Volume I: The Role of the US Legal System in the Loss of Black Life

T he Role of the US Legal System in the Loss of Black Life

CONTENTS

Free at Last? Remnants of Slavery and the Continued Perpetuation of Anti-Blackness in the World of Anthropology

Darartu Mulugeta

Criminalization of Naturally Occurring Substances: History and Law

Micah Mekbib

No Going Back: False Hope and the US Legal System’s Inability to Dismantle Anti-Blackness

Gene McAdoo

The Wrongful Conviction of the Exonerated Five

Hiyab Misghina

The Domino Effect of Mass Incarceration

Ilu Tefera

California Education: Another System Fails Black Life

Amadi Maatafale

Reasonably Suspicious Police

Jayda Jackson

Niabi Campbell ***

Leilani Fu’Qua **

Ilu Tefera

Jonathan Mistir **

Leila Chiddick **

Senay Zedingel **

Hiyab Misghina

Darartu Mulugeta

Anaya Ali **

Gene McAdoo

Amadi Maatafale

Micah Mekbib

Jayda Jackson

Rebecca Worku

Allanah Smith

BPLA’s goal for our Law Journal is to increase awareness about various legal issues that continue to disproportionally affect our Black community. This volume centers on the legal systems complicit participation in the loss of Black life, livelihood and justice. Through the articles in this issue, we hope to inform readers of the current and historical injustices of the legal system that participated in the violent relationship between Black Americans and the American justice system. This issue interacts with the loss of Black life through anthropological, cultural, and legal analysis.

We want to thank our wonderful staff writers and editors for their diligence throughout the production of this journal. This is the Black Pre-Law Association’s first volume of our undergraduate law journal, and we are extremely proud of those who aided us in its formation. We hope to carry on with many more issues and will continue to question the systems which we partake in. Thank you for your readership and support! Thank you to Nommo Newsmagazine for the design and layout of this journal, as well as their contribution to its print publication.

We will make the invisible man visible once again, Venceremos!

Free at Last? Remnants of Slavery and the Continued Perpetuation of Anti-Blackness in the World of Anthropology

by Darartu Mulugeta

It is no secret that many academics have historically worked hand in hand with racism to belittle Black people and justify slavery. Much of the literature that attempts to explain Black life is grossly racist and rooted in white supremacy. Since their inception, institutions that pride themselves on being proponents of education and human advancement have been the proponents of anti-blackness and white supremacy. Unfortunately, it comes as no surprise that even in death, Black bodies have been disrespected by institutions in the name of history and research. Universities and museums have recently claimed that they regret their racist pasts. However, these claims seem entirely performative as they have refused to take any real action to reverse the damage they have caused. As students of these institutions and members of our supposedly progressive society, it is puzzling that this dark part of anthropology has not been adequately addressed. This article explores two instances of universities and museums possessing Black remains and continuing to benefit from historically anti-black research while refusing to respect the wishes of each descendant community. With the combined efforts of activists and the affected communities, there is the hope of passing laws to regulate the possession of Black remains and protect the legacy of those who passed away.

Tamara K. Lanier is the great-great-greatgranddaughter of a slave named Renty, whose images are currently owned by Harvard University. Lanier filed a lawsuit against Harvard in 2019 to gain the rights to the images because she believes that Harvard’s ownership is unlawful. The images are daguerreotypes, one of the earliest forms of photography, and according to the Washington Post, they are “...believed to be the first images ever made of enslaved people”. As bleak as Lanier’s story is, the story of how the images were created is even darker. Louis Agassiz was a biologist at Harvard University in 1850 who “...sought to prove that Black people had no common origins with other races and were thus inherently inferior.” Agassiz searched for “pure” Africans and chose Renty and his daughter Delia because Renty was one of the few slaves at the time who was born in Africa, specifically in the Congo. Renty and Delia were taken, forced to undress, and the scientist measured and took pictures of them. They were treated like specimens of study by Agassiz and his peers in an effort to justify white supremacy. The images were found again in 1976 at the Harvard Peabody Museum. The university has been using them to promote its events, even charging others to use the pictures. Ironically, they used the pictures “...for a conference Harvard hosted on universities reckoning with their past relationships with slavery,” but they refuse to comply when they are given a chance to make things right. Lanier has asked Harvard to stop this blatant disrespect of her ancestors, but the school continued to refuse her requests. Lanier wants Harvard to stop using the images because they are constant reminders of the trauma that her ancestors experienced. With no hope for agreement, she took legal action against the school but her case was dismissed in March 2021.

In 1840, at the University of Pennsylvania (Penn), Samuel G. Morton attempted to measure human remains and use it as a science to further the anti-black agenda. Morton is known as the first physical anthropologist in the United States. He spent much of his career “...building a collection of crania to study racial differences” to eventually prove that race was a significant determinant for intelligence levels. Morton was influential during his time, and many other scientists wanted to help him with his goal of studying human remains. One of the people eager to help was a Cuban doctor named José Rodriguez Cisneros, who went to a plantation burial ground of enslaved people and “... dug up their bodies, removed their heads, and shipped their skulls to Philadelphia.” Morton studied the skulls and attempted to prove that physical differences were related to levels of intelligence in humans. He continued to collect human crania, and when he died at the age of 52, he owned hundreds of skulls. As a scientist, whom many in his field looked up to, anthropologists followed his example and large numbers of Native Americans and Black people were taken from their graves. There was no regard for the sanctity of the graves that were robbed, and the beliefs of each group were not considered in the quest for more material to study.

After Morton’s death, researchers at Penn began to study his collection in 1980 with a new purpose. They had good intentions and “...used the history of the Morton collection to expose the evils of racism and slavery, sometimes using skulls in lectures and exhibits on those topics.” They believed that their treatment of the remains was acceptable since they did not have a racist agenda. In fact, they had the opposite. Even with their good intentions, the researchers were criticized by activists because at the root of their research, they “...perpetuated in-justice because no one in the collection had wanted to be there.” Following the activists’ demands, the Penn Museum halted research on the skulls in 2020, and the university released a formal apology for its unethical practices. Because of Morton’s negative reputation and the newly added public outcry, Penn has been considering a plan of action to solve the issue.

However, it did not take long for more news of scientific racism to come out at the University of Pennsylvania. This time the bodies they used to research were much more local. In 2021, it was reported that Penn possessed and was actively using the remains of Black Philadelphians who were victims of the 1985 MOVE bombing. MOVE was a West Philadelphia Black separatist group whose dwelling was bombed by Philadelphia police after a standoff. More than 60 homes were harmed by the fire, and several people died. The bodies of two children were sent to Penn to be identified by anthropologist Alan Mann. Somehow, the bodies were never returned, and “…the remains were used for teaching at Penn.” It was discovered that Mann’s former student, a curator at Penn’s Pennsylvania Museum of Archaeology and Anthropology, had studied the bones in recent years and used them in some of her anthropology courses. The communities of these children were rightfully upset by this news and spoke out against the school and systems that allowed this injustice to occur. The children were never laid to rest, and their families never received closure. This touched the hearts of many Philadelphians and prompted questions about the university’s ethics and concerns about its research practices. The lack of care and proper documentation of the bodies when they arrived shows that Penn did not consider them to be human. The lives of Black children were not valuable enough for the administration. Situations like this show how laws are necessary to regulate and keep institutions accountable for their treatment of human remains.

The examples of Harvard and Penn are not rare. There are many other schools and organizations that are also facing this moral dilemma. The Smithsonian Institution’s National Museum of Natural History is another big organization holding “...the remains of more than 30,000 people, many Indigenous and some likely enslaved.” It is important to remember that a majority of these remains were taken without permission because the moral issue becomes substantially more prevalent. The institutions in possession of these remains have to decide whether they will do the

work to right their wrongs or continue the disrespect. Dr. Michael Blackey, a physical anthropologist at the College of William and Mary, says, “... ancestral remains do not belong to everyone…it’s the descendant community and the culturally affiliated group that ethically has the right to determine the disposition of its remains.” Institutions like Harvard, Penn, and the Smithsonian, have to look to the descendant communities of the remains they possess to find a solution. I imagine it will take time to find the right people to ask but using historical and family records I believe it is possible to get the opinion of many people that are direct descendants or community members.

Changes have been made to target this cycle of disrespect that indigenous communities face with the Native American Graves Protection and Repatriation Act (NAGPRA). It took a lot of advocacy to pass, but the act was finally signed by George H. Bush in 1990 and provided legislation for the repatriation of Native American human remains and sacred objects. Native Americans have experienced the same disregard from scientists that Black people have, but after a lot of effort, the law was passed. NAGPRA allowed federally recognized tribes to reclaim the things which were important to their cultures and traditions. As part of NAGPRA, Congress recognized that human remains and artifacts that were taken from Native Americans, no matter how much time has passed, still belong to their tribes. In addition, they acknowledge that “...human remains must at all times be accorded dignity and respect.” This claim refers to all human remains, including that of Black people, but NAGPRA only serves the Native American community. With laws limiting that line of research, “...African American bioarchaeology, which deals directly with African American remains has seen a drastic increase since the 1990s.” It is not surprising that anthropologists already in the business of studying human remains would switch to studying the Black community since the passing of NAGPRA made it harder to study Native Americans. The sudden interest in Black archeology makes it clear how important it is to pass a similar protection act for African Americans.

It is upsetting that all ethnic backgrounds were not included in the original NAGPRA legislation. One possible explanation for this is “...[the] tendency not to view African American cemeteries as [a] sacred space in the same manner as one would view a Native American burial ground.” Native American beliefs in necessary burial practices and the afterlife are seen as unique and separate from European culture. However, since African Americans are away from their ancestral land, it is assumed that they do not have special beliefs on the sanctity of human remains. There is evidence of Black American traditions that disprove this ideology. These traditions show that although Black people in America do not have the same traditions as Africans, they have developed their own and deserve the same amount of respect. A similar version of NAGPRA focused on African Americans will give Black American communities and their traditions the recognition and respect they deserve.

The African-American Burial Grounds Preservation Act is an attempt to give much-needed recognition and respect. It was a bipartisan bill introduced by Senator Sherrod Brown of Ohio. The purpose is to establish a system of preservation through the national park service because African American burials were not valued by outsiders, and Black people did not have the resources to properly take care of burial sites. The goal of this act is “…to identify, interpret, research, preserve, and record unmarked, previously abandoned, underserved, and other African-American burial grounds.” With the destructive nature of archeological research, it is relevant to have a law like this to protect burial sites and give value to the remains of Black people. Even so, the act is limited to burial sites and does not fully protect all aspects of Black life. That is why activists are calling for the African American Graves Protection and Repatriation Act (AAGPRA). AAGPRA will address the same issues for African Americans as NAGPRA did for the Native American community. It requires museums and universities to catalog items in their archive related to Black “...human remains, funerary objects, sacred objects, and objects of cultural patrimony.” It also focuses on the importance

of community involvement and comfort when a new project begins. Many archaeologists and biological anthropologists already ask for input when starting their research, but this act will make the current community a more significant part of the research process. It ensures that all research that takes place aligns with the values of the descendants to honor their ancestors.

Some researchers argue that they use these remains in an effort to educate the world or even save lives. However, many contemporary anthropologists are saying that it is not right to use the remains of Black people that often died violently and did not give consent. Institutions and scientists could get proper permission to study the remains by identifying the descendants of those who have passed away and allowing them to make the final decision. It should be up to the descendants whether the institutions can keep the remains or if they want to put their ancestors to rest. Laws such as AAGPRA can help to improve the relationship between these communities and research entities. Anthropology can be a bitter subject for many Black people, but in recent years, those who study Black life have been fighting for more ethical practices to make the field more welcoming. There is a lot to gain from studying Black people and their history, but it should not come at the expense of ignoring their humanity.

References

Peter Crimmins, Penn Museum Apologizes For ‘Unethical Possession Of Human Remains’, April 27, 2021, available at https://www.npr.org/2021/04/27/988972736/penn-museum-apologizes-for-unethical-possession-ofhuman-remains

Lanier v. Harvard., No. 2021-P-0350, Commonwealth of Massachusetts Appeals Court, 2021

Gillian Brockell, In 1850, a racist Harvard scientist took photos of enslaved people. A purported descendant is suing, Washington Post, November 5, 2021

Lizzie Wade, The Ghosts in the Museum, Vol. 373, Science Magazine, 149-152, July 9, 2021.

Colleen Flaherty, A Mystery and a Scandal for Anthropology, Inside Higher ED, April 23, 2021.

Editors, Anthropology, Racial Science, and the Harvesting of Black Bones: Dr. Michael Blakey Interviewed by Dr. Jemima Pierre, Black Agenda Review, May 2021.

National Park Service, Facilitating Respectful Return, Last Updated November 22, 2019, available at https:// www.nps.gov/subjects/nagpra/index.htm

Dr. Justin Dunnavant, African Americans and NAGPRA: The Call for an African American Graves Protection and Repatriation Act, 12, Spring 2013.

Press Release, BROWN INTRODUCES BIPARTISAN AFRICAN AMERICAN BURIAL GROUNDS PRESERVATION ACT, February 16, 2022, available at https://www.brown.senate.gov/newsroom/press/release/ brown-introduces-bipartisan-african-american-burial-grounds-preservation-act

Criminalization of the Use of Naturally Occurring Substances: History and Law

by Micah Mekbib

Abstract

This article will examine the (im)moral principles guiding the criminalization of the use of naturally occurring substances in the United States (U.S.). It will review relevant historical regulation and their failures in curbing drug supply while simultaneously targeting poor, marginalized communities. An analysis of this regulation will provide context for the argument for criminalization before the article delves into recent advancements and benefits of decriminalization. Naturally occurring substances indicates substances that are not made by humans. This is in contrast to substances synthesized in a laboratory setting, such as hallucinogens like lysergic acid diethylamide (LSD) and 25I-NBOMe (N-Bomb).

Introduction

The extensive application of naturally occurring substances in traditional, spiritual, and religious practices has characterized human history for centuries. Indigenous cultures and religions throughout the Americas and Africa feature a history of shamanic tradition and the sacramental adoption of certain plants with psychoactive ingredients. Despite many positive explorations of natural and synthetic substances, the publicization of the high risk associated with their use prevented these substances from being socially accepted or legalized at the time. This publicity was mainly endorsed by the U.S. government, which sensationalized drug use to the American people, going as far as to call drug users “cocaine crazed Negros” and “Mexican reefer madness.” There exist heavy barriers to further research on these substances because their use has been regulated legally, stigmatized socially, and generally criminalized. These barriers reinforce themselves—thorough research, which could demystify these substances and publicize their positive benefits, would lessen stigma and regulation, but such research cannot occur because of the same stigma and regulation.

With that being said, I will define the scope of naturally occurring substances as any compound that is naturally present in the environment (not a compound synthesized from natural components). The particular substances of focus in this article are cannabis and the following natural hallucinogens (i.e. psychedelics): ayahuasca, psilocybin, ibogaine, and N,N-Dimethyltryptamine (DMT). These substances can leave their users prone to abuse. Though psychedelic drugs and marijuana do not have typical addictive properties (compared to opioids such as heroin, fentanyl, etc.), people may become addicted to the escape from reality that drugs offer. Combined with a lack of appropriate preparation and potentially pre-existing mental illnesses, it is possible that improper psychedelic consumption can result in severe distress, with exceptionally large doses increasing the possibility of dangerous delusions.

As a result, the United States Drug Enforcement Administration (DEA) labels such drugs as Schedule I controlled substances in the Controlled Substances Act of 1970 because of their high levels of risk. Their placement in the Schedule I category indicates that they are not only federally illegal, but they are also viewed as unsafe to consume even with medical supervision. One exemption to drug regulation is the legalization of cannabis by select state governments, though cannabis consumption is still diligently regulated in these states. The dangers of drug use, coupled with strict legal caution, suggest why there is public reservation. However, this article will argue that the media, manipulated as a tool to further the U.S. government’s agenda, has historically exaggerated the dangers of consuming naturally occurring substances while doing little to educate people that safe and enlightening experiences are more common than not.

The aforementioned cycle of mutual reinforcement created by criminalization and regulation further inhibits the ability to evaluate the medical usage of select naturally occurring substances. This limits the expansion of research that may provide insight on the comparability of these natural drugs to modern medicine. Though many may be concerned with negative effects of drug consumption, a balance between

promoting their positive usage and regulating harm is necessary. This equilibrium can only be achieved with an appropriate degree of deregulation that enforces safety and awareness of one’s health, and simultaneously allows room for medicinal and recreational usage.

The Evolution of Legal Regulation

Preservation of human life is a primary motive behind drug legislation. When drugs we use harm others or ourselves, it becomes a problem that must be addressed through public policy or other measures that protect against the infringement of civil rights and liberties. Examples of drug-related self-harm include decreases in personal well-being and productivity. Furthermore, drug-related harm often extends beyond the self; it is not an isolated experience because of the social nature of humans. These are negative effects that can filter into the interactions of that person’s life by affecting their familial, professional, and personal relationships. For example, one’s substance abuse can strain their relationships within their family and negatively impact their career performance. From an economic standpoint, their hospitalization, a likelihood that inevitably increases when engaging with psychedelic drugs, would increase funding demand of the medical sphere, their unproductivity at work would decrease the output of the company they work for, and so on. When considering these factors, the historically strict regulation that follows, like the War on Drugs, seems lucrative. However, as discussed in the upcoming section, this U.S. legislation did not seem to have the well-being of citizens at the forefront of its intent, but was, rather, a disguised assault against poor, marginalized communities.

Say No to Drugs: History of Regulation and Criminalization

The earliest sign of the crackdown on drugs came with the U.S. ratification of the Single Convention on Narcotic Drugs in 1961, which restricted the production, possession, distribution, etc., of cannabis, among other drugs, to medical and scientific purposes. The preamble of the Convention labels the usage of cannabis as a “serious evil” and a threat to social and economic well-being. Similarly, around this time, the lack of regulations on psychedelic drugs led to a surge in studies with poor experimental design and lack of appropriate ethical or medical oversight. For example, The Harvard Psilocybin Project was spearheaded by Harvard psychology professors in 1962 and aimed to deeply characterize the effects of psychedelic drugs. This project was controversial because of its lack of medical supervision. Consequently, regulations were implemented, some of the most notable being the amendments to the Food and Drug Administration’s (FDA) scope of power. These amendments authorized the FDA to require demonstration from pharmaceutical companies that a drug is safe and effective before being approved for administration in research studies.

However, the publicity of the Harvard Psilocybin Project and similar studies continued to create an unhealthy relationship between the public and drugs like psilocybin; they were perceived as dangerous, unnecessary, and not beneficial. In his book, How To Change Your Mind, Michael Pollan comments on the swiftness of this turn from excitement of the psychedelic counterculture to moral panic and the role that the media played in its development. In 1965, the media began explicitly warning the public of the severe side effects associated with the consumption of these drugs, such as “psychotic breaks [and] suicide.” Pollan writes, “As quickly as the culture and the scientific establishment had embraced psychedelics, they now turned sharply against them. By the early 1970s, psychedelic drugs were outlawed and forced underground.” The media’s sensationalization of drug usage and exaggerated caricatures of drug users were effective in flipping the narrative within a few years. This was only worsened by the War on Drugs, spearheaded by Richard Nixon, the 37th U.S. President.

President Nixon’s complex public fight against drugs began in 1970, when he consolidated over 200 previous drug laws into a single statute: The Controlled Substances Act. This statute labeled the substances discussed in this article, among many others, as Schedule I controlled substances because of their high levels of risk. It regulated the manufacture and distribution of controlled substances. During the same year he passed this statute, Nixon ratified the United Nations (U.N.) Convention on Psychotropic Drugs, which abruptly made the supply and possession of psychedelic drugs illegal. The decision to control these

drugs across borders successfully signaled his intent and dedication to the cause, contributing to anti-drug cultural norms and setting a precedent for drug criminalization. In addition, President Nixon dramatically expanded the size and presence of federal drug control agencies, creating the DEA in 1973. Coupled with the Nixon administration’s implementation of mandatory sentencing and no-knock warrants, which authorized police officers with a warrant to enter premises without announcing their presence, new legislation such as the The Controlled Substances Act, U.N. Convention on Psychotropic Drugs, and development of the DEA severely criminalized drug usage.

The most egregious aspect of the War on Drugs is that it was motivated by discriminatory sentiment. In 1994, Nixon’s domestic policy chief, John Ehrlichman, admitted: “You want to know what this was really all about. The Nixon campaign in 1968, and the Nixon White House after that, had two enemies: the antiwar left and Black people. You understand what I’m saying. We knew we couldn’t make it illegal to be either against the war or Blacks, but by getting the public to associate the hippies with marijuana and Blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.”

It worked extremely well. As one of the earliest combinations of social stigmatization and legal regulation of drugs, the War on Drugs successfully vilified Black and Brown communities. Those who were poor, homeless, racial minorities, or otherwise part of a marginalized population were often at risk for drug use, and Nixon’s campaign engineered fear of drug use and caricatured stereotypes of drug addiction. This generated a near-resentful disapproval of the aforementioned communities because of their association to these drugs. Such an attitude was partially a result of criminalizing legislation the War on Drugs produced, but also served to reinforce the rhetoric of Nixon’s campaign. The cycle that was birthed from these cultural norms made it progressively more difficult for individuals to be unbiased toward psychedelic research and see its potential positive benefits. These federal regulations produced by the War on Drugs also trickled down to affect state legislation. By 1973, public pressure for stricter penalties regarding drug criminalization in New York had become so potent that mandatory minimum sentencing for possession of four ounces of narcotics became approximate to that of a second-degree murder. These were famously called the Rockefeller Drug Laws and were a significant historical marker of the War on Drugs’ grip on America at the time. The central ideology of drug regulation criticism questions the government’s constituency: if individuals are abusing these drugs and/or suffering from the very health crises that the media informs, then why are they not being treated accordingly? Despite such criticism, anti-drug legislation continued to establish an overwhelming presence in the 1980s under President Reagan’s administration; mass incarceration continued to grow exponentially as the prison population increased eight-fold from 1980 to 1997. However, currently in the 21st century, progressive areas of the nation are starting to overturn such historical regulation.

Recent Decriminalization

Still deep in an anti-drug America, Oregon sent shockwaves as the first state to decriminalize cannabis in 1973. As of 2020, only seven states in the U.S. still fully illegalize cannabis usage, while sixteen completely legalize it for medicinal and recreational use. The rest of states lie within a range of mixed legislation: some only legalize CBD oil or medical usage while others fully decriminalize its use (a step further than legalization). However, despite this progress, there still are half a million inmates incarcerated solely for drug law violations.

Popularity of psychedelic research resurfaced in the 1990s, creating a second and current wave of research in the West. Despite the presence of anti-drug legislation for decades at that point, there was progress to respect Indigenous use of psychedelic drugs. Notably, the U.S. Congress enacted the Religious Freedom Restoration Act in 1993. It legalized non-drug sacramental use of psychedelic plants for those who identify as practicing Indigenous religion. Paired with the freedom of religion protected by the First

Amendment of the U.S. Bill of Rights, this has allowed an exemption to the prohibition of ayahuasca. This reflects the characterization of ayahuasca in Indigenous Amazonian Brazilian culture as a legal sacrament for multiple churches. Native American churches have been granted an exemption to the prohibition of peyote by the same institutions for the same reasons.

The most exceptional advances seen in decriminalizing psychedelic drugs occurred in May 2019 when Denver, Colorado became the first city in the U.S. to decriminalize psilocybin. The following year, Oregon became the first U.S. state to similarly decriminalize psilocybin and other small amounts of drugs with Measure 110. Oregon’s Measure 110 not only promises a decriminalization of all recreational possession of drugs, but outlines expansion of access to rehabilitative treatment, housing services, and harm reduction services for anyone facing drug abuse or addiction. These services are funded by immense tax revenue from legal cannabis consumerism and the millions of dollars that would normally go toward housing individuals in the incarceration system. These decisions, while admittedly passed in some of the most socially liberal cities in the nation, reflect a political progression from treating drug use as a criminal issue to a health issue. Oregon’s decriminalization fully indicates a movement toward “prioritiz[ing] health over punishment” and is estimated to decrease 95% of racial disparities in the state’s drug arrests. If the pattern following the watershed Oregon decriminalization of cannabis is similar to their decriminalization of drugs, we may see other states decriminalize more drugs as well. In fact, the influence of Measure 110’s passage is already measurable. In August 2020, the Drug Policy Alliance released a legislation proposal outlining a drug decriminalization framework at a federal level. It seeks to realign the responsibility of drug policies from the DEA to the National Institutes of Health (NIH), a branch of the Department of Health and Human Services (HHS). While it has not yet passed, it indicates a significant ideological development of understanding drug use as a health issue, and no longer labeling it as a criminal issue. This growth is largely due to the aforementioned second wave of research studies that feature better experiment design and more ethical safety guidelines.

The Argument for Decriminalization

This section will focus on the two ideologies attached to the central theme of reclassifying drug use from a criminal issue to a health issue. It involves a movement away from the idea that drug abuse and addiction should be criminalized.

Prisons Are Not the Answer

The current consequence of possessing or using drugs is imprisonment, which has proven to be ineffective in rehabilitating individuals for a release back into society, much less in facilitating development of a healthy relationship between drugs and their users. In fact, approximately 80% of U.S. prisoners who may benefit from drug use treatment do not receive it while incarcerated. There is adequate evidence to strongly suggest two important findings: (1) instead of achieving the goal of reducing drug supply during the War on Drugs, the U.S. experienced massive exponential growth of domestic and international illicit markets that increase risk among drug users; and (2) eliminating criminal penalties for possession of drugs would not significantly increase the rate of drug usage.

Contrary to the goals of the War on Drugs, drug supply seemed to actually increase: at the peak of Reagan’s leadership of the War on Drugs, illicit markets were abundant and successful in smuggling drugs into the U.S. One of the most explosive disclosures regarding the War on Drugs occurred in 1986, when a Senate Foreign Relations Committee report revealed that there was evidence indicating a link between payments from the U.S. government to Nicaraguan Contras under the guise of humanitarian assistance and increased imports of cocaine into the U.S. This cocaine was then converted into crack cocaine by domestic manufacturers and delivered to inner city Black and Latino communities by dealers. It is alleged that the U.S. government was complicit in this high presence of drugs in the U.S. and even protected Nicaraguan Contra smugglers who delivered drugs to these communities from criminal prosecution. These findings underscore the fact that the War on Drugs was rarely, if ever, about reducing drug supply and usage in the U.S., but more about creating a form of social control over Black and Latino people. Experts

generally agree about one thing: punitive drug policies seem to do nearly as much harm as the drugs themselves, and only serve to worsen harm by assigning sanctions and stigma to what should be a public health concern. This discussion on health bleeds into the second ideology: the efficacy of these drugs in positively impacting health at a holistic level, even as a means of treating both mental and physical illnesses.

Consideration of Rehabilitative Features

This section will discuss the medical advantages of deregulating drug research, whether or not that also includes decriminalizing its recreational use. It is important to consider that the risk level of psychedelic drugs is not similar to that of other drugs like opioids because psychedelic drugs are not as physically addictive. Furthermore, the media has long since exaggerated the effects of drug usage in ways that made it nearly impossible for their target audience, adolescents and young adults, to view the harmful effects of drugs as credible. For example, First Lady Nancy Reagan’s “Just Say No” campaign was nearly completely defined by a video analogizing brain activity on drugs as a frying egg. However, scientific studies have substantially disputed the validity of these videos. While it is possible for individuals to experience psychosis while on drugs (and those with familial predisposition to mental illness are at a much higher risk), it is not as common as marketed. Oftentimes, cases diagnosed as psychotic breaks are typically revealed later as shorter panic attacks caused by psychedelic experiences such as sensory overload, paranoia, etc. Rather, the media has blurred the line between drug usage in uncontrolled and risky settings versus controlled settings with careful attention put toward preparation. A study from 2010 ranked psilocybin as safer than alcohol and tobacco. With this pattern of thought, many question why alcohol and tobacco are fully legalized and readily available in everyday society, while psychedelic drugs are heavily prohibited. Nevertheless, the nature of a psychedelic experience poses separate risks, ranging from psychotic episodes to long-term psychological trauma and personality deterioration. These risks are a huge barrier to a semblance of public acceptance of—or even discussion about—legalizing the use of hallucinogenic substances in the same manner that alcohol or cannabis legalization has manifested.

However, recent research and regulatory progress indicates that there are ways to mitigate these risks. The ability of using criminalized drugs in medical settings is not unprecedented. In its history, the FDA has approved medical use of certain drugs deemed as illegal in the Controlled Substances Act. For example, in 2019, the FDA approved esketamine, a synthetic hallucinogenic drug like those examined throughout this article, to treat depression. Another prominent step in this same direction was signaled by the FDA’s recognition of results from a study that championed psilocybin-assisted psychotherapy as a viable form of combatting depression long-term (for at least six months). This official recognition of medical potential could lower barriers to research and, thus, expedite it. These instances inform society that it is undoubtedly possible to create secure methods of consuming certain drugs, should they indicate enough medical benefit to be considered for safe administration.

Recommendations for Legislative Reform

It would be a disservice to discuss the argument for decriminalization of naturally occurring substances and fail to put forth some framework for what legislative reform could look like. As mentioned in an earlier section, heavy barriers to drug research are mainly due to significant government restrictions that leave research expensive and tedious.

One step forward to alleviate the current financial burdens of this research would be to fund statewide psychedelic and cannabis research programs. This is not unheard of; Oregon’s Measure 110 that decriminalized drugs boasted its rehabilitative treatments for drug users, funded by the influx of tax revenue from legal cannabis sales. I propose that alike advancements can be made in other U.S. states that have adopted similar legalization of cannabis for research funding. Another achievement that could make research more feasible would be for these naturally occurring substances to gain FDA approval and

removal from the Controlled Substance Act’s Schedule I. Research facilities would have to jump through fewer regulatory hoops, making research less cumbersome and bureaucratic.

Much of Western research, especially in its early years, is indebted to Indigenous cultures for the insight gained from their practices. Considering that the earliest known psychedelic practices occurred in Indigenous civilizations approximately two centuries before those of the Western world, it is no surprise that Western research drew heavily from what was already known in Indigenous practices. It is crucial that this foundation is not forgotten when conducting psychedelic and cannabis research studies. This inclusion of different races in such research can also be applied to government legislation and medical practices. The U.S. has had a tumultuous past with discriminatory regulation that disproportionately and wrongfully affected Black and Latino communities while failing to equally being imposed on white communities. In the same way that drug legislation is infected with systemic racism, medical frameworks in the U.S. are often white-dominant, leading to racial inequality in treatment. Negative stereotypes of Black people during the Jim Crow era, for example, created large disparities in equal access to health care and treatment in a white-dominated field. Racial biases of health care providers combined with a historical lack of appropriate medical research regarding non-white bodies has led to a consistently substandard medical treatment of non-white people. A lack of effort in recognizing how humans of varying races react differently to ailments, and subsequently researching how to care for such diversity, has undoubtedly contributed to widespread systemic racism that remains resilient in the U.S. today. If psychedelic research becomes more lucrative, it is imperative that Indigenous and ethnic minorities are included and kept in mind when conclusions are reached. It is important to give credit where credit is due in regard to the way Indigenous peoples introduced the benefits of naturally occurring substances to the Western world, and as their cultural practices continue to inform Western research by providing a foundation of experience. In addition, there are realistic ways to prevent inequalities in medical treatment. For example, psychedelic and cannabis research studies should be diverse in subjects to account for how race and ethnicity may change their effects.

Conclusion

The criminalization of naturally occurring substances has historically done more harm than good. While Indigenous peoples have been incorporating these psychoactive substances into their cultures and religions for centuries now, Western governments have continued to heavily regulate their usage, creating high barriers to research that have delayed, if not prevented, thorough exploration of these drugs in different contexts. Furthermore, the U.S.’s historical anti-drug laws failed to reduce the quantity of drugs and prevalence of drug usage while simultaneously contributing to exponential growth in mass incarceration. Consequently, it is imperative that society begins to treat the use of natural drugs as a health issue rather than a criminal issue, especially if one’s relationship with the drug becomes abusive or otherwise harmful.

This framework allows for the healthy exploration of naturally occurring substances by encouraging research studies on the effects of these drugs. It permits actions that can also inform individuals on how to form a healthy relationship with substances, when accessible to the public. Considering drug usage within a context of health actively works toward improving the general well-being of individuals by advocating for increased access to rehabilitative practices. This alternative could ideally reduce the number of jailed individuals convicted of nonviolent drug offenses. These efforts are not unfounded nor impossible to reach. Measure 110, the 2020 Oregonian legislation that decriminalized small amounts of drugs, came into effect just last month in February 2021. Although federal legislative change is much more complex than state government processes, it is not unimaginable; the U.S. House of Representatives passed the Drug Policy Alliance’s legislative proposal advocating for decriminalization of marijuana just last year. Ultimately, a government is intended to support its constituents and their livelihoods while preserving their natural and legal rights. I believe the shift in culture described throughout this article is conducive to this ideal.

References

Ben Sessa, Why Psychiatry Needs Psychedelics and Psychedelics Need Psychiatry, 46 J. Psychoactive Drugs 61, at 57-62 (2014).

Julie Netherland & Helena B. Hansen, The War on Drugs That Wasn’t: Wasted Whiteness, “Dirty Doctors,” and Race in Media Coverage of Prescription Opioid Misuse, 40 Culture, Med., and Psychiatry 666, at 664-686 (2016).

Michael Pollan, How to Change Your Mind: What the New Science of Psychedelics Teaches Us About Consciousness, Dying, Addiction, Depression, and Transcendence 11 (2018).

Controlled Substances Act, 21 U.S.C. §§ 801–971 (2012 & Supp. 2017). The CSA states that, “[e]xcept as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally–to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

Michael Gabay, The Federal Controlled Substances Act: Schedules and Pharmacy Registration, 48 Hosp. Pharmacy 473, at 473-74 (2013).

All states have mixed or full legalization of marijuana except for Idaho, Kansas, Nebraska, North Carolina, Tennessee, and Wyoming. Mixed legalization ranges from as little as only permitting CBD oil in a medicinal setting (ex. Georgia) to both decriminalization and medicinal usage.

Paul Smith, Drugs, Morality and the Law, 19 J. Applied Phil. 234, at 233-244 (2002). Dustin Marlan, Beyond Cannabis: Psychedelic Decriminalization and Social Justice, 23 Lewis & Clark L. Rev. 866, at 851-92 (2019).

Convention on Psychotropic Substances of 1971, 21 February 1971, 1019 UNTS 175, 10 ILM 261. The Convention on Psychotropic Substances of 1971 is otherwise referred to as the “Psychotropics Convention,” and entered into force on August 16, 1976.

Drug Policy Alliance, A Brief History of the Drug War (Feb. 5, 2021), https://drugpolicy.org/issues/ brief-history-drug-war.

These narcotics included marijuana, cocaine, and heroine. For the context of this article, importance and focus is attached to marijuana legislation.

Madison Gray, A Brief History of New York’s Rockefeller Drug Laws, TIME (Apr. 2, 2009), http://content.time.com/time/nation/article/0,8599,1888864,00.html.

Drug Policy Alliance, supra note 33.

Matt Sutton, Drug Policy Action’s Measure 110 Prevails, Making Oregon the First U.S. State to Decriminalize All Drugs & Expand Access to Addiction and Health Services, Drug Policy Alliance (Nov. 3, 2020), https://drugpolicy.org/press-release/2020/11/drug-policy-actions-measure-110-prevails-making-oregonfirst-us-state.

Xavier Fernández & Josep M. Fábregas, Experience of Treatment with Ayahuasca for Drug Addiction in the Brazilian Amazon (Nov. 2014).

Matt Sutton, Drug Policy Alliance Proposes Federal All-Drug Decriminalization, Releases New Legislative Framework, Drug Policy Alliance, (Aug. 6, 2020), https://drugpolicy.org/press-release/2020/08/

Redonna K. Chandler, Bennett W. Fletcher & Nora D. Volkow, Treating Drug Abuse and Addiction in the Criminal Justice System: Improving Public Health and Safety, 301 JAMA Psychiatry 185, at 183-90 (2009).

Drug Policy Alliance, It’s Time For The U.S. To Decriminalize Drug Use and Possession (Aug. 30, 2017), https://drugpolicy.org/resource/its-time-us-decriminalize-drug-use-and-possession. Nicaraguan contras was a U.S.-backed rebel group that opposed the Marxist Nicaraguan government from the late 1970s to the early 1990s.

Hearings Before the Subcommittees on Terrorism, Narcotics, and International Communications and International Economic Policy, Trade, Oceans, and Environment of the Committee on Foreign Relations United States Senate, 100th Cong., (1987), https://babel.hathitrust.org/cgi/pt?id=mdp.39015014580339& view=1up&seq=1.

Peter Balonon-Rosen, From cringeworthy to scary: a history of anti-drug PSAs, Marketplace (Mar. 26, 2019), https://www.marketplace.org/2019/03/26/advertisings-war-drugs-also-failed/.

Roland R. Griffiths, et al., Psilocybin produces substantial and sustained decreases in depression and anxiety in patients with life-threatening cancer: A randomized double-blind trial, 30 J. Psychopharmacology 1182, at 1181-97 (2016).

John Halpern, The Promise of LSD Microdoses and Other Psychedelic Medicines, Scientific American (July 10, 2017), https://blogs.scientificamerican.com/cross-check/the-promise-of-lsd-microdoses-and-other-psychedelic-medicines/.

Matt Lamkin, Psychedelic Medicine Is Coming, The Law Isn’t Ready, Scientific American (July 31, 2019), https://blogs.scientificamerican.com/observations/psychedelic-medicine-is-coming-the-law-isnt-ready/ Daniel Covas & Madeline Campbell, Psilocybin May Brighten the Future for Depression Patients, JD Supra (Jan. 15, 2021), https://www.jdsupra.com/legalnews/psilocybin-may-brighten-the-future-for-9729116/.

The DEA has yet to parallel these FDA developments. Psilocybin still remains a Schedule 1 controlled substance, indicating both a high risk for abuse and little to no medical potential.

David R. Williams & Toni D. Rucker, Understanding and Addressing Racial Disparities in Health Care, 21 Health Care Fin. Rev. 78, at 75–90 (2000).

Marijuana Opportunity Reinvestment and Expungement Act of 2020, H.R. 3884, 116th Cong. (2020).

No Going Back: False Hope and the US Legal System’s Inability Dismantle Anti-Blackness

by Gene McAdoo

“The Law, historically, has sanctioned — and still does, my god! — the obliteration of Blackness” - Marquis Bey, “Them Good Rules” (2019)

Since this country’s inception, anti-blackness has been a guiding ideology in how the U.S. Legal system understands and responds to the actions of Black people and Blackness, resulting in Black freedom being perpetually enclosed and criminalized. Beginning with chattel slavery, to segregation, to neosegregation, from slavery to Black Codes and Jim Crow to Mass Incarceration to whatever comes next, an anti-black animus has undergirded the functioning of the U.S. Legal System and the expansion of its carceral apparatus. This paper will put into conversation Afro Pessimism and Derrick Bell’s racial realism to explore the effectiveness, or lack thereof, of the U.S. Legal System in its ability to remedy its harms enacted upon Black life. I argue that due to the endemic nature of anti-blackness in the United States’ economic, political, and social institutions, the US legal system is incapable of providing adequate redress for the irreparable harm it has inflicts on Black people living in the United States and that the sooner one accepts this fact, the sooner one can adopt abolitionist politics that seek to create a world not filled with the suffering of Black people.

In the decades following the landmark 1954 Brown v. Board U.S. Supreme Court ruling that outlawed segregation on the basis of race, Derrick Bell and many other civil rights lawyers recognized that the civil rights victories inaugurated by the Brown decision proved to be more symbolic than substantive in improving the educational experiences of Black students. In fact, by 1976, Bell began to question whether or not the integrationist ideals of civil rights lawyers and organizations such as the NAACP were aligned with the interests of their clients — who were often simply seeking an improvement in the quality of education for their Black children (Bell, 1976; Bell, 2004). Bell came to realize that not only did the reliance on seeking legal remedies based on achieving a desired amount of “racial balance” overlook how the ideals of Brown — equal opportunity education for all students — could be actualized within the context of schools that remained segregated, but it also stigmatized Black schools and Black students and communicated tacit and overt messages that they lacked value. The elusive nature of Black educational progress in the post-Brown era mirrored the trajectory of “progress” for the masses of Black Americans during that time period. Despite increased access to civil rights following the legislative victories of the civil rights eras, the vast majority of Black Americans continued to experience racial discrimination in the social, economic, and political realms. This time period can be characterized by what Saidiya Hartman has termed the “afterlife of slavery,” where:

Black lives are still imperiled and devalued by a racial calculus and political arithmetic that were entrenched centuries ago. This is the afterlife of slavery — skewed life chances, limited access to health and education, premature death, incarceration, and impoverishment (p. 6, 2007).

Hartman’s afterlife of slavery concept captures the salient nature of anti-blackness continues to inhibits Black people’s ability to realize their gained civil and political rights despite ostensibly increased access to civil and political rights following Emancipation. Anti-blackness refers to society’s inability and unwillingness to recognize the humanity of people racialized as Black. The consequences extend to Black people having to navigate the world without their civil rights and humanity respected or protected. For Afropessimists, because anti-blackness forecloses the possibility of Black people to be seen as Human, civil society is embedded with an inability to observe and honor the civil rights and humanity of Black people. An understanding of the deleterious consequences of

anti-blackness helps explain the continued marginalization of Black people in all social, political, and economic realms.

In response to the illusory nature of racial progress for Black people in the United States, Bell (1991) argues that Black people need to consider adopting a political stance of racial realism, an argument asserting that:

Black people will never gain full equality in this country. Even those herculean efforts we hail as successful will produce no more than temporary peaks of progress, short-lived victories that slide into irrelevance as racial patterns adapt in ways that maintain white dominance. It is hard to accept the fact that all history verifies. We must acknowledge it and move on to adopt policies based on what I call: racial realism. This mindset or philosophy requires us to acknowledge the permanence of our subordinate status. That acknowledgment enables us to avoid despair, and frees us to imagine and implement racial strategies that can bring fulfillment and even triumph.

Bell argues that adopting a racial realist political stance forces “us” to reconceptualize the goals of seeking racial equality and inclusion within an anti-black exclusionary system and social order, encouraging us to “concede that a commitment to racial equality merely perpetuates our disempowerment”, and instead fight to mitigate the suffering of Black people “in a society where blacks are a permanent, subordinate class” (Bell, 1991, p. 374). While this argument may appear to be fatalistic and pessimistic on the surface, Bell argues that embracing a Racial Realist political stance “may open the gateway to attaining a more meaningful status” (1991, p. 377). In in other words, as pessimistic as it may seem, refusing to limit the scope of our struggle to seeking equal rights under the law and instead fighting to make life bearable in an anti-black society pushes us to reject “the romantic love of integration” and instead focus on seeking solutions that mitigate Black suffering. Bell (1991), a civil rights lawyer and law professor, calls himself conservative and critiques how he “relied on the courts as a civil rights lawyer to teach the next generation of lawyers, even as the number of black folk living in poverty and dying the same way, continued to mount” (p. 2) He goes on to say, “It is not extravagant to suggest that, given the genocidal nature of our government’s racial policies, black people not committed to planning an armed rebellion are, by definition, conservative.” (Bell, 1991). Essentially, Bell is critiquing the idea that reform through civil rights law is the only worthy goal for Black people to pursue, that we might be better off focusing our efforts on planning a revolutionary insurrection.

Derrick Bell’s discussion of his realization that Black people’s subordinate status could not be fixed through the law reminds me of an essay called “Perfecting Slavery” by Anthony Farley, a legal scholar whose work is commonly associated with Afropessimist thought. Anthony Farley (2005) would very much so agree with Bell here, and he might go as far as suggesting that pursuing reform through law is simply the act of “perfecting slavery.” Farley (2005) argues that the pursuit of reform is essentially the act of “perfecting slavery” by pursuing a political object that would leave intact the social relations and social institutions that maintain white supremacy and anti-blackness. In a recent book chapter, Farley goes even further and says,

“Law…is the monopoly on violence that is used to keep white over Black…The monopolists of violence force us all to look at our feet as they beat us about our heads…The beaten blacks…form prayers to the monopolists of violence, prayers for legal relief from the violence of dispossession. These prayers create a false god, the state, whom the defeated hope to appease with ever more sickening displays of fidelity to the rule of law and to the future fairness of their masters. Without the prayers of the defeated and traumatize dispossessed, there is no monopoly, no legal system, no market, no white-over-black, no false god, no early master. Without the prayers of the dispossessed, there is anarchy and communism. That is the future that is beyond the place where we are now.”

Here, Farley proposes that adherence to pursuit of liberation through the pursuit of equal treatment under the law is bound to always already be doomed because of the US legal system’s unwillingness and inability to guarantee Black people’s civil and political rights and provide redress

for Black suffering. This position is opposed to reform efforts such as voting, police reform, and other forms of incremental politics that are grounded in the belief that if we just keep fighting, then one day U.S. legal, social, and political institutions will one day begin to recognize Black humanity and respect our basic human rights Black people. However, as Farley and other argue, the way that Black people in the U.S. continue to face 1) poor educational outcomes, 2) highest likelihood of chronic illnesses, 3) least accessibility to voting pools, and 4) highest rates of being extrajudiciously murdered by police and white vigilantes despite the legislative victories of the civil rights movement and decades of racial reform efforts should force us to question achieving liberation through reform. This argument is deeply rooted in the ethical imperative to be honest with ourselves about and learn from the successes and failures of previous movements that sought to achieve liberation for Black people living in the United States.

Afro Pessimism, a theoretical framework emerging from the field of Black Studies, begins with this practice of realism about previous liberation efforts at its crux. In his interview with Saidiya Hartman, Frank Wilderson notes that Afropessimist scholarship refuses a common occurrence where people “peel away from the strength and the terror of their evidence in order to propose some kind of coherent, hopeful solution to things” (p. 183). Instead, Afro Pessimism refuses to “look at the ravages and the brutality of the last few centuries, [and] still find a way to feel good about ourselves” (Hartman & Wilderson, 2003, p. 185), by outlining the deleterious consequences of anti-blackness in the face of grand narratives of progress that ignore the lived experiences of the masses of Black people.

For Afropessimists, because anti-blackness forecloses the possibility of Black people to be seen as Human, civil society is embedded with an inability to observe and honor the civil rights and humanity of Black people. Moreover, 1) the persistent positioning of Black people at the bottom of socioeconomic ladder, 2) degradation of Blackness in popular culture, and 3) the constant images of Black death illuminating our phones and TV screens normalize the suffering of Black people by communicating messages to both Black and nonblack people that Black bodies are worthy of hyper surveillance, criminalization, and gratuitous violence (Dumas, 2016; Wilderson, 2020). These deficit-oriented frames of Black people and Blackness go on to justify policies and practices that are detrimental to Black people’s wellbeing (Dumas, 2016). The circuitous interplay between the deplorable lived experiences of the masses of Black people and the deficit-oriented views that justify the policies and practices that create those lived experiences perpetually reinscribes the “nonHumanness” of Black people, sustaining an endless cycle that upholds and continuously reinforces the anti-black, white supremacist racial hierarchy in the United States (Dumas, 2016).

Afro Pessimism and racial realism reach the same conclusion: due to the immutable nature of anti-blackness, Black people will never have access to equal rights in the world as we know it. Moreover, both Afro Pessimism and racial realism argue that this fact is something that needs to be accepted, and should be the basis of our politics. Allowing this fact to be the point of departure for one’s politics forces us to refuse seeking mere inclusion in an exclusionary system, and imagine otherwise possibilities. In other words, by acknowledging the intransigent nature of anti-blackness in American society, we will be positioned to shut the door on pursuing toothless racial reforms that fail to concretely transform how anti-blackness shapes our everyday experiences and keep us trapped in an endless cycle of despair (Warren, 2015).

Following Warren (2016), this essay has been an attempt to fulfill my “nihilistic responsibility” (emphasis in original) in arguing that we must accept that the US Legal System and the individuals who perpetuate its injustices have no interest in meaningfully alleviating Black suffering. Until we accept this fact, we will be stuck in an endless cycle of relying on the same political tools and ideologies that have kept us in an endless cycle of Black suffering and Black death. Rather than being understood as defeatist and fatalistic, this argument that asks us to accept our “permanent subordinate status” in the eyes of the law pushes us to close the door on the political goal of seeking equal treatment under the law. Instead, this position should encourage us to adopt abolitionist political orientation that wishes to “raze the stadium of settler-slaver society for good” (Shanghe, 2019, p. 3) and force us to begin to think about how we might go about creating a world where everybody will have everything they need to survive and thrive, a world that is ultimately free from anti-blackness and all other forms of oppression. (Kaba, 2020; Bey, 2020; Anderson, 2021). In other words, accepting the permanence of anti-blackness and the inability of the US legal system to adequately redress Black suffering implores us to work towards abolishing and revolutionizing institutions that continue to perpetuate harm and uphold racial capitalism and anti-blackness. Adopting an abolitionist political orientation forces us to stop seeking sociopolitical inclusion and increased access to rights that have thus far failed to concretely transform the lived experiences of the masses of Black people and forces us to get to work on imagining and laying the groundwork for build new institutions that lead to the creation of a more egalitarian society.

The Wrongful Conviction of the Exonerated Five

by Hiyab Misghina

Deceptive interrogations that result in the coercion of false confessions happen far too often in the legal world and largely affect the Black community. The Exonerated Five is one ofthe most notorious cases of our time demonstrating that the legal system has historically abused its powers by practicing unjust tactics to wrongfully incarcerate Black Americans. BBC News outlines the story of a group of five Black and Hispanic boys in New York City 1989, who were coerced into providing false confessions. Their names are Kevin Richardson, Antron McCray, Raymond Santana, Korey Wise, and Yusef Salaam. The false accusations were based on the rape of Trisha Meili, a white woman who was jogging in New York City’s Central Park. The five teens served between six and 13 years before the serial rapist who committed the crime confessed, which was supported by DNA evidence. In an act of compensation, the city of New York settled with the five for $40 million dollars. The story of the Exonerated Five is a heartwrenching case that illustrates the unjust actions committed against Black Americans by the legal system. This article will analyze how law enforcement, the media, and society as a whole contributed to the wrongful conviction of these boys on the premise of racial bias.

This case dominated the news coverage in New York City and it did not help that the media painted these boys as monsters. A Daily News Newspaper released at the time was 2 headlined in bold words saying, “WOLF PACKS PREY–Female jogger near death after savage attack by roving gang.” As kids in their vulnerable position, isolated from their community, one can imagine the shock they felt being described in this way. These teens who spent their days playing instruments, working diligently in school, and playing sports in hopes of reaching their goals could never have predicted being perceived by the world as an animalistic gang. Their image was altered drastically; one day they were children and the next they were being painted as savages and symbols of violence, which resulted in an endless amount of torment and opposition from the greater New York population and beyond. These words, the media, and the actions of law enforcement stripped them of their individuality, desires, and future goals. Taw leads us to believe that if you act civilly, abide by the rules, and do not engage in illegal activities you will not be criminalized or imprisoned… but why was this not the case for these boys who went about their life in a more than civil manner? The Black community does not have the luxury of relying on such privilege, instead from a young age most of us are taught to be overly obedient in circumstances involving police enforcement. It is ingrained in us to be aware that no matter our actions we could be perceived as a criminal. Aggressive headlines such as these further support this understanding within the black community and are deeply rooted in a history of dehumanization and racism, trailing back to the inability of white America to accept Black individuals as fully human. These five boys were haunted throughout the development of the

The New York City Police Department

case by these cruel labels, and it further perpetuated the idea that they were guilty, fueling the rush to judgment by the New York community. Simply put, the execution of this trial was beyond unjust and failed to follow the law for a number of reasons. These boys were not even present at the scene when it occurred, rather all it took was a few police officers who felt they fit their prejudiced idea of someone who would commit this horrific crime. Law enforcement’s racial profiling was the subject of targeting for suspects of the crime. Furthermore, as stated by McKinney's Family Court Act, “New York 3 prohibits the interrogation of minors unless their parent or guardian is present.” Nevertheless, these five teenagers were brought in to be interrogated immediately (without a legal guardian and without their informed consent), despite the absence of valid reasoning for considering them as suspects. The fear instilled in them by these authoritative figures led to them being easily convinced and resulted in the presumption that they could trust these adults. According to USA

NY Daily News Archive via Getty Images Today, a study conducted by the National Registry of Exonerations reveals that a leading cause of fallacious convictions is in fact police-induced confessions. Rather than working to do a thorough job of discovering the true criminal(s) of this case, the detectives made these kids collateral damage in an attempt to rapidly solve the high-profile case. These detectives did their job so poorly that they let racial bias take a precedent in their decision of how to conduct their investigation, resulting in five innocent boys being used as scapegoats and paying for it for the rest of our lives. In fact, the damage they faced isn’t limited to the time they spent in a cell, but also the psychological effects they continue to deal with today. The Netflix series adaptation “When They See Us.”

One might argue that no person would confess to committing a crime if it wasn’t true, however, these kids were coerced through intense manipulation tactics. To be held for 10 plus hours in a room until law enforcement hears what they desire will certainly take a toll on one’s mind and decisions. In a 2016 interview with the Guardian, Salaam, one of the five boys shared, "I would hear them beating up Korey Wise in the next room. "They would come and look at me and say: 'You realize you're next'. The fear made me feel like I was not going to be able to make it out." The intense interrogation the boys endured evoked a feeling of obligation to obey the authority in this situation: the detectives. Detectives were permitted to lie and convince the boys that their fingerprints were present at the crime scene which only instilled more fear in the boys and all the more reason to comply with their instructions so that they could be released. According to the Behavioral Scientist, “...[kids] become so confused by the lies that they hear and come to believe they have committed this crime they did not commit.” This confusion compels children to work their brains to try and understand why they have no recollection. The confidence and insistence on the part of law enforcement push the children, who aren’t as intellectually developed, to trust and believe their claims. In fact, they are led to believe that they could have acted without awareness, as they may have repressed it. The manipulation, the prolonged hours of interrogation, combined with the verbal and physical violence toward these kids is what pushed them over the edge and inevitably caused them to falsely confess. The

The New York Daily News front page on April 21, 1989.

detrimental effects of this coercion made the children desperate for solace and a way out, therefore they provided the desired confessions, hoping for an end to the torture as promised.

Although they were finally granted freedom to leave the station, in truth, the second they stepped foot out of the interrogation rooms they entered a prison of bigotry, threats, and harassment from the outside community. The villainization they faced by society was unlike one 7 that had been witnessed before, and was further encouraged by big figures, including Donald Trump who called for the execution of these innocent minors, as stated in “The Guardian”. In fact, he continues to stand by his decades-old claim that these children are guilty, despite the realease of DNA evidence that concluded there was zero matching evidence (handprints, footprints, hair samples, blood, clothing). This tumultuous time was compounded by the fact that the eldest of the boys, Korey Wise, was being tried as an adult in court because he was 16 years old at the time. He would be spending a longer sentence than the rest of the group in adult prison and the horrific violence he would encounter would be so unbearable that the prison would have no choice but to place him in solitary confinement. The unfortunate irony is that Korey was only put in this situation because he wanted to accompany his friend Salaam at the station when he was taken in as a suspect. In other words, he was never considered a suspect in the first place but once again law enforcement activated their racial bias and brought him in for questioning, which resulted in a false confession and subsequently the worst sentence of the five.

Needless to say, no amount of money could repair the immeasurable damage these boys faced as they spent the later part of their childhood and a significant part of their adulthood in confinement. In every aspect of this situation, the legal system did not adequately protect these kids’ fundamental human rights, instead, it failed them, endangering and dehumanizing them in a multitude of ways. From the start, law enforcement saw these boys of color and presumed that their color was enough to justify that they were complicit in the crime. As a country that preaches freedom, justice, and equal rights for all, an event like this calls into question the practices of our justice system and those in power. It most certainly should not have taken a miraculous confession from a serial rapist for these innocent men to be free. The law enforcement we are expected to put our trust in, the media we look to for reliable news, and the society we call our home, all played a substantial role in the wrongful conviction of these innocent black boys on the basis of racial bias. Nonetheless, the implications of this case have also opened the conversation of reassessing cases of the same nature. and have spread awareness about disparities in the American criminal justice system. This case can be best captured as a grievous miscarriage of justice and marks a significant moment in American history, signifying the work that still needs to be done. Stories of issues within the legal system disproportionately impacting the Black community such as the case of the Exonerated Five are more common than most realize, and in analyzing the unjust procedures that took place we are one step closer in our pursuit of establishing a just legal system for all.

References

History.com Editors, “The Central Park Five”, HISTORY, A&E Television Networks, May 14, 2019

1 BBC News. “Central Park Five: The True Story behind When They See Us.” BBC, BBC News, 12 June 2019

Coppolo, George, and Chief Attorney. “Interrogation of Minors-Presence of Parents or Guardians.” The Office of Legislative Research (OLR), March 1, 2000

Nesterak, Evan. “Coerced to Confess: The Psychology of False Confessions.” Behavioral Scientist, 21 Oct. 2014

Phillips, Kristine. “Police Misconduct, Such as Falsifying Evidence, Is a Leading Cause of Wrongful Convictions, Study Finds.” USA Today, USA TODAY, 15 Sept. 2020

Laughland, Oliver. “Donald Trump and the Central Park Five: The Racially Charged Rise of a Demagogue.” The Guardian, The Guardian, 17 Feb. 2016

Art by Thomas "Detour" Evans

The Domino Effect of Mass Incarceration

by Ilu Tefera

The United States has a history of enacting laws and policies intended to harm Black and Brown people. The disregard for our humanity is evident in how our criminal justice system treats so many of our people, especially regarding drug sentencing laws that negatively affect Black and Brown communities. The imprisonment of large Black populations (sons, fathers, and brothers) has a detrimental impact on the mothers and children left behind. Additionally, most Black women in U.S. prisons are mothers who leave behind children and families that must learn to cope without them. The structural racism in our (in)justice system has disastrous effects on all exposed, particularly those who watch helplessly as their loved ones are thrown in cages. The children left alone after their parents are caught in the system are forced to navigate a world that’s already working against them. The U.S. government must be held responsible for the over-criminalization of Black and Brown people and for keeping so many incarcerated for too long. Systemic racism has been the leading cause of mass incarceration and is the reason we see this domino effect that inevitably affects all those involved. Those upholding this broken system continue to destroy Black communities then turn around and ask: “why can’t you keep your families together?” Questions like this perpetuate negative stereotypes about Black people and make it seem as though the crisis we’re facing is due to our innate characteristics. For this narrative to cease, the far-reaching effects of mass incarceration must be known.

Everyone can appreciate the benefits of eradicating crime and violence, but the U.S. imprisons so many people that it harms communities more than it helps them. Many areas in the nation are still racially segregated residentially, and once the incarcerated return home they often become a burden on their communities because they’re unable to find work that’ll allow them to support themselves; mental health issues can also contribute to turbulent relationships for the previously incarcerated. The system is set up so those released are lucky if they can find a job or feed their families. This cycle that pulls felons from poor areas only to release them back to these same places once their time is up is known as “coercive mobility”. The incarcerated are not rehabilitated, meaning the substance abuse and mental health problems they entered prisons with leave with them, causing more problems for their communities. The consequences incarcerated folks face after release are often too much and may lead many to believe it’s better to go back to prison; others are killed in the streets or commit suicide. Inmates are legally denied access to social programs such as welfare benefits, voting rights, public housing access, college aid, and the right to live and work in some areas. This harsh punishment after incarceration is the effect of breaking the social contract, but denying people these benefits also hurts those who rely on them, like their children. The consequences that follow felons after release create a chain reaction that damages the lives of all those connected to them.

The academic performance of a child with one or both incarcerated parent(s) is negatively affected by the devastating loss of a loved one. Although white children also deal with this challenge, the number of African-American children suffering this loss works against efforts to raise the group’s level of academic success (Morsy). The concentration of Black children with an incarcerated parent(s) in disadvantaged communities provides teachers and educators with difficulties that rarely accompany the imprisonment of a white child’s parent. It’s important to acknowledge that children are harmed by parental incarceration, alongside the conditions found within struggling communities. Not every child suffers the same but incarcerating a parent can have disastrous effects, including limiting a child’s potential in school and leading them to bad habits, such as substance abuse. The U.S. prison system incarcerates Black men at an alarming rate and the effects are often more damaging to the community than the imprisoned individual. The family members of incarcerated folks are rarely involved in their crimes so the hardships they face are cruel collateral served up by our criminal (in)justice system (Savat). For some children, this experience translates

to social and behavioral issues and a stigma of parental incarceration that leaves a chip on their shoulders. This demonstrates how the U.S. carceral system continues to harm African-Americans. These children are 50% more likely to develop ADHD and are at higher risk of developmental delays (Morsy). These same behavioral issues are also found among children who experience events such as parental divorce or death, demonstrating the severity of mass incarceration’s effect on children. The interconnectedness between the U.S. federal system and aspects of our daily lives cannot be understated. Children who lose a parent to the system often lose their primary caregiver, which can introduce them to a life of economic instability if they weren’t living one already. Parental income has a strong influence on how children do in school and later in life; “Of American children born to parents with incomes in the bottom income quintile, almost half (43 percent) remain trapped in the bottom quintile as adults and only 30 percent make it to the middle quintile or higher. African Americans have even less mobility” (Morsy). This domino effect is harmful to the incarcerated, the people they leave behind, and the generations that will follow and enables a continuous cycle of oppression perpetuated by America’s legal system. When people’s own government is working against them it inadvertently makes other aspects of their lives more difficult: job security, social status, etc. and this creates a domino effect in the lives of many African-Americans. While paternal incarceration strongly affects sons, maternal incarceration has resulted in over 100,000 children being put into foster care, often leading to poor school performance (Morsy). African-American children of incarcerated fathers are also at higher risk of becoming homeless, along with a whole slew of other problems. The conditions that mass incarceration creates for the children affected are far more negative than positive. The imprisonment of a felon should improve, not exacerbate, their circumstances. Sadly, the U.S. criminal justice system is responsible for indirectly harming one of our most vulnerable groups: Black children.

Nonetheless, the carceral system’s effects on Black women and infants are more severe than on other groups. Single mothers left alone with children and no means to raise them are at the mercy of government programs, such as food stamps and public housing. The population of women who find themselves incarcerated while pregnant face a unique set of trials and tribulations; mistreatment and mismanagement within prisons “can produce high levels of stress and exacerbate pregnancyrelated mental health disorders, which are already disproportionately experienced by Black women” (Maxwell). Women are also shackled for transport to the doctor and hospital for labor and delivery, a practice that increases the risk of birth complications and promotes high levels of stress. Additionally, the Center for American Progress has found evidence that contact with the prison system produces toxic stress; a contributing factor responsible for the difference in black and white infant mortality rates. If U.S. incarceration rates were consistent with those of the 1970s, current infant mortality rates would be 7.8% lower and the variance between white and Black women 15% smaller, meaning more Black children would live through childbirth if mass incarceration didn’t target African-Americans (Maxwell). Black women continue to be mistreated in nearly every space in this country. From hospital rooms to prison yards, it’s as though Black women are the punching bag for everyone to lash their pain on. Unfortunately, the majority of incarcerated women are also mothers, many of whom were the primary caregiver to young children. While imprisoned, they’re kept in facilities over 100 miles from their children and over one-third of women don’t see their children at all; this is eerily similar to the separation of slave mothers and their children, demonstrating another present-day issue that can be traced back to America’s racist origins. The devastating effects of mass incarceration are able to harm our children before they’re even born.

African-Americans are also more likely than their white counterparts to come in contact with the criminal justice system earlier in life; this remains true even among the middle and upper class. These Black children are at risk of being placed in foster care and incarcerated mothers may not get their children back, even after their release and successful reentry as contributing members of society. The overrepresentation of Black women in U.S. prisons leads to dehumanizing experiences that create mental and physical health problems for the mothers and young children involved.

The U.S. government has successfully criminalized being Black while simultaneously making a profit off the Black bodies that inhabit their prisons. Our criminal justice system offers different sentences for the same crime based on a person’s race and ability to pay up. The damage done goes far beyond the incarcerated to reach the communities and loved ones they leave behind, creating longterm consequences affecting many generations. The U.S. legal system is set up to do what this country has always been known to do: disregard and destroy Black life at all levels.

References

Crutchfield, Robert D, and Gregory A Weeks. “The Effects of Mass Incarceration on Communities of Color.” Issues in Science and Technology, 17 Mar. 2021, https://issues.org/effects-mass-incarceration-communities-color/.

Maxwell, Connor Interim Vice, and Danyelle Solomon. “Mass Incarceration, Stress, and Black Infant Mortality.” Center for American Progress, 25 Mar. 2021, https://www.americanprogress.org/article/ mass-incarceration-stress-black-infant-mortality/.

Morsy, Leila, and Richard Rothstein. “Mass Incarceration and Children's Outcomes: Criminal Justice Policy Is Education Policy.” Economic Policy Institute, https://www.epi.org/publication/mass-incarceration-and-childrens-outcomes/.

Savat, Sara. “For 50 Years, Mass Incarceration Has Hurt American Families. Here's How to Change It - The Source - Washington University in St. Louis.” The Source, 14 Oct. 2021, https://source.wustl.

California Education: Another System Fails Black Life

by Amadi Maatafale

Introduction

Students of color in California often attend public schools where unfortunately many districts are underfunded, and this funding inequality hinders Black students’ socioeconomic mobility. In a nation which pushes education as the way to overcome socio-economic disadvantages, vast funding disparities between school districts place the quality of marginalized students’ lives substantially behind their peers.

K-12 schools in Califor nia's public education system face a funding problem. Most of the funding problems affect schools in low-income communities where the vast inequalities and disparities found throughout the system are compounded. The public school system's lack of funding and equitability has always gone hand-in-hand with the state's racial discrimination against marginalized communities. A report published by the EdBuild, a research and advocacy group in New Jersey, showed that school districts who serve predominantly Black and Brown students receive approximately 23 billion dollars less in funding than schools that serve predominantly white students. California –home to countless tech giants, an enormous entertainment industry, major agricultural regions, and many other successful industries– is the fifth largest economy globally and the wealthiest state in the nation. Earning more than $10,000 above the national average, the median income of a Californian household is $71,000 per year. California is near last nationally in school spending, the number of staff in its schools, and in academic performance. California’s school funding was insufficient to meet state and grades standards and address the needs of students, particularly given the state’s high cost of living. The struggle school’s faced was exacerbated by the pandemic. In school spending helped to lift achievement over the past half-century. California’s ambitious effort–progressively distributing $23 billion in yearly funding to poorer districts– has yet to reduce disparities in learning.

This ar ticle takes a pragmatic approach to the issue of school funding in California. This article establishes how California has never done right by Black students by establishing the origin of funding disparities, California’s attempt to create equality between school districts, and the failure of that attempt. The State of California’s efforts to make school districts equitable has at best fallen short, and at worst, been entirely insufficient to meet students' needs. This paper argues that to provide equitable funding California has to get rid of the current funding formula because the formula leaves intact key aspects that have been proven to insufficiently meet the needs of Black students. In order to understand what needs to change, the article first reviews how funding for California public schools changed starting in the 1970’s, which later led to the decision in Serrano v. Priest(1971).

History of School Funding in California

Until the late 1970’s, California funded its schools through local property taxes charged at rates set by local school boards. The amount raised for local schools drastically differed from one another, depending on the local tax rate and the assessed value of local homes and commercial properties. California’s public schools divided funding into three categories: property tax (60%), state (34%) and federal (6%). Counties and neighborhoods with higher property values were able to direct more money to the local education system. Districts in affluent suburban neighborhoods had better schools than inner-city areas. Public school districts in wealthy white suburbs were far ahead of Black and Latino neighborhoods many of which were still subject to forms of de facto racial segregation. The large wealth gap between various districts with respect to tax base and expenditures meant poorer districts had to tax themselves at much higher rates to match the expenditures of wealthier districts, if this was even possible . In the late 1960s, for example, the Baldwin Park Unified School District in Los Angeles County spent $577 per pupil . Meanwhile, Beverly Hills spent $1,231, though it taxed

itself at half the rate. The reason for the disparity was clear: In Baldwin Park, total assessed property value translated to less than $4,000 per child, while in Beverly Hills, it equaled over $50,000 per child. As a result in 1968-69, the Baldwin Park School District spent $577.49 to educate each of its pupils, while Pasadena spent $840.19 and Beverly Hills spent $1,231.72.

The Attempted Fix

Serrano v. Priest (1971), initiated by John Serrano and Ivy Baker Priest in 1968, brought to light the inequitable school funding caused by wealth gaps between districts . Serrano(1971) challenged the inequities created by the U.S. tradition of using property taxes as the principal source of revenue for public schools. California’s method of funding public education, because of these district-to-district disparities, “fails to meet the requirements of the equal protection clause of the Fourteenth Amendment of the United States Constitution and the California Constitution.” “[As] a direct result of the financing scheme they are required to pay a higher tax rate than [taxpayers] in many other school districts in order to obtain for their children the same or lesser educational opportunities afforded children in those other districts.” The Supreme Court of the United States held the vast discrepancies in school funding because of differences in district wealth represented a denial of equal opportunity. Serrano v. Priest (1971) required California to separate total school district spending from local assessed property value.

The State legislators passed Senate Bill 90 in 1972; the revenue limit system it created put a ceiling on the amount of general-purpose money each district could receive. The Legislature authorized the State Board of Control to hear and decide upon claims requesting reimbursement for costs mandated by the state. In 1976, as a response to the Supreme Court’s decision in Serano (1971) California forced district equalization by adjusting districts’ revenue limits.State leaders increased revenue limits faster for low-spending districts to close the gap over time. The court focused only on general-purpose operating expenditures, ignoring categorical aid and construction funds. The Court’s decision held a broad approach to the law leading to problems becoming exacerbated in low-income districts. California state leaders never dealt with the system of how school districts funded capital expenditures, facilities and infrastructure cost – which to this day depend on the very inequities the Court found so objectionable in the decision of Serrano V Priest (1971) . Before the state could equalize spending, voters passed California’s 1978 Proposition 13 in 1978 which drastically cut local property taxes and school revenues. California’s Proposition 13 drastically cut and capped property taxes at 1% and crippled the ability of California counties – and, indirectly, the state – to raise money for schools . California made up some of the lost funding in local school districts and assumed primary responsibility for funding schools. In most districts, property taxes, at 1% of assessed value, were not enough to cover the revenue limit requirements set in the Court’s decision of Serrano(1971) . Even though the State of California attempted to recoup lost funds, fiscal cuts were inevitable. Summer schools and adult education programs were among the first cut. Vocational education, counseling, maintenance, assistant principals, and librarians soon followed. California’s 1978 Proposition 13 decision removed the power of school boards to impose local property taxes for local schools. School districts had no local control over the amount of money available to fund their schools. To prevent education funding from plummeting, the California legislature stepped in, allocating state funds from a budget surplus to protect schools from what would have otherwise been massive cuts. In an effort to stabilize school funding, voters passed Proposition 98 in 1988. The measure designated about 40% of the state’s General Fund revenues for K–12 schools and community colleges. California’s 1978 Proposition 13 centralized power over the education system in the capitol. The California State Legislature and the governor became responsible for determining how funding would be distributed to districts. School boards were left with the narrower job of playing the hand dealt to them by the state.

By 1983 the State of California had assumed control of approximately 80% of all school funding, leaving schools vulnerable to the volatility of the state’s sales and income-tax revenue

streams. Overnight, the tax revenue available to pay for public schooling was slashed by one-third. In 1977, California spent about $7,400 per pupil, about $1,000 above the national average . Between 1970 and 1997, per pupil spending in California fell more than 15 percent relative to spending in other states. By 1983 when the Court, ruled on Serrano v Priest (1971 declared the equalization job was done, California’s per pupil spending had dropped to $6,700, dipping below the national average, where it has generally stayed.

Failure of System to Adequately Address Funding Issues

The state determined how districts spent educational funding through a complex system of 50+ restricted “categorical” programs. Despite additional funding meant to offset differences, the budgets of low-income districts with high-need students often fall extremely short of reaching anything similar to that of their wealthier counterparts. Districts in wealthy neighborhoods can use the 1% assessed value from surrounding property to supplement state funding.

Taking Laguna Beach Unified School District as an example, the second best school district in California spends $20,467 per student each year. Comprised of only four schools with a total of 2,788 students and 30% minority enrollment, Laguna Beach Unified School District gets 87.5% of its funds locally, only 10.9% of funding comes from the state government. Districts like Laguna Beach Unified School District have the ability to enhance programs instead of cutting them. The wellfunded district students are not subject to the many budget cuts of poorer districts– meaning students have access to counselors, after-school programs, and their schools are maintained. Providing students with amenities and resources is an ability many low-income schools can not afford. There is also a tendency to section off small affluent islands of well-funded schools in larger disadvantaged areas that serve mostly students of color. Predominantly white districts are typically smaller, yet receive $23 billion more than districts that are predominantly students of color. Smaller districts offer more local control, often encouraging more investment in education since the investment is directly observable in the school’s physical environment and student outcome.

Compared to districts in the lower 50%, Laguna Beach Unified School District is far ahead. Oakland Unified School District, for example. contains 87 schools and 36,154 students. The district’s minority enrollment is 90% with 53.0% of the district’s students being economically disadvantaged. Oakland Unified School District spends $15,554 per student each year, with 49.5% of the district's funding coming from the state, 41.4% coming from the local area. Compared to Laguna Beach Unified, Oakland Unified has more than X12 the students, more than X21 the school buildings, and more high-need students. Districts with many economically disadvantaged minority students require considerably more money because students need more resources. Districts, such as Oakland Unified, were supposed to be equitable to districts similar to Laguna Unified, yet the inherent disadvantages of low-income districts make equitability unreachable.

California created a new school funding formula in 2013 as an attempt to make school’s across districts more equitable. Named the Local Control Funding Formula (LCFF), the law shifts towards a simpler, more rational and equitable school finance system. The new law “aims to improve outcomes by providing more resources to meet the education needs of low-income students, English language learners and foster youth.” LCFF gives a greater level of autonomy to districts by giving them greater flexibility over how they choose to spend state funding. In exchange for greater flexibility, school districts must provide greater transparency on how the money will be spent. School districts are required to produce a 3-year spending and academic plan called the Local Control and Accountability Plan (LCAP). A district must explain in its local spending plan how its use of supplemental and concentration funds will “increase or improve services” for high-need students “in proportion to the increase in” supplemental and concentration funds it receives. Districts are required to annually update its plan, whether schools adhered to its plan, and what progress has been made to close gaps between districts.

With the exception of a few remaining categorical funds, money will go directly to districts

based on student attendance. Each district will receive the same base grant for each student based on grade level. Then, the district will receive additional “supplemental” and “concentration” grants based on the numbers and concentration of high-need students (defined as low-income, English language learner, or foster youth under the law). LCFF is supposed to give districts that serve more high-need students more funding overall than a district of the same size that serves fewer high-need students.

California’s adoption of the Local Control Funding Formula leaves important aspects of the prior K-12 funding system intact. The new funding approach California state leaders took to equalize school districts left districts serving primarily Black students at an inherent disadvantage. Funding for facilities still depends crucially on local property wealth, which has been shown to be a detrimental way to make districts equitable. Per student state funding is still highest in the districts with the fewest high-need students. Children living in disadvantaged communities tend to have high rates of school truancy, disengagement, and chronic absenteeism, making funding based on attendance flawed. Schools in predominantly Black communities continue to feel the effects of California’s 1978 Proposition 13 and the Local Control Funding Formula does nothing to reverse the effects. In order for school districts in predominantly Black low-income communities, where fiscal cuts were inevitable, to become equitable the schools need separate maintenance funding specifically to reverse the effects of budget cuts. Separate funding would provide schools the ability to enhance their facilities, provide necessary up-to-date educational supplies, and support staff.

Conclusion

Until the late 1970’s, California, like most states, funded its schools through local property taxes levied at rates set by local school boards. California is spending less on education because of policy choices it has made. The state directs fewer resources to education than do other states, and its chosen tax sources are volatile, making education funding vulnerable during economic downturns.For decades California’s state spending on education has been subpar. The Golden state’s subpar abilities have come at the cost of Black and Brown children’s education.

Reasonably Suspicious Police

by Jayda Jackson

The landmark supreme court case Miranda v. Arizona in 1996 narrowed police power to prohibit questioning people without a lawyer’s presence. Nonetheless, police power constantly evolves. Within the expansion of police power is the practice of stop-and-frisk policing in which police officers stop an individual they believe to be suspicious, question the individual, and in some cases pat the individual down in search of weapons or other contraband. This policy aims to decrease crime by preventing criminal acts before they happen. However, this practice creates an inevitable issue: this country’s overtly racist police. Stop-and-frisk policing gives police the ultimate authority to stop individuals based on reasonable suspicion. Black and brown people in America are already highly scrutinized and targeted by law enforcement and this type of policing perpetuates oppressive cycles of incarceration. The horrific police killings of Michael Brown and Eric Garner were products of the police’s right to approach individuals who they deemed suspicious. The basis of reasonable suspicion is highly subjective and expands police authority over people and as a result, people of color are more fearful, paranoid, and overall tired which is harmful to their right to a peaceful life, free of discrimination and terror.

The landmark Supreme Court case, Terry v. Ohio (1968), justified the police’s use of stop-and-frisk policing in conjunction with reasonable suspicion and argued that searches conducted by the police are not a violation of the Fourth Amendment. On October 31st, 1963, John Terry and Richard Chilton, two Ohio men, were subject to a police search from Cleveland police detective Martin McFadden after he believed the two were about to rob a store. Upon searching, McFadden found pistols on the two men and Chilton and Terry were tried and convicted for carrying concealed weapons. The men appealed and argued that the search was illegal. However, the conviction was held. In 1967, Terry’s case was argued before the United States Supreme Court (Chilton passed away before his case could make it).

The Warren Court ruled that police detective McFadden had the authority to conduct the search on the basis of officer safety. Rather than gathering evidence for a crime, the stop-and-frisk in this case was used to find concealed weapons that could pose an imminent threat to the officer or other people. Furthermore, the Court held that the search was definable by the Fourth Amendment (which would then make the search unconstitutional), however, they argued that not all searches are unconstitutional due to the loophole of reasonable suspicion. The decision was eight-to-one. The single dissenter, Justice William O. Douglas, argued that the standard threshold of probable cause should be the justification for a police search. The Terry ruling gives officers the authority to disregard probable cause if there is reasonable suspicion that one may commit a crime. Reasonable suspicion presents issues because implicit biases affect police judgments and harms some innocent people in the process. The dismissal of probable cause and inclusion of reasonable suspicion in this case expanded and intensified the power and scope of American police by granting them the authority to deem people suspicious based on their own judgment.

The scope of police authority has expanded through reasonable suspicion granted in Terry v. Ohio. Court cases such as Minnesota v. Dickerson challenged the broad umbrella of stop-and-frisk policing. The lower courts arguing this case held that a person who is in an area of high crime and is evasive towards police constitutes a sufficient basis for reasonable suspicion. These factors grant police much authority to stop people based on factors such as, where one lives or who one interacts with. Despite the Supreme Court arguing that location is not adequate enough to uphold reasonable suspicion, the lower courts acknowledge that location and evasion were the main reason for a police stop, meaning that those justifications can still get someone in trouble with the law. These grounds are problematic because poor and minority communities tend to live in areas with high crime. The high criminal activity prompts underserved groups to be evasive towards police for fear of profiling

and potential harassment.Furthermore, highly-targeted groups aim to avoid the police to protect themselves from police who seek to persecute them. The stark disconnect between the Supreme Court’s views and the lower court’s views on reasonable suspicion present a dangerous outcome that increases police authority in deciding who to stop-and-frisk which perpetuates unfair policing.

With already heightened tensions between the police and people of color, the basis of reasonable suspicion incentivises police to act on their racist implicit biases and target minority communities. Young men and women of color are disproportionately affected by police stops, and therefore these men and women are under greater pressure and scrutiny due to the frequent stops they endure. In 2013, Black people were 3.5 times more likely to be stopped by police than white people in Ferguson, Missouri. In these stops, Black people were stopped for investigative reasons while white people were stopped for moving violations. Though Black people constitute a small number of large cities’ populations, Black people are subject to the most stop-and-frisks in those areas. Additionally, police officers’ implicit bias impacts the number of people of color targeted by police. In active shooter experiments, subjects identify and shoot armed individuals or not shoot unarmed individuals. Denver police officers shot more armed Black individuals than armed white individuals. These types of experiments uncover the implicit racism that plagues police officers which influences who the officers target and harass. Implicit bias fuels police judgment of reasonable suspicion and conveys the immense subjectivity of reasonable suspicion.

Fur thering the idea that reasonable suspicion is subjective and expands police power, in some cases, police dismiss reasonable suspicion and just racially profile minority groups through stop-andfrisk policing. Stop-and-frisk policing is infamous in New York, as the New York Police Department has engaged in this practice for many years. In an effort to revisit the landmark Terry v. Ohio (1968) case, the Center for Constitutional Rights filed a class action lawsuit against the New York Police Department in 2013 for the NYPD’s use of racially-motivated stop-and-frisks. This case focuses on the lack of reasonable suspicion cops provided when making these stops. Floyd, et al v. City of New York, et al, a historic ruling, found the NYPD’s stop-and-frisks to be unconstitutional. Though unconstitutional, the stops never ended. During the COVID-19 pandemic, New York’s number of reported stops were lower than usual, however, people of color still constituted a large number of those stops. At the peak in 2011, out of 700,000 stops made by police in New York, 90% of those stops were people of color. These numbers convey the appalling racial profiling of the NYPD that harms the freedoms of minority groups. Stop-and-frisk policing in conjunction with reasonable suspicion and racial profiling allows officers to abuse their duty to “protect and serve” by targeting minority populations.

The overall ambiguity and uncertainty in phrases such as “probable cause” and “reasonable suspicion” in the law present dangerous rooms for interpretation. The law that binds law enforcement has been elucidated to justify harmful practices against the people they were created to “protect.” The expansion of police power has not been as useful in stopping crime than it has been in growing the fear and paranoia within citizens, especially citizens of color. Numerous sources of data find that minorities are racially profiled and stopped by the police more than whites. This large disparity of racial profiling does not halt crime and violence: Instead, it keeps minorities in cycles of poverty and oppression through tough policing and scrutiny which hinders these communities from their right to a peaceful life without prejudice and harassment.

References

Miranda v. Arizona, 384 U.S. 436, 436 (1966)

Stop and frisk, WEX, https://www.law.cornell.edu/wex/stop_and_frisk (last visited May 16, 2022).

Reasonable Suspicion, WEX, https://www.law.cornell.edu/wex/reasonable_suspicion#:~:text=Reasonable%20suspicion%20is%20used%20in,a%20reasonable%20suspicion%20to%20search (last visited May 16, 2022).

Terry v. Ohio, 392 U.S. 1, (1968)

Terry v. Ohio, 392 U.S. 1, 58 (1968) (Douglas, W., dissenting).

David A. Harris, Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked, 69 Ind. L.J. 659, 671 (1994).

Nazgol Ghandnoosh, Black Lives Matter: Eliminating Racial Inequity in the Criminal Justice System, https://www.sentencingproject.org/publications/black-lives-matter-eliminating-racial-inequity-in-the-criminal-justice-system/#B.%20Four%20key%20sources%20of%20unwarranted%20racial%20 disparities%20in%20criminal%20justice%20outcomes (last visited May 16, 2022).

Floyd, et al. v. City of New York, et al., 959 F. Supp. 2d 540, 544 (2d Cir. 2014).

Floyd, et al., 959 F. Supp. 2d at 550.

Alice Speri, The NYPD Is Still Stopping And Frisking Black People At Disproportionate Rates, The Intercept, https://theintercept.com/2021/06/10/stop-and-frisk-new-york-police-racial-disparity/ (2021).