Category Archives: Law

Marjorie Heins wins 2013 Hugh Hefner First Amendment Award!

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NYU Press is proud to announce that Marjorie Heins has been chosen to receive the 2013 Hugh M. Hefner First Amendment Award in book publishing. She is being honored for her book, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge, a chronicle of the history, law and personal stories behind the struggle to recognize academic freedom as “a special concern of the First Amendment.”

Christie Hefner established the Hugh M. Hefner First Amendment Awards in 1979 “to honor individuals who have made significant contributions in the vital effort to protect and enhance First Amendment rights for Americans,” in the fields of journalism, government, book publishing and education. Find the full list of this year’s winners here.

A press reception with the winners, judges and special presenters will be held on May 22, 2013 at the Playboy Mansion where winners will receive a cash award of $5,000 and a commemorative plaque. (Awesome—way to go, Marjorie!)

A Death at Crooked Creek: Free chapter and giveaway

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Attention, lovers of mystery, history, and true crime dramas! 

There’s still time to enter our Goodreads book giveaway for A Death at Crooked Creek: The Case of the Cowboy, the Cigarmaker, and the Love Letter—and we’re giving away 3 *free* copies!  Enter now for a chance to win; the giveaway ends on May 29, 2013.

Today, we have an excerpt from the first chapter of A Death at Crooked Creek: “A Winter Journey Leads to an Inquest: 1879.” 

 

Chapter 1: A Winter Journey Leads to an Inquest: 1879 by NYU Press

Why restrict jury duty to citizens?

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—Andrew Guthrie Ferguson

[This article originally appeared in The Atlantic online. Read it here.]

A few weeks ago, the California Assembly passed legislation that for the first time would make non-citizens eligible for jury service. If passed by the State Senate, California would be the only state to decouple citizenship and jury duty.

A chorus of criticism has been raised over the proposed bill without thinking about the fundamental question it presents. Why do we limit jury service to citizens?

The answer does not lie in history. At the time of the framing of the United States Constitution, jury service was limited to property-owning white men–as, for that matter, were voting rights in most states. Recent immigrants who owned property could sit on juries, but other citizens (women and others without property) could not. Thus, as originally understood, citizenship did not define who could sit on a jury.

Nor is the answer that citizens possess some special civic knowledge. There are no educational requirements for jury service. No special “citizen training” classes. Qualification for federal jury service simply requires that the potential juror “be adequately proficient in English to satisfactorily complete the juror qualification form.” In an era where studies show that most Americans fail basic civic literacy tests (including the official government citizenship test), we can honestly wonder about this collective lack of civic knowledge. Thus, assuming that many non-citizens are equally knowledgeable (or ignorant) about American civics and law, knowledge cannot be the reason for preferring citizens.

Nor, is it about community representation. Juries, of course, have always acted as a community conscience. Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury. Yet, including non-citizens on juries would not necessarily change that community dynamic. In fact, including non-citizen members of our community might provide a closer approximation of the actual community sentiment. After all, a lawful permanent resident of California (who has lived in the state for twenty years) might be much more representative of the community than a recent citizen moving from Alabama or New Hampshire.

So why has jury service been limited to citizens? Here are three good reasons.

Citizenship symbolizes and preserves self-government. In a democracy, citizens are the sovereigns and sovereigns have to govern themselves through institutions like the jury. This is a structural power – a reservation of political control to citizens. One cannot outsource the responsibility of self-government, including jury duty. Those who have been entrusted with the responsibility to govern must do the hard work of self-government.

Second, citizenship has come to define our political identity. For much of early American history, we denied full political rights to women and people of color. As a result, the battles for political equality have been framed in terms of citizenship. The Women’s Suffrage Movement explicitly linked jury service and voting in its push for political equality, knowing that just gaining the right to vote would not be enough for women to be considered full constitutional citizens. The Civil Rights Movement in the South began with a series of jury discrimination cases recognizing that jury participation symbolized a measure of constitutional equality. Those victories established that to be a full participant in the constitutional system, one had to identify as a citizen juror.

Finally, citizenship involves a legal and social relationship with the government – a granting of constitutional rights and an acceptance of civic responsibilities. American citizenship is a legal commitment to certain participatory values, including participation in juries. The badge of citizenship marks individuals as belonging to a national community that guarantees certain liberties and opportunity in exchange for democratic participation. As the Supreme Court stated in Powers v. Ohio, jury duty “affords ordinary citizens a valuable opportunity to participate in a process of government, an experience fostering, one hopes, a respect for law. Indeed, with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process.”

A shift to non-citizen jurors would alter this balance of sovereignty, identity, and the relationship between citizen and government. Of course, many non-citizens would make excellent jurors, just as many actual citizens make poor jurors, but the underlying legal relationships would be significantly affected. This change to non-citizens juries may come, as the history of the jury has always evolved with social norms, but such a change would restructure the current balance of rights and responsibilities in a way that Californians and others should weigh very carefully.

Most importantly, the debate over non-citizen jurors has resulted in new awareness that jury service matters. However the California legislature ultimately decides the issue, the controversy has highlighted a deep-felt sense that jury service goes to the heart of what it means to be an American citizen: It is not patriotism alone, but commitment to the participatory values of democracy. Next time you are asked to serve, wear your juror badge proudly.

Andrew Guthrie Ferguson is an assistant professor of law at the UDC David A. Clarke School of Law, and author of Why Jury Duty Matters: A Citizen’s Guide to Constitutional Action (NYU Press, 2013).

Misunderstanding Miranda: A Miranda warning would not endanger the Boston prosecution

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—David A. Harris

[This article originally appeared in the Pittsburgh Post Gazette. Read it here.]

Just hours after the second Boston bomber was taken alive, the government announced that it would not give the man Miranda warnings before questioning him. Instead, the Department of Justice said, the attacker would be questioned without warnings under the public safety exception.

The Obama administration’s interpretation of the public safety exception is suspect; its announcement that no Miranda rights would be given was transparently political, aimed at avoiding criticism from conservative quarters. Worst of all, the administration seemed to be telling the public that Miranda warnings are just petty rules—another instance of hyper-technical laws that get in the way of real justice. This is dead wrong, and it shows grave disrespect for the rule of law and the Constitution—the very things that make our country great.

Let’s start with a clear understanding of the Miranda warnings. Failing to give Miranda warnings does not interfere with the power of the police to make an arrest. Not giving the warnings does not affect the ability of the prosecution to try a suspect. In fact, not reading a suspect his Miranda warnings does not even violate the person’s rights.

The Supreme Court ruling in the Miranda case is actually quite specific: Warnings are required only if the police question a suspect while he is in custody and the district attorney wants to use the answers to prove guilt. That’s all.

If the Boston bombing suspect gets Miranda warnings and decides he wants to remain silent, won’t that destroy the case?

The simple answer is no—he will be prosecuted anyway and will very likely be found guilty, statements or not. Think of 1) the countless photos and videos, many of which show him with his brother and some of which reportedly show him leaving his backpack at the site of the second explosion moments before it occurred; 2) his statement of guilt made to a civilian during a carjacking, 3) the many officers who could testify they saw him at the shootout from which he escaped; and 4) any evidence police have seized from his home. In short, the evidence will be overwhelming; prosecutors won’t need a confession to convict him.

The idea that giving suspects Miranda warnings stops investigations cold and allows guilty criminals to go free is a myth, and it vastly underestimates the abilities of modern police officers to work successfully under the Miranda rules.

When police officers administer Miranda warnings, 85 percent of suspects talk to them anyway. For suspects with no criminal record, like the Boston bombing suspect, the number is 90 percent. Given what the warnings tell suspects—”anything you say will be used against you”—many people are shocked by this outcome. But it is human nature to talk, to explain, to avoid blame, and good police interrogators know how to take advantage of this. Miranda does not prevent them from getting the evidence they need.

In fact, the evidence in the Boston case is so great and the bomber’s guilt so certain that the suspect may wish to make statements—whether he gets Miranda warnings or not—for the purpose of avoiding the death penalty. The Miranda warnings won’t affect this.

What would happen if the suspect is questioned in custody without Miranda warnings and he makes statements of guilt?

The prosecution could not use those statements to prove his guilt, but it could still proceed with all the other evidence. And prosecutors could use answers given without Miranda warnings for purposes other than proving guilt. For example, they could still be used for intelligence purposes—to find other bombs or other people involved in the Boston plot or others. The statements also could still be used to prove the guilt of others involved under a conspiracy charge.

The government’s assertion of the public-safety exception to the Miranda rule bends that exception almost to the breaking point. The Supreme Court has said that Miranda doesn’t apply to police questioning that takes place in order to alleviate immediate, ongoing danger. But the authorities have already made clear that the Boston bad guys have been caught or killed and the danger is over. Perhaps the government might question the suspect about the existence of other explosives or plans, or whether he and his brother had other co-conspirators. But beyond those issues, the public-safety exception does not apply.

When our political leaders say that constitutional rights won’t be applied in pursuit of some greater good, they make our founding document sound like a collection of legal loopholes. They put us on the path that Ben Franklin warned us against when he wrote, “Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety.”

At times like this, we need to stand strong with Boston—and with our own values. Anything less dishonors who we are.

David A. Harris is Distinguished Faculty Scholar and Professor of Law at the University of Pittsburgh School of Law. He is the author of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).

Marriage equality and the law, 1967 and 2013

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—Howard Ball

In 1967, when a good cigar only cost five cents, a very different U.S. Supreme Court, led by a very different Chief Justice (Earl Warren), faced a choice between a states rights and an equal protection of the laws argument. The same choices face the Justices this term, but I am fearful that the outcome will be very different in 2013.

In 1967, the case Loving v. Virginia came to the Court because Virginia (and 15 other states) enforced its anti-miscegenation statute prohibiting marriage between Caucasians and blacks. At this time, the jurists formed an exceedingly diverse group, much more so than the sitting Court. For one thing, the majority of them had political careers prior to joining. Thus, this intimate contact with politics gave them a much greater sense of the real world than the cloistered world of arcane legalism would have.

Also of note was that the Court was mostly composed of either moderate or liberal jurists; there were no arch conservative “originalists” such as Antonin Scalia, Clarence Thomas, and Samuel Alito sitting as we see in the current Court. And the Loving decision was but one example of the Court’s rock solid commitment to civil rights and civil liberties in the mid-20th century (1953-1969).

Virginia’s lawyers argued that in a federal system, the state has the power in the 10th Amendment to establish rights and limits regarding marriage. The lower federal courts accepted this argument, yet without a dissent, Chief Justice Warren categorically rejected it. He wrote that “the 14th Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State.” The Court’s commitment to racial marriage equality in Loving came even though 72% of the American public opposed inter-racial marriage that year. (In 2011, 97% of persons under 30 years approved of inter-racial marriage. Clearly, values evolved towards equality.)

In 2013, two cases are in the Supreme Court. One, U.S. v. Windsor, the plaintiff, an octogenarian lesbian whose wife of more than four decades died and who had to pay over $300,000 to the IRS because the 1996 Defense of Marriage Act (DOMA) denied federal benefits to same-sex married couples, argued that the law was an unconstitutional violation of the right of gay and lesbian couples to marry. In the second case, Hollingsworth v. Perry, lawyers challenged the constitutionality of Proposition 8, passed in 2008 by the voters in California. It invalidated an earlier California Supreme Court decision that allowed same sex marriage. The arguments by the lawyers for the gay and lesbian petitioners are based on the concept of equality in the Constitution and are reminiscent of the Loving decision.

In contrast to the expectations of petitioners in 1967, however, the outcome in 2013 is uncertain. First of all, only one sitting Justice, Elena Kagan, has any prior experience outside of the judiciary (she was the U.S. Solicitor General in the first Obama Administration). Two had prior work on the Senate judiciary committee (Stephen Breyer) and as counsel for the ACLU (Ruth B. Ginsburg). All the other members came to the Court from lower federal appellate courts, having no real political world experiences to draw upon. Furthermore, unlike the Warren Court, there is a hard and fast ideological split on the Court: five very conservative jurists and four moderates. And there has been, for more than a decade, an “appreciation” by the conservative majority of the primacy of states’ rights vis-á-vis federal power, a general wariness about the Court moving too hastily when deciding controversial social issues, and an originalist commitment to the historic values and traditions of the American society.

There are only a few options available to the Court in deciding the same-sex cases:

  1. Dismiss the cases as improvidently granted, which would leave DOMA in place and have the 9CA overturn of Proposition 8 restored,
  2. (a) Overturn DOMA, ending a federal imposition and enabling, in the 9 states and the D.C. that allow same sex marriage, all married couples to receive federal benefits, and (b) validate California’s Proposition 8, enhancing, in both cases, the principle of states’ rights in the face of federal laws.
  3. Overturn Proposition 8 and DOMA on individual rights, privacy and “equal protection” grounds, using Loving as precedent.

I am not holding my breath that the last option will be the majority’s choice. It will be one of the first two possibilities; either one will sadden but not surprise me and most Court observers. Paradoxically, unlike public opposition to racial intermarriage in 1967 rejected by a unanimous Court, in 2013, although 58% of Americans support same-sex marriage, it may be rejected by a five person majority. Oh, for the return of a good five cent cigar and the Warren Court!

Howard Ball is Emeritus Professor of Political Science and University Scholar at the University of Vermont and Adjunct Professor of Law at Vermont Law School. He is the author of At Liberty to Die: The Battle for Death with Dignity in America (NYU Press, 2012) and The Supreme Court in the Intimate Lives of Americans (NYU Press, 2002).

UB Law’s Higginbotham takes on the lingering effects of Jim Crow

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[Note: This article originally appeared in the Daily Record here. ]

In May 2004, University of Baltimore School of Law professor F. Michael Higginbotham gave a speech to mark the 50th anniversary of Brown v. Board of Education, the Supreme Court’s historic ruling that found segregated public schools were inherently unequal.

Despite the dismantling of the Jim Crow laws, “people need to clearly understand that there are separations that still exist in society,” F. Michael Higginbotham says.

“I started to think about how far we have come and how much progress we have made, but also how much further we needed to go,” Higginbotham said.

That was the spark that led to an almost nine-year journey culminating with the publication of his new book, Ghosts of Jim Crow: Ending Racism in Post-Racial America.

At the core of the book is the existence of what Higginbotham called a “racial model” — created during slavery and nurtured by the segregationist Jim Crow laws and practices after the Civil War — that still exists in our society, with many people of both races still desiring isolation.

“What I am trying to do is get those individual people with those views to begin a conversation about how to recognize those views and how to end this racial model,” Higginbotham said.

There is also an element of racial victimization — both internally, among African-Americans, and externally, in laws and practices that discriminate against them, said Higginbotham, who served as the law school’s interim dean last year.

“It’s a failure of blacks themselves to value education and other upward-mobility vehicles and they turn to crime because of these perceived notions,” Higginbotham said.

Higginbotham has been at UB Law for about 25 years and teaches a class on race law. He grew up in Ohio and Beverly Hills, Calif., and attended Brown University for his bachelor’s degree before Yale Law School.

Some of the ideas in the book stem from his childhood in Beverly Hills. In the book’s preface, he recounts an evening riding his bike home as a 13-year-old when he was stopped by police. He was told he was out after curfew, but later discovered from friends that there was, in fact, no curfew in the neighborhood.

Higginbotham published his first and only other book in 2010. The textbook, Race Law: Cases, Commentary, and Questions explores race in the legal process from 1787 to the present.

“The difference in writing this one was I was able to put more of my own opinions into Ghosts,” Higginbotham said. “[Ghosts] was more of a reflection of what I believe from a personal standpoint, whereas a textbook must be a reflection of others.”

In the first part of the book, Higginbotham maps out these ideas, supported with historical and recent examples.

“I thought we had dealt with this,” Higginbotham said. “People need to clearly understand that there are separations that still exist in society that reflect what we think [happened] in the Jim Crow days,” Higginbotham said.

Once he decided to write the book, what followed was extensive research: reading cases, legislation and historic documents, Higginbotham said.

The writing, he said, he tried to make clear and concise, steering away from complicated legal prose. Higginbotham said he wrote mostly during winter and summer breaks and on weekends during the school year.

“I tried to break cases and legislation down so that anyone interested in race relations today and racial inadequacies, whether it’s junior high students, high school students or simply people who personally enjoy reading, that this would be something they could enjoy,” Higginbotham said.

Higginbotham went through several drafts, which he had colleagues read and edit, then sent it to publishers in early 2008 — about eight months before the presidential election. A publisher who was interested told Higginbotham the company liked the book, but told him he needed to factor in then-presidential hopeful Barack Obama.

Higginbotham spent the next several years weaving the effects of Obama’s presidency on race relations into his book, which was published by NYU Press and released on March 18.

The last part of the book focuses on Higginbotham’s ideas on how to shepherd in a new era of racial relations. Higginbotham suggests that people need to recognize there is a problem, empower the black community and equally integrate society.

“I’m not suggesting I have all the answers,” Higginbotham said. “I am saying the solutions I put forward would help eliminate the racial paradigm.”

Two covers for Two Presidents?

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NYU Press takes a different path to publishing a book on the political gridlock in Washington DC

When NYU Press decided to publish a provocative new book, Two Presidents Are Better Than One: The Case for a Bipartisan Executive Branch, by David Orentlicher, arguing in favor of two Presidents, rather than one, it had a number of major challenges, according to Steve Maikowski, Director of NYU Press. “First, we had to ensure that the final manuscript made a very convincing and well-grounded case for such a controversial idea, and the author, a Professor of Law at Indiana University, did indeed ground his argument forcefully in both law and American history. Otherwise, we feared the book would be dismissed out of hand as implausible by pundits and the review media.”

The Press saw the book, which advances this idea of a bipartisan executive branch, as a way to break the political gridlock between the Republicans and Democrats—and especially timely and worthy of serious review attention, given the endless budget impasses and the ongoing fiscal cliff negotiations in Washington.

A far-fetched argument? Not according to the author, or to the early reviewers of the book, including Sanford Levinson, an acknowledged expert on constitutional law and professor of government at the University of Texas School of Law. Levinson wrote, “Can Orentlicher be serious in calling for a plural executive? The answer is yes, and he presents thoughtful and challenging arguments responding to likely criticisms. Any readers who are other than completely complacent about the current state of American politics will have to admire Orentlicher’s distinctive audacity and to respond themselves to his well-argued points.”

The Press was further encouraged by the very favorable pre-publication buzz the book (or rather, the idea behind the book) received from the Washington Post and Boston Globe. What seemed to be an implausible argument of a plural executive branch was called by the Globe, “a fresh lens on a problem we all complain about—and may offer useful guidance for how we should go about trying to reform our government.” Orentlichter went on to appear on ‘Fox and Friends,’ where he was met with just a twinge of cynicism, but also a whole lot of encouragement.

The book also received several excellent pre-publication reviews, including the following praise from Publishers Weekly: “As unlikely as the thought may sound, Orentlicher makes a surprisingly persuasive case for this radical change. Orentlicher delivers a compelling explanation of how such a system would better align with the framers’ original conception of the executive branch… the author has an incisive eye for the problems of contemporary government.”

With the very positive buzz circulating the book, the next challenge was how best to package and market the book to draw attention to the author’s controversial proposal. The NYU Press design and marketing team met the challenge head on, and immediately found a way to encapsulate the author’s argument in an innovative and exciting design.

In a launch meeting for the book, the discussion turned to how best to evoke visually such a two-headed being. Adam Bohannon, a designer at the Press, and Mary Beth Jarrad, marketing and sales director, decided to publish the book with two different covers—one to appeal to Democrats, and another to appeal to fans of the GOP. The Press then commissioned an illustration that would show the pairing of the Democratic donkey and Republican elephant. The result: two covers that look very much the same, but each features one of the iconic partisan images, the donkey or the elephant.

The book was released to the trade in February, with an equal number of copies of each edition in each carton shipped to wholesalers and retailers. The Press decided it would be too burdensome to track sale of each book, which would have required separate ISBNs and increased management of two titles rather than one. “We’ll probably never know which of the two editions sells the best, and as long as we sell them all, we probably will not care to know,” said Jarrad. “The next big question is, when we publish the paperback in 2014, which of the two covers should we use then.”

Wrapping up Women’s History Month with Jill Norgren

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Over the last few weeks, we’ve invited a variety of authors and thinkers to share their thoughts on Women’s History Month here on our blog—and the pieces have been spectacular!

With the last days of March in sight, we thought we’d end the month not with a final word, but with a reflection on the progress that women have made over the past two centuries, and an invitation to open up the conversation further. For Women’s History Month is not meant to contain the achievements of women within 31 days, but rather, to provide a platform through which these stories can be revived.

On that note, then, we turn to Jill Norgren, who spoke with us about her book, Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers (NYU Press, 2013). In the video below, Norgren meditates on the shifting landscape of the field of law, which has increasingly allowed space for women—and points to the “bold, feisty” ladies who have served as the rebellious pioneers in the legal arena.

Check it out, and don’t forget to follow our channel!

Crime and (coerced) punishment in domestic violence cases

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—Leigh Goodmark

Worried that your complaining witness won’t follow through with her domestic violence complaint? New York police have a new weapon to use in such situations: running criminal checks on women who allege abuse in order to have “leverage” if they decide not to press charges.

On March 5, NYPD Chief of Detectives Phil Pulaski ordered officers to perform criminal background checks on complaining witnesses as well as alleged perpetrators in domestic violence cases. A police source told the New York Post that reminding women of their open warrants “force[s] them to remain cooperative.” Don’t want to prosecute your partner? You can go to jail instead. Advocates for women subjected to abuse are predictably outraged by the policy, arguing that it will prevent women from seeking assistance from the police. I’m outraged, too, but not surprised—this kind of policy is just another manifestation of the legal system prioritizing its needs and goals over those of women subjected to abuse.

For years, advocates for women subjected to abuse have sought to increase police involvement in domestic violence cases.  Reacting to police directives to essentially ignore domestic violence, advocates fought for mandatory arrest policies, which required police to make arrests in domestic violence cases whenever they had probable cause to do so.

New York City’s new background check policy is the logical outgrowth of such measures. If police are required to intervene, they want those interventions to be “meaningful” in the way that meaning is measured in police practice—that is, through arrest and prosecution.  When women subjected to abuse decline to press charges, they keep police from fulfilling the function that they’ve been asked to play for the last thirty years.

It’s not surprising that police would look for ways to ensure that their efforts come to fruition in some way. And in a system that routinely marginalizes women subjected to abuse by refusing to allow them to decide whether (and how) they want the state to intervene in their lives, it’s not surprising that a policy such as this one emerges.

Leigh Goodmark is Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (NYU Press, 2011).

Supreme Court must protect minority rights

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—F. Michael Higginbotham

Recently, the Supreme Court heard oral arguments in Shelby County v. Holder, examining the constitutionality of Section 5 “pre-clearance” provisions of the Voting Rights Act. Section 5 mandates that states or portions thereof with a history of discriminatory voting laws get prior approval by the Department of Justice for any changes to their election laws. In 2009, the Supreme Court upheld Section 5, but Chief Justice Roberts indicated that the section creates “serious constitutional questions” and should be “justified by current needs.”

For 47 years, the Voting Rights Act has prohibited certain racially discriminatory election practices and given the federal government supervisory powers over jurisdictions that used such practices. This supervisory role has proven crucial to ensuring protections for racial minorities previously excluded from their constitutionally guaranteed right to vote.

In signing the bill, President Lyndon Johnson termed it “a monumental law in the history of American freedom.” He was right. Shortly after the law was enacted, 800,000 blacks registered to vote in covered jurisdictions. Few minorities were registered prior to its passage. Today, there are over 10,000 elected black officials; in 1965, there were approximately 300.

Because of this progress, some question whether Section 5 is still needed. Recent voting irregularities in the covered jurisdictions, where allegations of minority voter suppression have been lodged due to faulty election machines, purges in voter rolls, burdensome voter identification requirements, and winner-take-all at-large districting mandates, suggest that it is.

It is in this last category where Section 5 has been most effective preventing changes in election practices that would undermine the voting power of racial minorities.  The Shelby County case provides insight. Prior to local elections in 2008, the City of Calera, located in Shelby County, redrew its jurisdictional boundaries. The redrawn boundary eliminated the City Council’s only majority-black district by adding several white subdivisions adjacent to Calera while refusing to incorporate a black area located nearby. The lone majority-black district was reduced from 70 to 30 percent black, resulting in the election loss of Ernest Montgomery, the only black city councilperson.  The Justice Department would not approve the redistricting plan and, after extensive negotiations, Calera adopted a more inclusive at-large election system. A system that prevented a white numerical majority from controlling 100 percent of the six positions on the city council and that resulted in Montgomery receiving the most votes of all council candidates.

While much progress has been made over the last few decades including black registration rates equivalent to whites, racially polarized voting patterns coupled with vote prevention and dilution practices suggest a continued need for vigilance.  In  2001, the white mayor and all white city council in Kilmichael, Mississippi cancelled elections shortly after blacks became a majority of registered voters. Last year in Texas, two federal courts identified multiple examples of more sophisticated, yet equally outrageous, discriminatory redistricting practices including removing economic centers from majority-minority districts and placing them in white districts without any financial reasons for doing so, and removing minorities from such districts who have voted in prior elections  and replacing them with minorities who have not recently voted in order to maintain the appearance of a majority-minority district without the likelihood of minorities casting the most ballots. In each situation, Section 5 was used to prohibit the discriminatory practice. With so many clearly identified problems, it is hard to believe that five justices of the Supreme Court would decide that anti-discrimination protections in Section 5 are no longer “justified by current needs”.

F. Michael Higginbotham is the Wilson H. Elkins Professor of Law at the University of Baltimore School of Law. He is the author of Race Law: Cases, Commentary, and Questions and Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, 2013).

Read: Introduction to Ghosts of Jim Crow

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February is drawing to a close, and we’d like to kick off the last few days of Black History Month by featuring the introduction to F. Michael Higginbotham’s forthcoming book, Ghosts of Jim Crow: Ending Racism in Post-Racial America (NYU Press, March 2013).

In Ghosts of Jim Crow, Higginbotham persuasively challenges the notion that we’re living in a post-racial America—and offers prescriptions to heal our country’s racial inequality. But don’t just take it from us. According to Publishers Weekly, Higginbotham “contributes an indispensable perspective on an enduring ‘racial paradigm’ in contemporary American society, while insisting, with concrete proposals, that true racial equality remains within reach.” Start reading below.

Introduction to Ghosts of Jim Crow by F. Michael Higginbotham

Another “troubled marriage”: Domestic violence and the failures of legal response

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—Leigh Goodmark

Melissa Davis could have prevented her husband, Daren Ruffin, from stabbing her to death last week. At least that’s the story the Baltimore Sun would have you believe. On January 24, the Baltimore Sun reported, Davis refused to testify against her husband during his January 8 trial for assaulting her, and now she’s dead. It’s that simple.

Except that it’s not that simple at all. Daren Ruffin had been repeatedly arrested and charged with abusing his wife, but those arrests had not deterred him from continuing his violence. Ruffin had just been arrested and released on his own recognizance when he returned to the apartment that the couple shared and killed his wife. A conviction might not have stopped him either; in fact, it’s possible that a conviction would have made him increase his violence against Davis. To suggest, however, that Davis could somehow have prevented her own death by simply testifying against her husband both ignores the ineffectiveness of the legal response to domestic violence and inappropriately places the blame for her death on Melissa Davis’ shoulders.

Ruffin’s actions reflect what some advocates for women subjected to abuse have known for some time—that while the legal system can help some women, the intervention of the criminal justice system means little to an abuser determined to hurt or kill his partner. Despite the infusion of hundreds of millions of dollars into the criminal justice system since the passage of the Violence Against Women Act in 1994, rates of domestic violence decreased only as much as the overall crime rate between 1994 and 2000, and less than the decrease in the overall crime rate from 2001 to 2010. Strict arrest and prosecution policies have increased the number of people arrested for domestic violence in some jurisdictions, but have not increased the conviction rate or the length of sentences served for domestic violence crimes.

There are numerous stories about the women who do everything “right”: who get protective orders, who call police, who participate in prosecution, and who still end up dead. Alison Kirby was one of those women. In March 2006, Kirby was granted a protective order after her boyfriend, Christopher McCann threatened her with violence.  On May 1, 2006, McCann followed Kirby to a Wal-Mart and stabbed her twelve times in the head, face, and arms.

Lilia Blandin was another. On October 30, 2011, Lilia Blandin pressed charges against her husband, Avery, after he punched her in the mouth and stomach. In December 2011, Avery Blandin stabbed his wife to death. Even incarceration isn’t an absolute guarantee of safety. In October 2008, Robert Ridley left the halfway house to which he had been sent to await his sentencing for setting fire to the couch in the apartment of his girlfriend, Tiffany Gates, went to Gates’ apartment, and stabbed her to death while US Marshals were waiting outside for backup before going in to help.

The legal system simply cannot guarantee safety for every woman subjected to abuse, and it does a disservice to all women subjected to abuse when we pretend that if she had just cooperated with police or prosecutors, gotten a protective order, or otherwise invoked the law, she would have been just fine.

If Melissa Davis had testified in the trial against her husband, there is no guarantee that he would have been convicted; if convicted, he would likely have been sentenced to probation. If he had received jail time, it would have been minimal at best. He might have been sentenced to batterer intervention counseling, the results of which, despite the efforts of highly trained and dedicated counselors, have been decidedly mixed, according to a roundtable convened by the Family Violence Prevention Fund and the National Institute of Justice. For some women, batterer intervention programs only exacerbate an already bad situation, making their partners angrier and more vindictive.

The reality is that cooperating with police and prosecutors is not a guarantee of safety for women subjected to abuse. To suggest that the legal system would have saved Melissa Davis if only she had cooperated with prosecutors is unfair and wrong. We don’t have foolproof responses to domestic violence, and we have been shortsighted in assuming that the legal system will safeguard women subjected to abuse. We need to both improve the legal response and to look beyond it to find ways to help women subjected to abuse achieve safety. Until we have engaged in these efforts, women like Melissa Davis will continue to be killed through no fault of their own.

Leigh Goodmark is Associate Professor of Law, Director of Clinical Education, and Co-Director of the Center on Applied Feminism at the University of Baltimore School of Law. She is the author of A Troubled Marriage: Domestic Violence and the Legal System (NYU Press, 2011).