John Paul Stevens receives a 2012 Medal of Freedom from President Obama. (Reuters)

From The Atlantic:

John Paul Stevens, the avuncular former justice of the U.S. Supreme Court, gave an interesting speech yesterday at the American Constitution Society Convention in Washington, D.C. Not only did he offer some provocative analysis on the history of the 14th Amendment, as timely a topic as ever with the likely demise of the Voting Rights Act on the near horizon, but he also weighed in on Maryland v. King, the Court’s recent decision to permit states to swab DNA from suspects as as a “reasonable booking procedure” under the Fourth Amendment.

The speech isn’t long and you can read it for yourself to come to your own conclusions about where Stevens comes down on the intersection of old doctrine and new technology. But there was one sentence, near the end of the presentation, that struck me. Stevens said:

It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person’s privacy than a search that allows an officer to rummage through private papers.

Now, I am ordinarily a big fan of Justice Stevens. But this strikes me as crazy talk. The DNA search takes a moment, it is true, and in that sense (and perhaps that sense alone) it is less intrusive than a search through someone’s purse or briefcase. But the results of a DNA test are then compiled and held by the government, presumably forever, while the “results” of the bag search are quickly forgotten if they reveal no evidence of criminal conduct. It’s not necessarily the fleeting act of the search itself that offends Fourth Amendment protections it is also what is then done with the results of that search.

From Atlantic Wire:

A nation continues to wait for final word on the Supreme Court’s Big Four cases this term — voting rights, affirmative action, DOMA, and Proposition 8 — but the justices’ closest decision arrived first on Monday, in a 5-4 ruling on Salinas v. Texas in which the conservative members of the Court and Anthony Kennedy determined that if you remain silent before police read your Miranda rights, that silence can and will be held against you. Here’s what that means.

Basically, if you’re ever in any trouble with police (no, we don’t condone breaking laws) and want to keep your mouth shut, you will need to announce that you’re invoking your Fifth Amendment right instead of, you know, just keeping your mouth shut. “Petitioner’s Fifth Amendment claim fails because he did not expressly invoke the privilege against self-incrimination in response to the officer’s question,” reads the opinion from Justice Samuel Alito, which Justice Kennedy and Chief Justice John Roberts backed. Justices Thomas and Scalia had a concurring opinion while the remaining four Supremes dissented.

The Salinas case revolves around Genovevo Salinas, a man who was convicted of a 1992 murder of two brothers. Salinas was brought in for police questioning in January 1993. According to the dissenting opinion of Justice Breyer, he was called in to “to take photographs and to clear him as [a]suspect” and Salinas was questioned without being read his Miranda rights:

Because he was “free to leave at that time,” [App.14], they did not give him Miranda warnings. The police then asked Salinas questions. And Salinas answered until the police asked him whether the shotgun from his home “would match the shells recovered at the scene of the murder [Id., at 17.] At that point Salinas fell silent.

That silence was then used against Salinas in court, and he was eventually convicted. But the bigger question in revisiting this 20-year-old murder case was whether or not prosecutors were allowed to point to that silence, and win a case using Salinas’ own silence against him.

Fingerprint Files (Killer Version 1974)

“Right now somebody is listening to…… you
Keeping their eyes peeled…… on you
Mmm, mmm, what a price, what a price to pay….”

† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

The War on Black – “Color-blindness” and Criminalization , Part 2
by nancy a heitzeg

Editors Note: As I write this, my Twitter feed is exploding in debate over the NSA/Prism spying program and the attendant leaks. I am seeing the Right decry the same policies they supported — hey voted for — under BushCo because.. well, the President is Black and must be ceaselessly criminalized. I am witnessing liberals defend USA PATRIOT ACT policies that they rejected under Bush because.. well, the President is Black and must be defended for what he  “represents”, at least to some. I am seeing the purity left and libertarians in outrage over governmental intrusion, because… well, White Privilege and now it matters since the target is not just people of color via COINTELPRO or NYPD Stop and Frisk.. But  never mind, let’s co-opt Rosa Parks and MLK..

This is exactly to the heart of my post: Overt racism v. Color-blind racism, an epic battle between two false choices all played out on a personalized level. No structural analysis, nor attendance to systemic racism/classism, and no ability to draw the straight line to consideration of race class gender in the law and its’ enforcement….There is another way..

Last week in Part 1, CI examined a recent report from the Malcolm X Grassroots Movement, Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes. The report illustrated, in the extreme, how the criminalizing archetype – as  attached to Black Men in particular-  becomes the excuse for, quite frankly, Genocide.

MXGM makes it plain  that ” the practice of executing Black people without pretense of a trial, jury, or judge is an integral part of the government’s current overall strategy of containing the Black community in a state of perpetual colonial subjugation and exploitation.”

It is a War Against Black People, and certainly, extra-judicial killings represent just one aspect of this criminalizing war:

These killings come on top of other forms of oppression black people face. Mass incarceration of nonwhites is one of them. While African-Americans constitute 13.1% of the nation’s population, they make up nearly 40% of the prison population. Even though African-Americans use or sell drugs about the same rate as whites, they are 2.8 to 5.5 times more likely to be arrested for drugs than whites. Black offenders also receive longer sentences compared to whites. Most offenders are in prison for nonviolent drug offenses

And how does this War persist without national outrage?  With no declared State of Emergency? With so few proposed remedies?

Short answer: White Supremacy.

The devil, of course, is always in the longer details, and so today we turn to a deeper exploration of  “color-blind” racism, the central role of criminalizing archetypes, the complicity of Left, Center and Right, and dare we hope?? – a way out of the color-blind fog..

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† Criminal InJustice is a weekly series devoted to taking action against inequities in the U.S. criminal justice system. Nancy A. Heitzeg, Professor of Sociology and Race/Ethnicity, is the Editor of CI. Kay Whitlock, co-author of Queer (In)Justice, is contributing editor of CI. Criminal Injustice is published every Wednesday at 6 pm.

The War on Black ~ “Color-blindness” and Criminalization, Part 1
by nancy a heitzeg

For Kimani Gray, Cary Ball, Jr., and too many more…

As we brace ourselves for the George Zimmerman murder trial — where the defense will continue attempts to paint teen-aged Trayvon Martin as the stereotypical danger, not the victim – we have no shortage of brutalizing images to remind of us of the toxic power of that criminalizing narrative.

As we have written here before, the Black Man as Dangerous is a lethal idea, ironically, not to those who perpetrate and fear, but to those to whom it is attached. It is also a very old idea, one that has evolved over centuries. The Savage, The Brute, the Defiler of White Women — honed and solidified in the Post Civil Rights Era into an archetype that scholars and activists now refer to in aggregate short-hand: The Criminal-Black-Man.

This image is ubiquitous — it is the text and subtext of all crime-reporting and “reality” cop/prison programing. It shapes the contours of everyday racism, the school to prison pipeline, police patrols and profiles; it offers the framework for both creating and then perversely justifying the demographics of both the prison industrial complex and the face of death row.

The Criminal-Black-Man archetype is the centerpiece of the Post-Civil Rights Era’s reliance on color-blind coding to re-constitute the Old Jim Crow into the New – with The War on Drugs, The War on Gangs, and coming soon to a city near you, The War on Guns. Race need never be explicitly named but  “high crime neighborhoods”, “gangs”, “thugs”, ghettos, “hoods and “hoodies” all evoke a racialized image. As intended. All people of color — Latino/as and Native American especially-  the poor, the queer are targets here too – but it is Blackness that provides the paradigm.

And the Criminal Black Man need not be a literal “man” — Black women are deemed threatening too (See Kiera Wilmot), as are Black children. From the Scottsboro Boys to Emmet Till to Trayvon Martin, age has offered no mitigation for the irrational fear triggered in some by the presence of Black.

Just this week, 14 year old Tremaine McMillian was violently restrained by police for “dehumanizing stares” and was charged with a felony count of resisting arrest with violence and disorderly conduct.

Driving While Black, Walking While Black, Standing While Black, Carrying Skittles While Black, Doing Science While Black, Now Looking While Black are supposed rationale for a series of disproportionate responses from law enforcement, security personnel and every day would-be vigilantes.

Often these encounters are lethal. Too often. A recent report issued by the Malcolm X Grassroots Movement, Operation Ghetto Storm: 2012 Annual Report on the extrajudicial killing of 313 Black people by police, security guards and vigilantes , notes this:

Every 28 hours in 2012 someone employed or protected by the US government killed a Black man, woman, or child.

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Supreme Court upholds DNA swabbing of people under arrest, NBC News:

The Supreme Court on Monday upheld the police practice of taking DNA samples from people who have been arrested but not convicted of a crime, ruling that it amounts to the 21st century version of fingerprinting.

The ruling was 5-4. Justice Antonin Scalia, a conservative, joined three of the court’s more liberal members — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting…

The five justices in the majority ruled that DNA sampling, after an arrest “for a serious offense” and when officers “bring the suspect to the station to be detained in custody,” does not violate the Fourth Amendment’s prohibition of unreasonable searches…

Under those specifications, the court said, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

While a cheek swab does constitute a search under the law, the court noted that it requires “but a light touch” and no surgical intrusion — a critical point, the court said, in determining whether it was reasonable.

See also DNA “Evidence”, Privacy, and Racialized Dragnets for more background.

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