Preserving the presumption of innocence
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Archival Photo of NAACP Chief Counsel Thurgood Marshall in front of the U.S. Supreme Court, where he would later become the first Black justice. (AP)
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Though part of my job is being a legal analyst, there are some legal maxims so basic everyone already knows them — like, for example, “innocent until proven guilty.”
But did you know for some people whose rights are unduly violated by police that basic principle is turned, in the words of one Supreme Court justice, “upside-down?”
The court in October heard arguments in a case that could close a legal loophole requiring people who are falsely arrested or detained to show proof of their innocence before they can sue for the violation of their constitutional rights. The problem is usually, such proof doesn’t exist.
In most of these cases, there is no trial, no judge or jury, and therefore no “not guilty” verdict. Instead, the cases are dropped by police.
The “indications-of-innocence” standard for bringing a civil suit, according to a friend-of-the-court brief filed in the case by the Boston University Center for Antiracist Research, serves as yet another brick in the wall of systemic racism in the criminal legal system.
Data show Black Americans are disproportionately more likely to be accused of crimes they didn’t commit. They account for about 12% of the population yet make up nearly half of wrongful convictions since 1989.
“In the United States, racialized police misconduct is endemic,” wrote Jasmine Gonzales Rose, the center’s deputy director of research and policy, and co-author of the brief, in a Globe Opinion piece.
“Law enforcement officers too often cover up their abuses of BIPOC with false ‘cover charges’ such as resisting arrest,” Gonzales Rose continued. “The victims of police cover charges then suffer arrest, jail, court appearances, and all the collateral consequences (legal fees, lost wages and jobs) that come with prosecution. However, because the charges were trumped up, no meaningful evidence exists, and the case is eventually dismissed.”
During oral arguments, Justice Brett Kavanaugh noted such a rule “would seem to have the perverse consequence of ensuring that some of the most deserving plaintiffs, those who were falsely accused and whose cases were dismissed early on, could not sue unless they could … dig into the prosecutor's mindset, whereas those who went to trial could sue.
“What would be the sense of having kind of an upside-down rule like that?” Kavanaugh said.
Judges often play devil’s advocate during arguments, so it’s unclear how Kavanaugh or the other justices will rule in this case.
But what is clear is, at a time when legislative action to redress our broken criminal legal system seems less and less likely, there are opportunities to find solutions elsewhere, if people, including the justices of the court, are willing to take them.
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Reforming the system from the inside out
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Archival photo of Roxbury District Court Judge Elwood S. McKenney, Massachusetts’ first Black district judge, speaks through a police cruiser's public address system. (Mayor John F. Collins records, Collection #0244.001, City of Boston Archives, Boston)
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Consider the bold “shoot to incapacitate” policy implemented by LaGrange, Georgia, Police Chief Louis Dekmar. Rather than the traditional training that officers should aim their firearms at “center mass” — essentially a shoot-to-kill approach — he directed his officers to shoot at outer extremities.
Such shots are likely to stop individuals police are pursuing so they can be apprehended and much less likely to result in the killing of those who may not be carrying firearms or be armed at all.
“Every time we avoid taking a life,” Dekmar told The Washington Post of the unconventional approach, “we maintain trust.”
There is also the tactic of transforming the way courts approach criminal cases by changing who is on the bench. President Biden has, for example, broken from the traditional approach of nominating only white-shoe law firm attorneys and prosecutors to the federal bench. So far, eight of his nominees are former public defenders.
Increasing not only racial and ethnic diversity in the judiciary but also diversity of experience is crucial, Justice Sonia Sotomayor said at a recent New York University School of Law event.
Since the passing of Justice Ruth Bader Ginsburg, Sotomayor said, not even the Supreme Court has jurists who have “been in the trenches on civil rights issues, whether it’s on women’s rights, racial rights, or even disability rights.”
Change is coming even to prosecutors’ offices, including the Massachusetts U.S. Attorney’s office, where Rachael Rollins could become the first Black woman in the post (if Republicans don’t block her).
“This is bigger than me,” Rollins told Meaghan Irons on “Black News Hour, a radio show produced by The Boston Globe.” “This is about being smart on crime, and I am very proud to be smart on crime.
“The more we have the United States of America talking about criminal justice reform, talking about racial- and wealth-based disparities, talking about data, and evidence-based solutions, that’s a victory,” Rollins said. “This is bigger than me right now.”
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Globe Staff
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Jennie Pettway and an unnamed girl with the quilter Jorena Pettway. (Arthur Rothstein)
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Some activists march, some organize, some run for office. And some, like Harriet Powers, quilted.
The folk artist, who was enslaved at birth in Georgia in 1837, created quilts after she was emancipated, drawing from the West African tradition of using textiles to weave stories, Bible verses, and real-time depictions of life into tapestries. Her work represents a living history, and is part of the “Fabric of a Nation” exhibit at the Museum of Fine Arts in Boston.
The exhibit also includes quilts made by the descendants of enslaved people from the Pettway Plantation in Gees Bend, Alabama.
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What I’m reading, watching, and hearing
I’m still catching up on all the great discussions from this year’s inaugural Globe Summit conference. If you missed it — including a discussion with The Emancipator co-founders Ibram X. Kendi, Bina Venkataraman, co-editors in chief Deborah D. Douglas and Amber Payne, and me — you can still register and check it out.
I’m full of anticipation for the launch of the new season of A Beautiful Resistance, the award-winning project by Globe columnist Jeneé Osterheldt that captures the joy, love, and truth of Black American life in Boston and beyond. Check out the trailer.
I’m also looking forward to diving into the Netflix Colin Kaepernick biopic, “Colin in Black & White,” from filmmaker Ava DuVernay this weekend. Here’s the trailer.
Until next time,
Kimberly Atkins Stohr
Senior opinion writer and columnist, The Boston Globe
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