Column: Upcoming election will be key to confronting discrimination in our legal system

Posted as a guest column in the Columbus Dispatch on June 13, 2020 at 4:15 AM

The horrific killing of George Floyd makes obvious what observers of the legal system have long decried: the corrosive effect of racial discrimination on the American system of justice. The Floyd homicide has terrible echoes of so many others, including the killing of Eric Garner in 2014, who was choked to death by a white police officer as he pleaded to be allowed to breathe.

The protesters who march to end such discrimination are combating a pervasive defect in how the American legal system works, from policing to prosecuting to sentencing. Study after study confirms that our criminal laws are enforced in a racially disparate manner, with African Americans and Latinos being treated much more harshly than whites for minor crimes and serious ones.

Examinations of traffic stops reveal that black drivers are stopped more frequently than white ones. In New York, a federal court found that officers of the New York Police Department used stop-and-frisk discretion overwhelmingly against young men of color, despite the fact that these actions yielded less contraband than searches of whites.

In Ohio, where blacks constitute about 12 percent of the population, 56 percent of the men on death row presently are African Americans.

The solution to such discrimination should lie with the federal courts, which are charged with enforcing the U.S. Constitution. The 14th Amendment provides that no state – including local governments – might deny equal protection of the laws. The Fourth Amendment guarantees that the police may not unreasonably seize or search people, and racially discriminatory law enforcement is the epitome of unreasonableness.

Yet the U.S. Supreme Court has failed to put teeth into these provisions of the Constitution. In the notorious case of McCleskey v. Kemp in 1984, for example, the court rejected an equal protection challenge by a black death row inmate who showed that blacks found guilty of murder in Georgia, especially those who had killed whites, were sentenced to death much more frequently than white murderers. The court held that McCleskey could not rely on evidence of systemic racism in Georgia’s system, but would have to prove that the prosecutor, judge, or jurors in his case had acted against him for racially discriminatory reasons – an almost impossible burden in most cases.

In evaluating the reasonableness of police actions under the Fourth Amendment, an increasingly conservative Supreme Court consistently refuses to hold police accountable for troubling uses of force. The court ruled that even in cases where deadly force is used in questionable ways, police officers are almost always immune from sanctions for violating the Fourth Amendment.

Confronted by a hostile federal judiciary, those who wish to eradicate racial bias from our legal system must turn to the ballot box. Political leaders have significant powers to stem the tide of racial discrimination in law enforcement, if they are willing to use them.

For eight years, the Obama Justice Department aggressively used federal law to reign in abusive practices by local police departments. From Ferguson, Missouri, following the killing of Michael Brown, to Cleveland, Ohio, after the killing of the unarmed 12-year-old Tamir Rice, the Obama administration used federal law to punish and prevent such abuses.

Yet when Donald Trump was elected, one of his first actions was to roll back investigations of racially discriminatory law enforcement. Indeed, the Minneapolis Police Union President Bob Kroll, who labeled George Floyd a “violent criminal,” spoke this fall at a campaign rally for Donald Trump and praised him for repudiating the Obama policies aimed at preventing abusive police practices.

Elections can have far-reaching consequences for justice. In Philadelphia and other communities, reformist candidates for district attorney like Larry Krasner have won election based on their commitment to overhauling how the justice system unfairly treats minorities.

U.S. Rep. Joyce Beatty has taken to the streets to promote understanding between protesters and police. Ohio Gov. Mike DeWine has spoken out forcefully against the killing of George Floyd.

Martin Luther King Jr. argued that “the arc of the moral universe is long, but it bends toward justice.” In November 2020, we will have a crucial opportunity to decide how long that arc toward justice will take.