Criminal Justice

by Jeremy Leaming

With an increasing number of states dispensing with or reconsidering capital punishment, the Columbia Human Rights Law Review (HRLR) has released an exhaustive issue, which should push more state lawmakers to join the discussion. The HRLR issue provides compelling and highly troubling documentation of the likely wrongful 1989 Texas execution of Carlos DeLuna.

As Andrew Cohen writes for the Atlantic the HRLR’s issue, “an astonishing blend of narrative journalism, legal research, and gumshoe detective work,” should be read, especially by Justice Antonin Scalia, who in a 2006 concurrence staunchly defended the integrity of capital punishment cases, saying they are “given especially close scrutiny at every level ….”

Since being reinstituted in the United States, Texas has executed more inmates than all other states, except for California and Florida, where the death row populations are higher. In the last five years, however, five states have chosen to abolish capital punishment, with Connecticut the most recent. Californians in November will consider a ballot measure to end the death penalty.

HRLR’s issue called Los Tocayos Carlos, provides a stunning account of a criminal justice system gone terribly awry, with prosecutors, witnesses, judges all faltering in ways that tragically bungled a capital punishment case. While these officials and actors ignored evidence to the contrary, the likely perpetrator, Carlos Hernandez, continued a life of violent crime after DeLuna was convicted and sitting on death row.

In a press release about the report, Columbia Law School Professor James Liebman, and lead author of the issue, said, “Carlos DeLuna’s execution passed with little notice. No one cared enough about the defendant or the victim [Wanda Lopez stabbed to death working at a convenience mart in Corpus Christi] to make sure they caught the right guy. Everything that could go wrong in a death penalty case did go wrong for DeLuna. Sadly, DeLuna’s story is not unique. The very same factors that sent DeLuna to his death – faulty eyewitness testimony, shoddy legal representation, prosecutorial misfeasance – continue to put innocent people at risk of execution today.”

By Ray McClain, Director of the Employment Discrimination Project at the Lawyers’ Committee for Civil Rights Under Law

In late April, the Equal Employment Opportunity Commission (EEOC), under the leadership of Chair Jackie Berrien, approved updated Enforcement Guidance on Consideration of Arrest and Conviction Records by employers. The Guidance analyzes clearly and comprehensively the restrictions that Title VII places on an employer’s use of any employment screen that has the intent or effect of excluding minority workers disproportionately from being hired or retained by the employer.  

This post addresses the broader significance of the EEOC’s updated Guidance and the additional actions that are likely to be necessary to persuade employers that the Commission’s action is not merely symbolic, but requires employers to change their practices.

Significance of the Guidance

Pundits try to persuade the White public that we live in a “post-racial America” because President Obama is of mixed descent – Black African and White American. Both the Guidance and the Commissioners in their remarks prior to the vote laid out a few of the many statistics that starkly demonstrate that America today is anything but “post-racial”; the Guidance recounted that:

African Americans and Hispanics are arrested at a rate that is 2 to 3 times their proportion of the general population.  Assuming that current incarceration rates remain unchanged, about 1 in 17 White men are expected to serve time in prison during their lifetime; by contrast, this rate climbs to 1 in 6 for Hispanic men; and to 1 in 3 for African American men.

Virtually all public employers and 80 percent of private employers check all new applicants for employment to see whether they have records of recent arrests or criminal convictions. Over 90 percent check on at least some applicants. From the EEOC’s statistics, it is clear that the practice of so many employers in excluding ex-offenders from equal consideration in hiring takes a heavy toll on minority workers, especially African Americans, and helps to keep African American unemployment at consistently twice the rate of unemployment for white workers. 

Depression-level rates of unemployment have plagued the African American community since early in the current recession. Unemployment for African American men has recently been as high as 18 percent of those seeking employment and about 25 percent when the numbers include African American men who would work if they thought they could find anyone to hire them. The rate has been 40 percent for African Americans 19 and younger.  

The EEOC’s updating of Guidance on this critical issue can be a major step in opening many doors to jobs that for too long have been closed to many minority workers.

What did the Guidance do?