicious, or whose purpose for being abroad is not really evident.’ While frequency with which ‘frisking’ forms a part of field interrogation practice varies tremendously with locale, and the particular officer, it cannot help but be a severely exacerbating factor in police-community tensions. This is particularly true where the “stop and frisk” of youths or minority group members is ‘motivated by the officers’ perceived need to maintain the power image of the beat officer, and aim sometimes accomplished by humiliating anyone who attempts to undermine police control of the streets.’” Terry v. Ohio, 392 U.S. 1,(1964) fn 11, at 15, internal citations omitted, emphasis added. 

Sound familiar? That's Civil Rights Era Supreme Court Justice talking about Civil Rights Era police procedure, abuse, and consequent marginalization of communities. Over four million stops under NYPD’s ‘Stop and Frisk’ program since 2002, a majority of whom were young and black or Latino, and nearly 90 percent were innocent of any crime or outstanding charge, with, according to Mayor Bloomberg himself, roughly 8,000 guns recovered—a whopping 0.2% of stops. Either the NYPD has no idea what a “reasonable” suspicion is or they’re effectively suspending Fourth Amendment protections for black and brown people at their whim. 

Chief Justice Warren writes, “[I]t is simply fantastic to urge that such a procedure performed in public by a policeman while the citizen stands helpless, perhaps facing a wall with his hands raised, is a ‘petty indignity.’ It is a serious intrusion into the sanctity of the person, which may inflict great indignity and rouse strong resentment, and it is not to be undertaken lightly.” (Terry, at 16-17.) I’ll get more into Terry in another post, but Kmele’s assertion that most of the racism from the 1960s has been “extinguished” willfully glosses over the legacy of the racism which remains. To say we don’t find it routinely is patently absurd because, in the NYPD and elsewhere, it IS THE ROUTINE, whether or not ‘nigger’ ever escapes the cops’ mouths. (Even it did, who’d believe the nigger anyway?) 

Asserting that police have shed their history of exploiting and targeting blacks and other minorities is entirely based on faith. It may or may not be true on the whole—in fact, I don’t think it’s unreasonable to say police are, on net, less racist than they were 50 years ago—but to say it’s been effectively ‘extinguished’ has no provable basis. Beyond New York, other arrest, sentencing, and incarceration data indicate there are racist legacies throughout the criminal justice system all over the country. Add to this the pressure of plea bargaining, the secretive, retributive nature of policing, criminal conspiracies among cops that often target minorities, and the public reassurances by people like Kmele that racism is so very rare, you have layers of built-in protections that can be used against the most honest and forthright claims of racism. The aggregate criminal justice data, anecdotal evidence, and lengthy history of racism in this country--save a magical date or time at which people in authority stopped being racist I'm not aware of--doesn't support, for me anyway, 'clearly not racist' as a default position.

Given the complications of prejudice and the human mind, and our nation’s inescapable racial history, it’s impossible to say ‘how racist’ police or other institutions still are in this country, but the hypocrisy lies not in whether we are too hard on whites for ‘racial observations’ people like Kmele can make. Rather, it’s that we allow those assertions to go unchallenged depending on what color the person who makes them is.

Shifting cultural norms is how civil society changes itself. That individuals lose TV shows or suffer professional consequences when they express ideas deemed abhorrent or anathema to what society deems appropriate is how civil society is supposed to work. I, for one, am glad American society has gotten to the point where racism--especially among those in authority--is talked about and condemned, instead of ignored and brushed aside as it has been since the Founding.

bellum medicamenti delenda est 

 ***UPDATE: Kmele reached out to me to mention I should have watched the whole show before judging because they did tackle some issues, such as Stop and Frisk and Immigration. I saw the other two clips on the website, one entitled "When does a joke go too far?" which holds absolutely no interest for me, and the other "Is ObamaCare a racist term?" It turns out that was probably more a function of SEO than an adequate descriptor of the segment--as the hosts explain their (noble) reasons for dedicating a show to race. Unfortunately, for those of us unable to watch the show in its entirety, the online clip, available here, is partial and cuts off as the debate gets interesting. I'll poke around for a full cut of the show and update as appropriate.

From what (admittedly little) I've been able to watch, this seems more like good idea, bad execution, not unlike Rand Paul's Howard speech. I think the hosts, whether we agree or disagree, approached the topic in good faith. But the clips available don't paint the best picture of the crux of the debate and tackle primarily the trappings of racism instead of why it's actually a problem of public policy. -JPB