Dr. Jamie Binnall, author of 

This week, Cody Duran hosts Professor Darrell Jackson, J.D., Ph. D. a Professor of Law and the Faculty Director of the Prosecution Assistance Program at the University of Wyoming College of Law. Professor Jackson discusses a wide range of issues in the criminal trial process, and how a prosecutor’s power and role fits into that process. The discretion given to a prosecutor strikes a balance in power between the prosecutor and the judge, and the prosecutor is the first in line to determine whether and how a case will proceed. This episode discusses how implicit biases and institutionalized disparities affect the decision-making process at each phase of the trial.
Sources:

Research Finds Evidence of Racial Bias in Plea Deals, Equal Justice Initiative (https://eji.org/news/research-finds-racial-disparities-in-plea-deals/)

William Rhodes, Ryan Kling, Jeremy Luallen, Christina Dyous, Federal Sentencing Disparity: 2005–2012, Bureau of Justice Statistics (https://www.bjs.gov/content/pub/pdf/fsd0512.pdf)

Joshua Dressler, George C. Thomas III, Daniel S. Medwed, Criminal Procedure: Principles, Policies, and Perspectives (7th Ed.)

Lauren and Nathan sit down to discuss the role of race in the jury selection process. Despite a lot of rhetoric from the courts about ending racism in the criminal justice process, jury selection remains on of the most transparent areas of race discrimination in the criminal justice system today. Each step of the jury selection process, from the initial drawing of names into the jury pool all the way to juror impanelment, operates to preclude racial minority jurors. The result is racially homogenized juries of mostly affluent white citizens. The reality of the all-white jury is that African Americans are over-represented as defendants in trials, but severely underrepresented as participants in the jury decision process. One of the main functions of the criminal jury is to give legitimacy to criminal justice system. When juries are disproportionately white and the operation of structural racism prevents a “fair cross-section” of society from participating in jury service, the verdicts from criminal trials are called into question. And subsequently, so is the fairness of the criminal justice system itself.       

References: 

Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2011).

Klarman, Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality  (2005).

Berkeley Law Death Penalty Clinic, Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors (June 2020): https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/ 

Equal Justice Initiative, Illegal Race Discrimination in Jury Service: A Continuing Legacy (2010): https://eji.org/reports/illegal-racial-discrimination-in-jury-selection/ 

Key Cases Referenced: 

Amadeo v. Zant, 486 U.S. 214 (1988).

Batson v. Kentucky, 476 U.S. 79 (1986) (holding a defendant can challenge a prosecutor’s use of the peremptory strike under the Equal Protection Clause of the 14th Amendment).

Berghuis v. Smith, 559 U.S. 314 (2010) (reaffirming the Duren test).

Duren v. Mississippi, 439 U.S. 357 (1979) (creating the test for determining when the 6th Amendment’s “fair cross-section” requirement is violated).

Flowers v. Mississippi, 139 S. Ct. 2228 (2019) (reaffirming Batson).

Powers v. Ohio, 499 U.S. 400 (1991) (finding a white defendant has third party standing to raise a Batson challenge on behalf of a struck juror). 

Purkett v. Elem, 514 U.S. 765 (1995) (allowing prosecutors to offer any “silly or superstitious” reason to strike a racial minority juror, so long as it is race-neutral).

Ramos v. Louisiana, 140 S. Ct. 1390 (2020) (holding that unanimous jury verdicts must be obtained in all criminal trials a the Federal and State level).

Roberts v. State, 2018 WY 23, 411 P.3d 431 (Wyo. 2018) (finding Wyoming’s first Batson violation).

Strauder v. West Virginia, 100 U.S. 303 (1880) (holding a citizen cannot be removed as a juror solely on the basis of race).

Taylor v. Louisiana, 419 U.S. 522 (1975) (finding that the 6th Amendment requires a juror pool to consist of a “fair cross-section” of the community).

Lauren sits down with Karlee Provenza, a doctoral candidate at the University of Wyoming, community organizer, and newly elected State House Representative, to discuss issues in the criminal justice system at the local and national levels. Specifically, Karlee talks about how civilians can organize at the local level to demand criminal justice reform from their representatives in government. One particular reform discussed is a Civilian Oversight Board of police. The overarching theme in demanding reform is transparency and accountability on the part of law enforcement and government officials. We all must act together to ensure the change we need happens. 

Sources Referenced:

Albany County for Proper Policing,https://acopp.org/

Laramie Human Rights Network, https://www.laramiehumans.org/ 

National Association for Civilian Oversight of Law Enforcement (NACOL): Building Public Trust Through Law Enforcement Accountability and Transparency,https://www.nacole.org/ 

Police Shooting Database 2015-2020, The Washington Post, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/ 

“Police Shooting Stirs Long-Simmering Tensions In Riverton,” Wyoming Public Media (2019), https://www.wyomingpublicmedia.org/post/police-shooting-stirs-long-simmering-tensions-riverton#stream/0 (discussing the police shooting and killing of 58-year-old Anderson Antelope).

“Two lives, a police shooting and Laramie torn asunder,” Wyofile, (2018), https://www.wyofile.com/two-lives-a-police-shooting-and-laramie-torn-asunder/ (discussing the police shooting and killing of Robbie Ramirez).

“UW opens Black Studies Center to engage Wyoming’s legacy of racism.” Laramie Boomerang (2020), https://www.laramieboomerang.com/news/uw-opens-black-studies-center-to-engage-wyoming-s-legacy-of-racism/article_44263ada-924d-57d4-a5fb-f5be176140fa.html 

Representative John Lewis, Address at the 2013 American Constitution Society Convention (Nov. 21, 2013), available at: https://www.acslaw.org/video/highlights-of-rep-john-lewis-speech-to-2013-acs-national-convention/ (last visited 8/5/2020). (Source of our introduction).

Wyoming Science Communication Initiative, http://www.uwyo.edu/wysci/ (2020).

In this weeks episode, Matt Klein sits down with Dr. Frederick Douglas Dixon of the University of Wyoming, to discuss how the dehumanization process of Black people in the United States helps us understand a culture of accepting police brutality as a normal practice. The discussion ranges from the Trans-Atlantic Slave trade, through reconstruction, the Civil Rights movement and Dr. Martina Luther King Jr., the Black Freedom Movement and Chairman of the Black Panther Party, Fred Hampton, all the way to the recent assassination of George Floyd. We explore the ways in which a country and its government, and law enforcement agencies, have perpetrated violence and systematically created a subclass of human that has lead to an acceptance of the murder of Black people at the hands of police officers. Through a discussion of in depth history, reformist movements such as Black Lives Matter, and personal stories of a young man growing up on the South Side of Chicago in the midst of a notoriously corrupt police department, Dr. Dixon provides prospective and insight into understanding how and why our system and society allows for acts of violence against the Black community as a normal course of daily activities.

In Episode 3, Cody Duran talks with Tamara Brady, a Colorado Public Defense Attorney specializing in Capital Punishment cases. Cody and Tamara discuss the history of the Death Penalty in the United States, and how race, as it has with most areas in the Criminal Justice system, has continued to play a role in both the prosecution and imposition of the Death Penalty. The current case law allows for the Death Penalty, and about 25 states plus the federal government still use the Death Penalty, and continues to use it in disproportionate numbers against African American and other minority communities.

Cases Discussed

Furman v. Georgia, 408 U.S. 238 (1972) (holding the imposition of the Death Penalty in three Georgia cases violated the Eighth Amendment protection against cruel and unusual punishment because its application was arbitrary and capricious).

Georgia v. Gregg, 428 U.S. 153 (1976) (holding the imposition of the Death Penalty with additional structured requirements in the revised Georgia statute did not violate the Eighth Amendment).

McCleskey v. Kemp, 481 U.S. 279 (1987) (holding that defendant must show purposeful discrimination to establish Equal Protection claims under the 14th Amendment).

Ring v. Arizona, (application of Apprendi v. New Jersey, to Capital Cases; requiring juries to find aggravating and mitigating factors in the sentencing phase of a capital case).

Other Sources

Meg Beardsley, Sam Kamin, Justin Marceau & Scott Phillips, Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century (2015).

Death Penalty Information Center (www.deathpenaltyinfo.org)

 In Episode 3, Cody Duran talks with Tamara Brady, a Colorado Public Defense Attorney specializing in Capital Punishment cases. Cody and Tamara discuss the history of the Death Penalty in the United States, and how race, as it has with most areas in the Criminal Justice system, has continued to play a role in both the prosecution and imposition of the Death Penalty. The current case law allows for the Death Penalty, and about 25 states plus the federal government still use the Death Penalty, and continues to use it in disproportionate numbers against African American and other minority communities.

Cases Discussed

Furman v. Georgia, 408 U.S. 238 (1972) (holding the imposition of the Death Penalty in three Georgia cases violated the Eighth Amendment protection against cruel and unusual punishment because its application was arbitrary and capricious).

Georgia v. Gregg, 428 U.S. 153 (1976) (holding the imposition of the Death Penalty with additional structured requirements in the revised Georgia statute did not violate the Eighth Amendment).

McCleskey v. Kemp, 481 U.S. 279 (1987) (holding that defendant must show purposeful discrimination to establish Equal Protection claims under the 14th Amendment).

Ring v. Arizona, (application of Apprendi v. New Jersey, to Capital Cases; requiring juries to find aggravating and mitigating factors in the sentencing phase of a capital case).

Other Sources

Meg Beardsley, Sam Kamin, Justin Marceau & Scott Phillips, Disquieting Discretion: Race, Geography & the Colorado Death Penalty in the First Decade of the Twenty-First Century (2015).

Death Penalty Information Center (www.deathpenaltyinfo.org)

Lauren and Nathan discuss the Fourth Amendment of the U.S. Constitution and how the Supreme Court has weakened its protections against unreasonable searches and seizures. Under the current Fourth Amendment case law, police have unfettered discretion in how they conduct their investigations, which has helped to further perpetuate racial disparities in the criminal justice system.

Episode One (Part Two) Research Notes:

Books Referenced:

Frank R. Baumgartner, Derek A. Epp, & Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race (2018).

Michael Tonry, Punishing Race: A Continuing American Dilemma (2011).

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2011).

Cases Referenced:

Atwater v. City of Lago Vista, 532 U.S. 318 (2001) (holding that an officer’s subjective intentions for making a discretionary arrest are not relevant in the Fourth Amendment’s reasonableness analysis – setting the stage for pre-text arrests).

California v. Acevedo, 500 U.S. 565 (1991) (Breyer, J., dissenting) (calling the conservative majority of the Court “loyal foot soldiers in the Executive’s fight against crime,” i.e. – War on Drugs based on the facts of the case).

Florida v. Bostock, 501 U.S. 429 (1991) (holding police do not have to inform an individual of their right to refuse a consent search).

Graham v. Connor, 490 U.S. 386 (1989) (holding that officers’ subjective intentions do not play a role in the reasonableness analysis when determining whether an officer used excessive force).

McCleskey v. Kemp, 481 U.S. 279 (1987) (reinforcing the purposeful discriminatory intent rule despite extremely strong evidence of disparate racial impact – virtually closing off all equal protections claims to sentencing).

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (allowing police to make drivers leave their cars during routine stops for officer safety).

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding consent was voluntarily obtained despite Bustamonte’s unawareness of his right to refuse consent, which provoked the dissent to point out how the “police [will] capitalize on the ignorance of citizens” to disregard the limitations placed on them by the U.S. Constitution).

Tennessee v. Garner, 471 U.S. 1 (1985) (holding an officer may not use excessive force “unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others”).

Terry v. Ohio, 392 U.S. 1 (1968) (holding an officer’s “stop and frisk” of an African American man is constitutional under the Fourth Amendment as long as the officer had reasonable suspicion a crime is being committed).

United States v. Mendenhall, 446 U.S. 544 (1980) (holding officer’s initial contact with an African American woman who fit a “drug courier profile” was not an unlawful seizure under the Fourth Amendment).

Washington v. Davis, 426 U.S. 229 (1976) (establishing the “purposeful discriminatory intent” requirement under equal protection law, largely ignoring disparate racial impact).

Whren v. United States, 517 U.S. 806 (1996) (accepting police pre-textual stops as constitutional under the Fourth Amendment and pointing to the Fourteenth Amendment’s equal protection clause as recourse for racially discriminatory stops).

Lauren and Nathan discuss the racial disparities in the United States criminal justice system and the Supreme Court’s role in supporting and perpetuating this unequal system, which many have justifiably deemed as racist.

Books Referenced:

Frank R. Baumgartner, Derek A. Epp, & Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us About Policing and Race (2018).

Klarman, Michael J., From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (2005).

Michael Tonry, Punishing Race: A Continuing American Dilemma (2011).

Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (2011).

Cases Referenced:

Brown v. Board of Education, 347 U.S. 483 (1954) (overruling Plessy and ruling that separate is inherently unequal).

McCleskey v. Kemp, 481 U.S. 279 (1987) (reinforcing the purposeful discriminatory intent rule despite extremely strong evidence of disparate racial impact – virtually closing off all equal protections claims to sentencing).

Pennsylvania v. Mimms, 434 U.S. 106 (1977) (allowing police to make drivers leave their cars during routine stops for officer safety).

Plessy v. Ferguson, 163 U.S. 537 (1896) (establishing the doctrine of separate-but-equal which upheld the Jim Crow system for over fifty years).

Washington v. Davis, 426 U.S. 229 (1976) (establishing the “purposeful discriminatory intent” requirement under equal protection law, largely ignoring disparate racial impact).

Whren v. United States, 517 U.S. 806 (1996) (accepting police pre-textual stops as constitutional under the Fourth Amendment and pointing to the Fourteenth Amendment’s equal protection clause as recourse for racially discriminatory stops).

Other Sources Referenced:

Berkeley Law Death Penalty Clinic, WHITEWASHING THE JURY BOX: HOW CALIFORNIA PERPETUATES THE DISCRIMINATORY EXCLUSION OF BLACK AND LATINX JURORS (June 2020): HTTPS://WWW.LAW.BERKELEY.EDU/EXPERIENTIAL/CLINICS/DEATH-PENALTY-CLINIC/PROJECTS-AND-CASES/WHITEWASHING-THE-JURY-BOX-HOW-CALIFORNIA-PERPETUATES-THE-DISCRIMINATORY-EXCLUSION-OF-BLACK-AND-LATINX-JURORS/

Bureau of Justice Statistics: https://www.bjs.gov/

Harris, David A., Driving While Black: Racial Profiling On Our Nation's Highways, ACLU (1999): https://www.aclu.org/report/driving-while-black-racial-profiling-our-nations-highways

Jess Bravin, Breaking With Tradition, Some Judges Speak Out on Racial Injustices, WALL STREET JOURNAL, (June 13, 2020), https://www.wsj.com/articles/breaking-with-tradition-some-judges-speak-out-on-racial-injustices-11592060400

Police Shooting Database 2015-2020, THE WASHINGTON POST, https://www.washingtonpost.com/graphics/investigations/police-shootings-database/

Project Implicit, https://implicit.harvard.edu/implicit/aboutus.html

Ray Sanchez, Who was Sandra Bland, CNN (July 23, 2015), https://www.cnn.com/2015/07/22/us/sandra-bland/index.html

Representative John Lewis, Address at the 2013 American Constitution Society Convention (Nov. 21, 2013), available at: https://www.acslaw.org/video/highlights-of-rep-john-lewis-speech-to-2013-acs-national-convention/ (last visited 8/5/2020). (Source of our introduction).