Disparate Effects in the Criminal Justice System: A Response to Randall Kennedy\u27s Comment

For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy\u27s The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), and their resounding implications. In particular, this Essay focuses on two timely and controversial law enforcement issues facing the courts and the African-American community: the crack/powder cocaine distinction in criminal statutes and selective prosecution claims based on the disparity between federal and state sentencing schemes. The author examines the experiences of the African-American community that shape the response to these issues by addressing the constitutional claims raised by African-American defendants in two portentous criminal cases—one state and one federal—and confronting important arguments made by Kennedy in the areas of law enforcement and constitutional analysis. In addition, the author explores briefly the implications of Kennedy\u27s arguments in these and other like cases. The first case, State v. Russell, involves the infamous crack/powder cocaine distinction in a Minnesota criminal statute. Kennedy\u27s Comment characterizes this case as an example of a state court\u27s erroneous decision to equalize sentencing among crack and powder cocaine offenders in response to misguided claims of racial discrimination from African-American criminal defendants and, presumably, a segment of the African-American community. In the second case, United States v. Armstrong, the Supreme Court elucidated the threshold requirements for establishing a selective prosecution claim based on allegations that African-American defendants are prosecuted more frequently in federal rather than state courts for cocaine-related offenses and are, consequently, subject to harsher penalties. In addition, the Court articulated the evidentiary showing necessary to entitle such defendants to discovery. Armstrong offers an opportunity to examine the implications of Kennedy\u27s arguments in shaping rules that affect the discovery of evidence, and, by consequence, a defendant\u27s ability to prove discriminatory intent—a crucial element in establishing a prima facie case of racial discrimination. Accordingly, Part II sets forth Kennedy\u27s arguments regarding race and law enforcement presented in his Comment. The author critiques and examines several weaknesses in Kennedy\u27s theories in Part III and highlights important counterarguments that he either failed to address or addressed insufficiently. Finally, in Part IV, the author tests the consistency and application of Kennedy\u27s arguments in cases such as Armstrong and concludes by developing Kennedy\u27s community-oriented approach into a paradigm that is not so fundamentally hostile to racial discrimination claims based solely upon disparate impact

The First Amendment, Equal Protection, and Felon Disenfranchisement: A New Viewpoint

This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen\u27s ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court\u27s fundamental rights jurisprudence when it is motivated by a desire to limit political expression based on its perceived content; in other words, when felon disenfranchisement is motivated by viewpoint discrimination. The justifications for felon disenfranchisement laws reflect a misguided perception of how a voter\u27s identity, status, or behavior will affect how he votes. This Article confronts these justifications and examines the linkages between the right to vote and First Amendment protections of freedom of speech. Recognizing the difficulty in proving legislative motive in electoral decisions, this Article draws upon the underexplored theory of First Amendment Equal Protection, as well as the Court\u27s jurisprudence in the area of partisan gerrymandering to formulate the claim of viewpoint discrimination and demonstrate increasing judicial intolerance for legislative tampering in the electoral process with suspect motives. Through its viewpoint discrimination analysis, this Article also lays bare the multidimensional impact of felon disenfranchisement in terms of race, class, and partisanship, thereby highlighting the particular segments of society whose political participation and freedom of expression are most directly infringed by felon disenfranchisement—and, perhaps, the underlying motivations for the practice

The Causal Context of Disparate Vote Denial

For nearly fifty years, the Voting Rights Act of 1965 ( VRA ) and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. Modern vote denial practices that have a disparate impact on minority political participation, however, increasingly fall outside the VRA\u27s ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, one of the VRA\u27s most powerful provisions, have also narrowed to fit the shifting landscape. Section 2\u27s on account of race standard to determine discrimination in voting has evolved from one of quasi-intent determined by a totality of the circumstances, to a short-lived intent requirement, followed by an enhanced disparate impact analysis, culminating in a more recent standard that simulates proximate cause. This Article proposes a test for Section 2 vote denial claims that comports with the narrowing construction of disparate impact claims and reclaims the robust contextual analysis that the VRA contemplates. The causal context test proposed here is anchored to core values mined from Section 2\u27s legislative history, particularly the Senate factors. The causal context analysis relies on proof of explicit or implicit bias, as well as circumstances internal and external to elections that give rise to disparate vote denial, without requiring proof of intent. This approach is historically consistent with the VRA\u27s totality of the circumstances test and cognizant of courts\u27 increasing demands for proof of a causal link within disparate impact jurisprudence. Moreover, the proposed causal context analysis is consonant with recent federal proceedings evaluating the racially disparate impact of voter identification laws, voter purges, early voting restrictions, and other forms of modern vote denial

Fair Measure of the Right to Vote: A Comparative Perspective of Voting Rights Enforcement in a Maturing Democracy

Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that judicial underenforcement of a constitutional norm does not define the norm itself; nor does it absolve non-judicial actors from enforcing the full conceptual scope of the norm. That is, a constitution\u27s operative provisions are the foreground where the norm is defined. A second branch of underenforcement scholarship suggests that judicial implementation defines constitutional norms by employing the implementing doctrine or decision rules \u27 used to enforce some aspect of the norm. This Article aligns itself with the first branch of scholarship and borrows the operative provisions thesis to examine the right to vote when it exists as a constitutional norm in a maturing democracy. In particular, I extract two principles from the operative provisions thesis and employ them in the contexts of voting rights and comparative law to illustrate how and why underenforcement of a normative right to vote can occur in newer democracies. First, I adopt the position that the scope and meaning of a constitutional norm may be greater than its actual enforcement. Second, I rely on the argument that under- or nonenforcement results not only from a lack of judicial enforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to their fullest extent. By employing these two principles, this Article analyzes an under-recognized underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. It also analyses the subsequent judicial enforcement of that norm as an integral step toward full enforcement of the fair measure of the right to vote. To illustrate this phenomenon and apply the theory of constitutional underenforcement to practice, I use Ghana, in West Africa—a recently designated maturing democracy —as a case study

Defining Race: The Obama Phenomenon and the Voting Rights Act

This piece publishes remarks delivered at a symposium organized by the Albany Law Review and the Albany Journal of Science and Technology exploring the definition of race. The topic, “Defining Race,” is related to the recent presidential election and, in particular, to Barack Obama\u27s successful candidacy to become the first black President of the United States. Rather than deconstruct, redefine, or explore the definition of race, these remarks explore briefly whether race relations in the electoral arena have changed to such a degree that race and race-based remedies are no longer needed, and what evidence from this presidential election would allow us to measure that. Prof. Nelson posits that an appreciable amount of the excitement about Obama\u27s victory and his candidacy overall is fueled by the implicit hope that his election will have far-reaching effects on the state of race relations and inequality in the United States. For others, Obama\u27s win is a unique phenomenon—an aberration—not symbolic of any permanent shift in racial or electoral politics in America. There are even concerns that Obama\u27s success may harm the interests of African-Americans because it will obviate the discourse on race. Prof. Nelson explores the somewhat conflicting implications of Obama\u27s electoral success by focusing attention specifically on the growing number of electoral successes of African-American candidates in at-large elections in majority white—or at least not majority black—contests, and focusing on what these successes might mean for challenges to the path-breaking legislation that helped to set that entire trend in motion: the Voting Rights Act of 1965. Prof. Nelson begins by briefly recounting the modern narrative of Voting Rights Act successes and situating the Obama candidacy along a broader continuum of black elected officials. She then explores the predicted impact, if any, of Obama\u27s success on the continued protection and enforcement of the Voting Rights Act by using two recent federal court challenges as a frame

Fair Measure of the Right to Vote: A Comparative Perspective of Voting Rights Enforcement in a Maturing Democracy

Constitutional text and government action are at times discordant in important ways. This discrepancy occurs in both mature and emerging democracies. It can result in the underenforcement of constitutional norms and implicate the rule of law. When the constitutional norm involves the right to vote, the gap between constitutions and governance inevitably triggers concerns about democracy as well. There is rich and ample debate within American legal scholarship over the effect of the underenforcement of constitutional norms on the scope and meaning of the norm. The arguments generally fall into one of two camps. One strand of argument suggests that judicial underenforcement of a constitutional norm does not define the norm itself; nor does it absolve non-judicial actors from enforcing the full conceptual scope of the norm. That is, a constitution\u27s operative provisions are the foreground where the norm is defined. A second branch of underenforcement scholarship suggests that judicial implementation defines constitutional norms by employing the implementing doctrine or decision rules \u27 used to enforce some aspect of the norm. This Article aligns itself with the first branch of scholarship and borrows the operative provisions thesis to examine the right to vote when it exists as a constitutional norm in a maturing democracy. In particular, I extract two principles from the operative provisions thesis and employ them in the contexts of voting rights and comparative law to illustrate how and why underenforcement of a normative right to vote can occur in newer democracies. First, I adopt the position that the scope and meaning of a constitutional norm may be greater than its actual enforcement. Second, I rely on the argument that under- or nonenforcement results not only from a lack of judicial enforcement but also from underenforcement by the legislative and administrative actors that are obligated to enforce constitutional norms to their fullest extent. By employing these two principles, this Article analyzes an under-recognized underenforcement of the right to vote that has evaded the force of some of the most liberal contemporary constitutions. It also analyses the subsequent judicial enforcement of that norm as an integral step toward full enforcement of the fair measure of the right to vote. To illustrate this phenomenon and apply the theory of constitutional underenforcement to practice, I use Ghana, in West Africa—a recently designated maturing democracy —as a case study

Residential Zoning Regulations and the Perpetuation of Apartheid

In January of 1996, the South African Parliament ratified the long-awaited Land Reform (Labour Tenants) Bill, which has engendered heated controversy since its inception. For many, the success of the Land Reform Bill portends the economic and political future of South Africa and is a gauge of apartheid\u27s vital signs. Without land, most South Africans would remain in the same impoverished and disenfranchised conditions that they were in under the apartheid regime. With land, however, South Africans have an improved chance to achieve economic equality. Land reform and land use have become particularly crucial issues in light of President Mandela\u27s promise to construct 1.5 million homes by 1999. This promise has raised serious concerns about what residential zoning regulations will guide South Africa through its period of transition and expansion. In many respects, South Africa faces a challenge identical to that faced by the United States after desegregation, and, arguably, one that is more complex: South Africa must decide not only how to enforce post-apartheid legislation, but also how to foster economic and, consequently, racial integration. Indeed, after nearly fifty years of apartheid, the mere abolition of apartheid legislation will not result in integrated communities. Rather, the South African government must take deliberate steps to ensure that integration occurs, and that a nation emerges that is truly deserving of the appellation A New South Africa.” This Comment argues that one way for South Africa to move toward achieving racial residential integration is to implement residential zoning regulations different from those promulgated by the United States when it found itself at a similar point of departure in history. To this end, this Comment attempts to prove that residential zoning regulations in the United States are one of the myriad causes of racial residential segregation and a de facto cause of poverty among African Americans. Furthermore, if employed in South Africa, these regulations could not adequately serve the interests of South Africans or further the goals set forth in the African National Congress\u27s (ANC) Reconstruction and Development Programme (the RDP ). Part I briefly examines the history of zoning in the United States and explores the reasons why and the degree to which facially neutral zoning regulations promote racial residential segregation. Part II presents a comparative analysis of the economic disparity between Blacks and whites in South Africa and the United States, the political disenfranchisement of Blacks in both countries, and the residential segregation of Blacks from whites. Finally, Part III proposes a progressive zoning model—centralized performance zoning—that draws upon centralized planning and performance zoning schemes. Part III then evaluates the proposal by illustrating how it would promote integration in a rural area in the South African province of KwaZulu/Natal and determining whether it will serve the goals of South Africans as defined in the RDP, as well as comport with the South African Constitution. This Comment concludes that centralized performance zoning would allow South Africans to enjoy a residentially integrated society that the United States has yet to achieve in the thirty years since the fall of American apartheid

Disparate Effects in the Criminal Justice System: A Response to Randall Kennedy\u27s Comment

For many African Americans, the criminal justice system symbolizes an oppressive force, and yet, is a necessary institution in an increasingly lawless society. African Americans are at the same time its victims and beneficiaries, although various sentiments exist regarding the extent to which they are either. It is precisely this paradox, coupled with the promulgation of certain criminal legislation and legal precedent which directly and, potentially, adversely affect the African-American community that inspired the author to address the issues and arguments raised in Randall Kennedy\u27s The State, Criminal Law, and Racial Discrimination: A Comment, 107 Harv. L. Rev. 1255 (1994), and their resounding implications. In particular, this Essay focuses on two timely and controversial law enforcement issues facing the courts and the African-American community: the crack/powder cocaine distinction in criminal statutes and selective prosecution claims based on the disparity between federal and state sentencing schemes. The author examines the experiences of the African-American community that shape the response to these issues by addressing the constitutional claims raised by African-American defendants in two portentous criminal cases—one state and one federal—and confronting important arguments made by Kennedy in the areas of law enforcement and constitutional analysis. In addition, the author explores briefly the implications of Kennedy\u27s arguments in these and other like cases. The first case, State v. Russell, involves the infamous crack/powder cocaine distinction in a Minnesota criminal statute. Kennedy\u27s Comment characterizes this case as an example of a state court\u27s erroneous decision to equalize sentencing among crack and powder cocaine offenders in response to misguided claims of racial discrimination from African-American criminal defendants and, presumably, a segment of the African-American community. In the second case, United States v. Armstrong, the Supreme Court elucidated the threshold requirements for establishing a selective prosecution claim based on allegations that African-American defendants are prosecuted more frequently in federal rather than state courts for cocaine-related offenses and are, consequently, subject to harsher penalties. In addition, the Court articulated the evidentiary showing necessary to entitle such defendants to discovery. Armstrong offers an opportunity to examine the implications of Kennedy\u27s arguments in shaping rules that affect the discovery of evidence, and, by consequence, a defendant\u27s ability to prove discriminatory intent—a crucial element in establishing a prima facie case of racial discrimination. Accordingly, Part II sets forth Kennedy\u27s arguments regarding race and law enforcement presented in his Comment. The author critiques and examines several weaknesses in Kennedy\u27s theories in Part III and highlights important counterarguments that he either failed to address or addressed insufficiently. Finally, in Part IV, the author tests the consistency and application of Kennedy\u27s arguments in cases such as Armstrong and concludes by developing Kennedy\u27s community-oriented approach into a paradigm that is not so fundamentally hostile to racial discrimination claims based solely upon disparate impact

White Challengers, Black Majorities: Reconciling Competition in Majority-Minority Districts with the Promise of the Voting Rights Act

Majority-minority districts have been the subject of extensive, and often rancorous, critique and debate. In their prime, these districts nearly single-handedly changed the face of American politics by enabling racial minorities to elect their preferred candidates who reflected both their interests and identity. However, precisely at the point when these districts achieve an optimal balance of majority and minority populations and host multi-candidate competition, they reveal a frailty that not only thwarts their immediate purpose but contradicts both the express and implicit goals of their source: The Voting Rights Act of 1965. Majority-minority districts possess an inherent limitation that contradicts the Voting Rights Act\u27s manifest purpose of safeguarding minority interests and creating electoral opportunity by facilitating minority voters\u27 election of candidates of their choice. Prof. Nelson argues that this limitation of majority-minority districts, defined as the collective action problem, lies in their general inability to withstand competition among multiple minority candidates and a white candidate while simultaneously preserving their function to elect minority voters\u27 candidates of choice. More significantly, an inherent limitation of majority-minority districts also lies in their potential to produce a converse result—that is, to facilitate the election of a non-preferred candidate and, perhaps, the least-preferred candidate of minority voters. The focus of this Article is to examine the paradox of achieving minimal minority population and multi-candidate competition in majority-minority districts at the expense of fulfilling the Voting Rights Act\u27s promise when those districts confront the candidacy of white challengers. Prof. Nelson argues that, despite its goal of ensuring minorities an opportunity to elect their candidates of choice in majority-minority districts, the Voting Rights Act did not contemplate white spoilers in majority-minority districts and, consequently, does not provide meaningful protection against the resultant vote fragmentation that leads to electoral defeat of minority voters\u27 candidate(s) of choice. She further posits that, absent a legislative or judicial mandate, this gap in the Voting Rights Act\u27s goals and results can most readily be resolved only by a concerted effort on the part of minority communities to limit vote fragmentation through one or more means. Part I sets forth what the Voting Rights Act intends to accomplish in terms of both protecting minority interests and creating minority opportunity, exploring the express and implied guarantees of the statute, with a particular focus on section 2 of the Voting Rights Act as the enabling legislation of majority-minority districts, the definition of political cohesion, and the use of majority-minority districts to advance minority interests in the electoral process. Part II examines the operation of majority-minority districts in the current political arena through the filter of two congressional races in which white candidates threatened to—and in one case, did—gain advantage in majority-minority districts because of racial splintering of the minority vote resulting from their candidacy. Part III explores the role of minority communities in ensuring that majority-minority districts elect their candidates of choice, even when there are outside challengers. The Article concludes by framing queries as to what defeat in these districts could portend for the sustainability of majority-minority districts and other Voting Rights Act protection