SCOTUS In the Shadows and Minority American Justice

SCOTUS Is Making New Law in the Shadows

April 15th, New York Times “Friday night’s injunction was at the 20th time since the court’s term began last October the justices have issued a shadow docket ruling altering the status quo.

Which brings to question, the more substantive the work the justices carry out through such unusual, unsigned, and unexplained orders; the more a “shadow docket” raises concerns about the court’s decision making transparency.

It leaves to questioning the underlying legitimacy of the high court decisions.

Recent years have seen a significant uptick in the volume of “shadow docket” rulings that are resolving matters beyond a singular issue and the issuing of orders changing the effect of lower-court rulings while they are appealed.

The most recent the Robert’s Court has taken up is California’s Covid-based restrictions on in-home gatherings to members of no more than three different households. The plaintiffs, who regularly hold Bible studies and prayer meetings in their homes, challenged the restrictions on the ground that they interfered with their right to the free exercise of religion as guaranteed by the First Amendment.

The Robert’s Court in what one scholar called the SCOTUS “most important free exercise decision since 1990,” the justices used the shadow docket to expand religious liberty.

The Trump administration sought emergency relief pending appeal 41 times in four years. Contrast this to the Bush and Obama administrations seeking such relief eight times in 16 years. The justices largely acquiesced to the Trump applications, granting 28 in full or in part.

African Americans, the Poor in Court and Sentencing Reform

I was told if I saw a prisoner, a parolee, or an Ex with a tattoo of the number “13-1/2” on their arm, it meant 1 judge, 12 jurors, and 1/2 of a chance. 1/2 of a chance to win in court as the cards were stacked against those who could not afford adequate representation or were African American. For sure if you went to trial, the resulting sentencing would be harsher as you made them work rather than accept the offered plea bargain.

Part of the sentencing reform as proposed by Congress, backed by the Koch Bros, and supported by CAP as well as other progressive orgs. is meant to prevent the Koch Bros. associates and white collar business types from going to prison when they break the law. As to be expected, the Koch Bros. could care less about minorities and the people lacking economic means to fight back in court to prevent going to prison. Mind you now, those minorities and people of little means would still benefit from an early release; however, the effort by the Koch Bros., CAP, etc. does nothing to prevent them from going to prison in the first place.

I had previously warned on another site, the effort to revise sentencing guidelines is flawed as it failed to address the upfront justice system as I explain here:

The issue was always in the courts and how defendants are represented and what avenues they had available to them once and if they were convicted and sentenced. The resources are not there, they are over burdened, and they are understaffed. Defendants do not raise much of a fight in the courtroom as they lack the resource to do so. Today, plea bargaining rules the courtroom and 85%+ of all cases before a judge are plea bargained away with many defendants even signing away their rights to appeal for a period of time. It is a matter of expediency as counties and states do not want to fund the courts and defendants can be moved through the system speedily to the prisons. Besides prisons being in unlikely places away from the crowds, they are an economic incentive as they employ people and raise tax revenue in areas not populated by business.

What is happening in states and in Congress is akin to giving a person with pneumonia an aspirin and telling them they are cured. For all that is said, talked and written about for criminal justice reform, it is a just bromide to the true issues. Besides have any of you looked at the tenets of parole?

Tethering in one state costs $13 per day for the parolee just released from prison and to which there is no escape. At the end of a 2 year parole, the parolee owes a state ~$9,490 if they do not pay it as they go along (mind you they may not have a job in this economic environment). If you do not complete paying for it, you are kept on parole until it is paid. If you refuse to pay it, you go back to prison. States use these funds to finance other state costs besides just keeping tabs on the parolee.

In most states, the Parole Officer judgment is the same as a court’s decision. A prison psychiatrist can decide a parolee needs no additional counseling only to be overruled by the Parole Officer. The length of the counseling is set by them also as they all have their medical degrees(?). The parolee pays for this also. If the parolee fails the course, the course can be extended or they can go back to prison. So much for the issue of recidivism.

Black American Criminal Justice Fact Sheet

The origins of our modern-day police mentality can be traced back to the ‘Slave Patrol’. The earliest formal slave patrol was created in the Carolinas in the early 1700s, with the following mission:

to establish a system of terror in response to slave uprisings with the capacity to pursue, apprehend, and return runaway slaves to their owners, including the use of excessive force to control and produce desired slave behavior. 

Slave Patrols allowed forcible entry into any home solely based on suspicions of protecting runaway slaves.  Slave Patrols continued until the end of the Civil War and the passage of the 13th Amendment.

During the Reconstruction, slave patrols were replaced by militia-style groups who were empowered to control and deny access to equal rights to freed slaves that looked to join the workforce and integrate with society.  This included the enforcement of Black Codes, strict local and state laws regulating and restricting access to labor, wages, voting rights, and general freedoms for formerly enslaved people.

Just Some Detail:

  • A Black person is five times more likely to be stopped without just cause than a white person.
  • A Black man is twice as likely to be stopped without just cause than a Black woman.
  • 65% of Black adults have felt being targeted because of their race. Similarly, approximately 35% of Latino and Asian adults have felt targeted because of race.
  • 1,025 people have been shot and killed by police in the past year.
  • There are somewhere between 900 and 1,100 people who are shot and killed by police in the United States each year.
  • Since 2005, 98 non-federal law enforcement officers have been arrested in connection with fatal, on-duty shootings. To date, only 35 of these officers have been convicted of a crime, often a lesser offense such as manslaughter or negligent homicide, rather than murder. Only three officers have been convicted of murder during this period and seen their convictions stand. Another 22 officers were acquitted in a jury trial and nine were acquitted during a bench trial decided by a judge. 10 other cases were dismissed by a judge or a prosecutor, and in one instance no true bill was returned from a grand jury. Currently, there are 21 non-federal law enforcement officers with pending criminal cases for fatal shootings.
  • 84% of Black adults say white people are treated better than black people by police; 63% of white adults agree based on 2019 research on police relations.
  • 87% of Black adults say the U.S. criminal justice system is more unjust towards Black people; 61% of white adults agree.
  • Despite the fact that more white people have been killed by police, Black and Hispanic people are disproportionately impacted.  While white people make up a little over 60% of the population, they only make up about 41% of fatal police shootings.  Black people make up 13.4% of the population, but make up 22% of fatal police shootings.  

Black American Plea Bargaining Risk

Disparity in Sentencing:

  • Black defendants were 19 percent more likely than whites to be offered plea deals that included jail or prison time.
  • Blacks and Latinos charged with misdemeanor person offenses or drug offenses were likely to be held in jail or prison at their arraignment.
  • Blacks and Latinos were both more likely to be offered plea deals that included time behind bars for misdemeanor drug offenses. Misdemeanor marijuana cases, Black Americans were 19 percent more likely to be offered a plea deal that required time behind bars.
  • For nonmarijuana felony drug offenses, Latinos were 14 percent more likely than whites to receive plea offers including jail or prison time.
  • When it came to incarceration, blacks were 15 percent more likely to be imprisoned for misdemeanor person and drug offenses, and 14 percent more likely to be imprisoned for felony drug offenses.

Some of this is from old posts of mine and much is referencing news commentary. The next few days are going to be tough in the US. The smug Chauvin really believes he is getting off from murdering Floyd. If he goes to prison , there will be a whole new reality for him to experience.