Hearing of the House Committee on the Judiciary- Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public School
Interview
Hearing of the House Committee on the Judiciary- Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public School
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REP. SCOTT: Thank you. Thank you, Mr. Chairman, and thank you for holding today's important hearing. I'm sure we're all familiar with the alleged facts, as black students at Jena High School were asked to sit -- asked to sit under a tree that was understood by everyone, including school administrators, to be for white students only. Three white students hung nooses from the tree and were ultimately punished with a brief suspension. Fights subsequently occurred between blacks and whites, but only black students have been charged with serious crimes.
The facts in these cases will ultimately be determined in court, but many of the allegations have not been credibly contradicted. If they are true, I'd like the Department of Justice to comment on the availability of Sections 1983 and 1985 as possible remedies for the injustices.
Unfortunately, whatever the facts of this case may be, we do know that this cycle -- the incarceration of African American males, is something that we see over and over again in this country. As unfortunate as the Jena Six cases may be, this is just an example of the misfortune that African American males are experiencing in the criminal justice system. Marcus Dixon in Georgia, an 18-year-old African American male had consensual sex with a 15-year-old, was convicted of statutory rape and aggravated child molestation, served 14 months of a 10-year sentence before the Georgia Supreme Court threw out his conviction. Genarlow Wilson, 17-year-old African American male convicted and sentenced to 10 years for having consensual sex with a 15-year-old. Wilson is now 21, still in prison and waiting for the Georgia Supreme Court to make a decision in his case.
Cases such as these are unfortunate, but I personally do not know of any case in which a non-minority child was sentenced to a long prison term for engaging in consensual sex with a peer. African American families live in -- live with grim realities facing their children. At the present rates, one-third of African American males born today will end up in prison. African American males are incarcerated at nearly six times the rate of whites, and there are racial disparities at every stage of the criminal justice system, especially the juvenile justice system, creating what the Children's Defense Fund calls "the cradle to prison pipeline for African American males."
We have to ask the Department of Justice what can be done, from a federal perspective, to address local practices which perpetuate the "cradle to prison pipeline" and ask why programs which have been proven to reduce crime and are cost-effective are not put into practice.
We need to be assured that the Department of Justice is working to close the disparities between African Americans and whites in our criminal justice system. And we also need comments from the department on several pending anti-gang bills, and the effect these bills may have on the racial disparity. It is important for the department to prove to future generations that the term "justice for all" is not simple rhetoric.
I'd like to thank our witnesses for being with us today and look forward to their testimony. Thank you, Mr. Chairman, I yield back.
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REP. BOBBY SCOTT (D-VA): Thank you, Mr. Chairman. I thank all of the witnesses for their testimony.
I just had a fairly specific question, and that is, if you can show that the charging decisions were done in a racially discriminatory way, would Sections 1983 and 1985 be available as a remedy?
And I ask Mr. Ogletree and the Department of Justice.
MR. OGLETREE: In my view, the answer is yes. It would take a lot of effort to get that done, but that's part of the basis of all this testimony that there are federal statutes that have not been used, and can be used, to look at specific civil rights violations -- that could have been and should have been considered, and still can be considered, would occur.
REP. SCOTT: And what -- how would 1983 and 1985 be used?
MR. OGLETREE: Well, there's a separate civil rights issue here in terms of how these individuals lost their basic rights as citizens. And I think that if you look at the statute and look at the conduct here, it will require the Department to take a look at what occurred, and do the thorough investigation -- which I'm not sure they've done '83 or '85 -- and then see what sort of remedies would be available for those who have been inappropriately punished or those who have not been punished.
REP. SCOTT: We know that -- this is a hypothetical question because I know the case is being tried in court, but if it could be shown that the decision -- charging decisions were made in a racially discriminatory way -- I'd ask the -- (inaudible) -- of the Justice Department to comment on Sections 1983 and 1985.
MS. KRIGSTEN: I hesitate to speculate at this point whether someone can be charged, either civilly or an entity can be charged criminally, under the federal code in this specific incident.
What I can say --
REP. SCOTT: But if -- if it could be shown -- now, that has to be shown in court whether or not it's true.
MS. KRIGSTEN: Yes. One of the concerns in my providing an answer directly on this issue is that any decision about whether the statutes can be use will depend on the individuals who are found to have participated in these decisions. And there's an entire juvenile and adult criminal justice system that people have indicated may be troubling in Jena, and because I don't want to be in a position where I'm specifying precisely who may be responsible for --
REP. SCOTT: Well, I'm not asking for that. I'm asking whether or not if you can show that a prosecutor has charged people in a racially discriminatory way, whether or not 1983 or 1985 would be available as remedies.
MS. KRIGSTEN: I think that there are civil remedies available for situations --
REP. SCOTT: And what would have to be shown?
MR. WASHINGTON: Let me just take a quick stab at it. First of all, I'm no expert here, but I'll tell you what we've discussed so far. Yes, the answer to your question is yes. If we can prove that charging decisions were made in a racially discriminatory manner, then that leads to the strong possibility that we can move forward either under the statutes you cited or some other statutes in the United States Code.
You asked a second question, what would we have to -- what evidence -- I presume; I think that's your question -- what evidence do we have to come up with? The law seems to indicate to us that we would have to prove that the actor, whoever that would be -- and I assume you're talking about a district attorney -- set about to charge one group of persons in a different way than another group of persons. So, for example, if the district attorney said, "I'm going to charge African-Americans more rigorously than white Americans," then, yes, that would be a violation of law.
REP. SCOTT: And what would be the sanction?
MR. WASHINGTON: Again, I'm not the expert here for that. In some cases there could be potentially a criminal sanction. In other cases it would be probably some order to supervise or remove the district attorney. I'm just not sure about how we would go about doing that.
REP. SCOTT: My colleague from New York asked about the education system. If you can show that people were denied equal opportunity to education because of the hostile environment, what sanctions would be available to the Department of Justice?
MS. KRIGSTEN: At this time, the review of the educational system in La Salle Parish is being conducted under review of the federal desegregation order. And so there will be specific relief available, depending on what the outcome of that investigation shows.
The attorneys who are working on this case will have the range of options, from going into court for specific relief on a particular issue, all the way through perhaps a contempt of court motion.
MR. OGLETREE: Mr. Scott, if I can just give one quick response to that as well. Mr. Scott, representing Michael Bell, reminded me that, in fact, the Third Circuit Court of Appeals concluded that this prosecutor violated the law in charging Michael Bell as an adult in the first instance, number one.
But even more importantly, it would be interesting to see whether this prosecutor -- and the record seems to suggest no -- has ever, ever prosecuted any white person with an attempted murder case for what was, in effect, a fight on a school yard premise.
REP. SCOTT: And what would be --
MR. OGLETREE: And so the foundation is there to look at this. The United States versus Armstrong case that the Supreme Court decided a decade ago talked about 1983 -- (inaudible) -- what's the threshold here.
It seems to me this record leads, as I said earlier, to at least a foundation to make that claim.
REP. SCOTT: And what would be the remedies under 1983 or 1985?
MR. OGLETREE: Well, I think the remedy is beyond 1983 and '85 in terms of violation of civil rights. One of the things that we haven't even discussed today is that in virtually every state in this country, any person, not just lawyers or judges, can file a complaint that could lead to disbarment and other penalties. Michael Nifong in North Carolina, as you know, was disbarred and punished for his involvement in the Duke lacrosse case. And that happened before anybody was taken to trial or convicted.
So the idea of waiting until after it's over is one strategy, but the reality is that there are things that can and should be done for judicial misconduct. The 3rd Court of Appeals has all -- ruled about the judge's error, et cetera.
So this is a record that is replete with judgments already made showing disparities based on race, and people should not have been charged, which is only one side of it. But also we do know the other side, that people have been charged and not charged for similar conduct, and race is a factor. So there is an accumulation of material here that would at least say that civil and certainly at least a consideration of some criminal prospects are appropriate as well.
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