Police: Modern Day Slave Catchers and the Private Prison Industry

Modern day police in the United States evolved primarily, from slave patrols in the South and city guards in the North; both were concerned with the control and containment of Black people.  The comparison of police officers to slave catchers goes against the grain of what most people reflexively think about police.  Thus, it can be difficult for some to critically analyze them and their function.  The common cultural image of police is that they are our benefactors  doing the dangerous job of protecting us.    This, among other notions, is not as true as one might think.  For example, according to the 2010 national census of fatal occupational injuries, garbage collectors have a more dangerous job than police officers.  Inversely, Garbage men pose no threat to the rest of us.  To the contrary, they provide an essential public service.  Police officers on the other hand, kill almost 5 five times as often as they are killed [see here].

The fact of the matter is, any benefit that society, particularly poor communities and Black or Immigrant communities, derives from police officers is in spite of their unofficial mandate as modern day slave catchers.  Their job is to preserve society through the method of law enforcement.  Law ENFORCEMENT.  Nevermind if the law is fair, just, moral, or equitable — its the law!  For example, if you’re poor in this country, you don’t have a legal right to a job, a home, or food, or money, but you can be arrested for taking it (theft) or even asking for it (pan-handling/solicitation).  Kristian Williams, in his magnificent book Our Enemies in Blue: Police and Power in America writes,

“To the degree that a social order works to the advantage of some and the disadvantage of others, its preservation will largely consist of protecting the interests of of the first group from the demands of the second.  And that, as we shall see, is what the police do…… The history of America’s police is not the story of democracy so much as it is the story of the prevention of democracy.”  He also quotes James Baldwin from his essay Fifth Avenue, Uptown: A Letter From Harlem; “Their very presence is an insult, and it would be, even if they spent their entire day feeding gumdrops to children.  They represent the force of the White world and that world’s real intentions are, simply, for that world’s criminal profit and ease, to keep the Black man corralled up here, in his place.”

The “place” of Black people in this country may change from era to era, but essentially, their place is to serve the interest of the “first group” that Williams referred to.  That may mean total assimilation in which case a loyal Black person can be a great asset to the country (even be president) or, in the alternative, even a hapless illiterate Black body will not go to waste, it will go to prison, where it can be useful.  The premise of the argument contained in this writing is that there is a direct correlation between the resource of Black bodies on the plantation 150 years ago and in the prisons today.  The 13th Amendment to the United States Constitution provides the bridge for this connection.  It states that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

If read critically, it is apparent that slavery in America was never abolished.  To the contrary, it was nationalized and regulated.  Today, slavery may not be an institution that any entrepreneur can  take advantage of , but it is still present and prevalent as a government run operation.  Enslavement is no longer a strict question of racial status, but civic status; who is the criminal.  Those designated as criminals are subject to slavery and, quite perversely, the body with the authority to designate who is or isn’t a criminal is the same body that stands to benefit from the enslavement of the “duly convicted”.  On the basis of this analogy, police is to slave catcher as criminal is to slave.  Police are deployed into the community to catch ‘the bad guy’; upon capture, the bad guy, if “duly convicted”, will be subject to slavery.  The quintessential element of slavery is the ownership of labor and in prisons, just as on plantations, the labor of the captive is appropriated.

Although the institution has been nationalized, in recent decades, the prevalence of prison privatization has steadily increased.  This has created an industry with extremely perverse incentives.  Whereas slavery and profitability take a back seat to social control and punishment within government administered prisons, they enjoy primacy within private prisons.  In other words, private prisons are primarily concerned with the profits of their stockholders and increasing their bottom line year after year.  This can only be done by obtaining a growing stream of human capital and reducing the ratio of profit to expenditure as much as possible.  This fact is not lost on these companies.

In its 2010 Annual Report, the Correctional Corporation of America (CCA) is very explicit about where its interests lie.

The demand for our facilities and services could be adversely affected by the relaxation of enforcement efforts, leniency in conviction or parole standards and sentencing practices or through the decriminalization of certain activities that are currently proscribed by our criminal laws. For instance, any changes with respect to drugs and controlled substances or illegal immigration could affect the number of persons arrested, convicted, and sentenced, thereby potentially reducing demand for correctional facilities to house them.

A recent report by the Sentencing ProjectToo Good to be True: Private Prisons in America, outlines the proliferation of private prisons over the past decade.  According to the report, in 2010, the total number of prisoners in private prisons was 1.6 million, up 17% since 1999.  Much more staggering is the increased use of private prisons by the federal government, up 784% over the same period.  The use of private prisons is not entirely new, but the practice took modern form and ballooned in the 1980s commensurate with the incarceration boom that resulted from the ‘War on Drugs’.  In the 30 years between 1979 and 2009, the prison population grew from 450,000 to 2.3 million.  Today, the United States imprisons more people than any other country in the history of the world.

Last year, Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness, noted that there are more Black men are in jail today than there were enslaved in 1850.  There are almost 10 times as many Black people in prison now as there were in 1954 at the time of Brown v. Board of Education.  At this rate, 1 and 3 Black males born today can expect to go to jail in their lifetime [see here]. These Black men (and women), just like their enslaved ancestors, are human resources, feeding a malicious cycle where the incarceration industry is reaping big profits.

Two companies in particular run over half of the private prisons; CCA and GEO Group (previously known as the Wackenhut Corporation).  In 2010, they made almost $3 billion and have established themselves as prime stock.  The price of stock in either company comparable in price to companies such as Citigroup, Dell, Yahoo, Intel, and Dunkin’ Donuts/Baskin Robbins.  Notable over the past six months are the efforts of the National Prison Divestment Campaign.  As pointed out on their blog, “Since the divestment campaign began on May 12, 2011. CCA’s stock value dropped from $26.02 to $20.67, a 21% drop at year’s end.  GEO Group stock has taken a similar plunge, from a high of $26.12 on May 12 to $16.75 on December 31, 2011, a drop of over 34%.”  God-willing, this trend will continue.  The article goes on to say that, “These for-profit prisons have a long history of lobbying for laws that increase penalties and incarcerations for immigrants and people of color, supporting controversial bills like the 3 strikes laws and minimum mandatory sentencing that has created massive profits for these corporations and their investors.”

Rania Khalek, an editor for Alternet, pointed out in a December 2011 blog post that,

Just a decade ago, private prisons were a dying industry awash in corruption and mired in lawsuits, particularly Corrections Corporation of America (CCA), the nation’s largest private prison operator.  Today, these companies are booming once again, yet the lawsuits and scandals continue to pile up.  Meanwhile, more and more evidence shows that compared to publicly run prisons, private jails are filthier, more violent, less accountable, and contrary to what privatization advocates peddle as truth, do not save money.  In fact, more recent findings suggest that private prisons could be more costly.

In a recently published report, “Banking on Bondage: Mass Incarceration and Private Prisons,” the American Civil Liberties Union examines the history of prison privatization and finds that private prison companies owe their continued and prosperous existence to skyrocketing immigration detention post September 11 as well as the firm hold they have gained over elected and appointed officials.

This all leads back to the point of the de facto function that police play in society which is actually nothing new.  After the 13 Amendment was ratified, States began to develop new laws, later known as Black Codes, to utilize the exception clause contained in the Amendment.  For example, Black men and women who were now “free”, were targeted and arrested for such benign offences as ‘vagrancy’; in other words, wandering around without a job.  And what were the jobs available to Blacks in an emancipated world? Plantation labor, housework, etc.; basically all of the same things they were doing the day before.  The prison population exploded during this period and the practice of ‘convict leasing’ became ubiquitous.

Today, there are no ‘Black Codes’ or laws that explicitly target populations of people of color.  However, though the explicit intent may be one thing, the effect may be decidedly different; and the effect, the objective reality, is what matters.  According to the International Covenant to Eliminate All Forms of Racial Discrimination (CERD), Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect [emphasis added] of creating or perpetuating racial discrimination wherever it exists.

Moreover, ‘criminal’ is often a euphemism for ‘Black’.  Similarly, the ‘War on Drugs’ is a war on the Black community, just as the immigration laws are an attack on the Immigrant community.  Sadly, the victims of these wars are not only prisoners of war, but spoils of war.  At the forefront of these wars are the local police and though they may not fancy themselves as slave catchers, the reality is a tragedy that belies the motto, “serve and protect”.  To be fair, some police have taken notice of the disconnect between what they signed up for and what their actually doing.  One notable group is Law Enforcement Against Prohibition (LEAP).  Unfortunately, officers with that kind of integrity are discouraged, to say the least, from saying or doing anything about the injustice that they witness.  In some cases, they have even been fired for such treason.

Last year, The Global Commission on Drug Policy (report here) declared the War on Drugs a failure worldwide.  In no place is that more evident than in the Unites States.  At some point this year, the US may hit the $5 trillion mark for the amount of money spent on the drug war and all there is to show for it is a booming incarceration industry and the largest drug market in the world.  Meanwhile countless communities and lives have been ruined by this “war” that is little more than a racketeering scam.  If police really want to protect the communities that they serve, they would stop stealing people as part of an obviously, if not deliberately, unjust and racist agenda.  Unfortunately, as long as the 13th Amendment mandates that they serve this function, it stands to reason that their hands are tied and ours are shackled.

###

When Innocence Isn’t Enough: The Troy Anthony Davis Story

https://archive.org/details/InnocenceIgnoredADocumentaryAboutTroyAnthonyDavis

SUMMARY:

Produced on 11-8-2007 and narrated by Naji Mujahid of the DC Radio Co-op/Peoples’ MEDIA Center, this work is a documentary about the plight of Troy Davis who has been on Death Row in Georgia since 1991; throughout this time he has maintained his innocence. He was convicted with no material evidence and solely on the testimony of 9 key witnesses by the State. However, since the recantation of 7 of them, his case garnered worldwide support and calls for a new trial.

CREDITS:
DC Radio Co-op/Peoples’ MEDIA Center, Voices With Vision, Pacifica Radio, Naji Mujahid, Ryme Khatkouda, Thomas Ruffin, Martina Correia, Brian Stevenson, Diane Rust-Tierney, Shujaa Graham, Virginia Davis, Kirsten Bridgeford, and Marcus Garvin.

Special thanks to Free Speech Radio News, WPFW-Pacifica, Monica Lopez, Nathan Moore, and Kalonji Changa.

Music by: Beanie Sigel, Cee-Lo Green, Luci Murphy, Pam ParkerÂ

Please forward this far and wide, post it on your website, download it, copy it, distribute it, play it in part or in whole*.

*As with any journalistic work, give credit to the author; Naji Mujahid of the DC Radio Co-op and Peoples’ MEDIA Center.

Straight ahead,
Naji Mujahid

THE IMPLICATION OF THE STORED COMMUNICATIONS ACT ON DIGITAL FORENSIC EVIDENCE AND THE REASONABLE EXPECTATION OF PRIVACY

Of all of the recent technological developments that have expanded the surveillance capabilities of law enforcement agencies at the expense of individual privacy, perhaps the most powerful is cell phone location tracking[1].  Close to ninety percent of American adults own a cell phone[2].  Such pervasive cell-phone use has caused the way Americans conduct their affairs to evolve.  This ubiquity of cell phone use creates the opportunity for law enforcement to use them as convenient tools for tracking suspects and persons of interest.

In 2011, law enforcement agencies sent nine popular cellular-service providers over 1.3 million requests for customer cellular data[3].  In August of that year, 35 ACLU affiliates filed over 380 public records requests with state and local law enforcement agencies to ask about their policies, procedures and practices for tracking cell phones.  While virtually all of the roughly 250 police departments that responded to their request said they track cell phones, only a tiny minority reported consistently obtaining a warrant and demonstrating probable cause to do so[4].  In most cases, the means by which law enforcement are able to track cell phones is by court order.

Police are then able to obtain call records, text messaging records, data usage information, and historic cell site location information (CSLI).  This information can then be aggregated to develop, with some degree of certainty, the whereabouts of a suspect.  Although the court has previously reached the conclusion that people do not have a privacy interest in their call records[5], there is much debate over the privacy interest inherent in CSLI.

CSLI includes a record of a particular cell phones signal interaction between one or more cell towers (antennae).  When a cell phone is turned on, it sends out signals approximately every seven seconds.  The signals are captured by the cellular network and it includes identifying information about the phone, including location.  When a phone call is made, the cell phone attaches to the tower with the strongest signal which is not necessarily the nearest tower.  During the course of the phone call, cell phone may switch between multiple towers; sometimes even using them simultaneous.  Simultaneous use of multiple towers location can be determined within a geographical area by a process of ‘triangulation’[6].

The reliability of this information in providing an accurate approximation of a suspect’s location can and should be interrogated from one case to the next.  This paper does not discuss the reliability of CSLI, rather this paper will discuss problems related to admissibility; particularly whether or not the current procedure for obtaining this information violates the privacy protections of the United States Constitution.

 

 

THE STORED DIGITAL COMMUNICATIONS ACT: GATEWAY TO CSLI

This paper will discuss the impact of 18 U.S.C. § 2703, the Stored Communications Act (SCA), on the use of digital forensic evidence  in criminal proceedings.  The SCA is the codification of Title II of the Electronic Communications Privacy Act of 1986[7] (ECPA).  Title II addresses access to stored wire and electronic communications and transactional records. It’s purpose is to protect privacy interests in personal and proprietary information while protecting the government’s legitimate law enforcement needs[8].

Our discussion primarily relates to Section 2703 of the SCA which describes the conditions under which the government is able to compel a digital service provider, such as the internet or telecommunications companies, to disclose “customer or subscriber” content and non-content information for the various types of service.  These services include GPS, cell site location information (CSLI) such as historical cell-site data, cloud services, and social media content.

  • 2703 provides the authorization for a “government entity” to seek disclosure from an “electronic service provider” of “electronic communications” that are in “electronic storage”. §2703 differentiates between information that has been stored for more or less than 180 days. Information that has been stored for less than 180 days can only be obtained “pursuant to a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction.”[9]

As for information that has been stored for more than 180 days, probable cause is not necessary and can be obtained through subpoena or court order “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.”[10]  This is essentially a reasonable suspicion standard[11].  The requirements for the information necessary to obtain a court order are found in subsection ‘d’ of 18 U.S.C.A. § 2703.  Hence, they are often referred to as ‘d-orders’.

 

DISPARATE DECISIONS in the JUDICIARY

 

On occasion, requests for d-orders have been challenged by the courts.  A notable and recent example is In re Application of the United States for Historical Cell Site Data where the court was “called on to decide whether court orders authorized by the Stored Communications Act to compel cell phone service providers to produce the historical cell site information of their subscribers are per se unconstitutional[12].”  The 5th Circuit Court held to the contrary, whereas the lower district court and the magistrate had concluded that the request for a d-order could be denied based on an interpretation of the SCA that gives the judge discretion to deny the request and on their belief that § 2703 is unconstitutional regarding the absence of a probable cause standard.

The issues raised by parties involved boil down to a Katz[13] analysis; whether or not the defendant had a “reasonable expectation of privacy”.  The Circuit Court allowed the amici participation of the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF).

 

The Government and the ACLU focus their analysis of the constitutionality of the SCA as applied to historical cell site data on distinct questions. The ACLU focuses on what information cell site data reveals — location information — and proceeds to analyze the § 2703(d) orders under the Supreme Court’s precedents on tracking devices. In contrast, the Government focuses on who is gathering the data — private cell service providers, not government officers — and analyzes the provision under the Court’s business records cases.[14]

 

The issue raised by the ACLU is that that historical CSLI allows the government to compile an intrusive view into their target’s whereabouts and that those whereabouts may be such that a reasonable expectation of privacy exists.  This is distinguished from the reasoning in United States v. Jones[15]. In Jones, the Supreme Court reasoned that a tracking device did not violate the 4th Amendment so long as the vehicle being tracked was observable by the naked eye; in other words, there is no expectation of privacy on a public street, and therefore observation of a target on a public street does not offend their reasonable expectation of privacy.  Furthermore, they reasoned that the tracking device simply enhanced their ability to follow a target.

The government’s view in this case implicates the third party doctrine.  Specifically that by using a cell phone, whether for calling, texting, or using the internet, we knowingly expose our usage to the service provider and thereby eliminate any reasonable expectation of privacy regarding that information.  Despite the 5th Circuit Court siding with the government, these issues have been raised in other Circuits and the results have not been uniform.

Recently, in United States v. Davis[16], 754 F.3d 1205 (11th Cir. June 11, 2014), the 11th U.S. Circuit Court of Appeals held that police also must obtain a warrant for cell site information from wireless phone companies.  In 2011, the 3rd Circuit rejected the conclusion that probable cause was required for all historical cell site location information, but concluded that the statute leaves magistrates discretion to require probable cause when circumstances deem it necessary[17].

The 5th Circuit reached a different result in 2013. It agreed with the 3rd Circuit that the issuance of § 2703(d) orders for historical cell site information is not per se unconstitutional, but concluded that such information is a business record; the third party doctrine applies, and magistrates have no discretion to decline to issue a Section 2703(d) order when the appropriate showing has been made[18].

Finally of note is a 6th Circuit Decision, United States v. Warshak.  In that 2010 case, the court ruled that law enforcement must have a warrant, not just a d-order, to compel a telecommunications provider to disclose the contents of a customer’s email.  To the extent that the Stored Communications Act provides otherwise, the 6th Circuit held that the statute is unconstitutional.

In addition to these disparate decisions on the federal level, state courts have also grappled with whether or 2703 (d) violates the constitution and whether or not judicial discretion regarding compliance can be implied.  However, for the most part, lower courts have accepted the government’s use of a D Order to compel historical cell site information[19].  A resolution to these discrepancies may be forthcoming in US v. Davis.  The decision in Davis was a panel decision and a government petition for an en banc decision was granted.  The prior decision was therefore vacated[20].  Since then, four cases have declined to follow the rationale of the prior holding:

  1. Although the Tenth Circuit has not decided whether 2703(d)‘s “reasonable grounds” standard is constitutional, the Court concludes that the Tenth Circuit would not adopt the reasoning in Davis. The Eleventh Circuit’s recent order vacating the decision to rehear the case en banc shows that the soundness of Davis’s holding is subject to question within even that circuit. Instead, to determine the constitutionality of § 2703‘s “reasonable ground standard,” the Court follows the Fifth Circuit’s analysis…[21]
  2. In light of U.S. Supreme Court precedent, and the application of the business records/third-party doctrine by the Fourth Circuit, the Court finds that Giddins’s Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under § 2703(d)[22].
  3. [Davis], deemed electronic location evidence as personal effects that an individual has a reasonable privacy interest in. However, it is important to note that the Davis decision has been withdrawn… Thus the Davis opinion does not presently support or even offer persuasive authority for the Defendants’ arguments[23].
  4. In support of this argument[24], Ford directs the court to authority for the proposition that an individual placing or receiving a call on a cell phone has not voluntarily exposed their location information. See United States v. Davis… The Fifth Circuit, responding to the same argument raised by the ACLU in S. for Historical Cell Site Data, rejected Ford’s position outright. We agree with the Fifth Circuit’s conclusion[25].

Justice Sotomayor recognized the narrow view necessary for the Court to reach their decision in Jones[26], however, her concurring indicates her opinion that the Court may need to expand its notions of privacy in the wake of the technological developments since the SCA was enacted in 1986.  Her opinion in this regard is worth quoting at some length:

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on… I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power and to prevent “a too permeating police surveillance,” … More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties… This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks… But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.[27]

The Court may well have an opportunity to consider these issues in the near future.  No matter what the outcome of the en banc hearing in Davis, the decision will most likely get appealed up to the Supreme Court.

 

INACTION in CONGRESS

 

In recent years, prominent judges have, in written opinions, described and voiced concern over the harms associated with modern location tracking technologies. In doing so, they have suggested that Congress, not the judiciary, might be in the best position to provide appropriate incentives and remedies[28].  This is easier said then done.  In recent years, there have been four bills introduced that have attempted to reform geolocation privacy standards.

The bill most notable regarding this discussion is the Geolocation Privacy and Surveillance Act of 2013[29]The GPS Act seeks to establish a legal framework that gives government agencies, commercial entities, and private citizens clear guidelines for when and how geolocation information can be accessed and used.  The bill would create a process whereby government agencies can get a probable cause warrant to obtain geolocation information in the same way that they currently get warrants for wiretaps or other types of electronic surveillance.  In addition, the GPS Act would prohibit businesses from disclosing geographical tracking data about its customers to others without the customers’ permission[30].  Unfortunately, the bill has not been reintroduced.

The more recently introduced bill, the Location Privacy Protection Act of 2014 would prohibit companies from collecting or disclosing geolocation information from an electronic communications device without the user’s consent to private parties[31].  It does not discuss any barriers to law enforcement acquiring this information.  This issue is central to the GPS Act.  Rep. Chaffetz testified at a subcommittee hearing that he introduced the GPS Act because “the government and law enforcement should not be able to track somebody indefinitely without their knowledge or consent or without obtaining a probable cause warrant from a judge.[32]

 

CONCLUSION

 

Cell phone use will most likely continue to proliferate.  Along with that there will be new gadgets and electronics that gather location data (and biometric date, for that matter) and the need for reform with regard to government access to this data will only multiply.  Eventually this issue will reach the Supreme Court and I predict that the Court will err on the side of a more expansive notion of the 4th Amendment to complement the more expansive capabilities of the government to intrude.  A final question that will need to be answered in the event that this prediction comes to pass, is whether or not the decision would be retroactive with regard to “harmful error” and require new trials.

Regarding the GPS Act, the House version only acquired 20 co-sponsors and the Senate version had only 1.  This lack of support probably contributed to the bill not being reintroduced.  If those figures are indicative of the Congressional interest in protecting the privacy interest of Americans in their CSLI (and other data), not much protection can be expected.

[1]https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request

 

[2] ARTICLE: STOPPING POLICE IN THEIR TRACKS: PROTECTING CELLULAR LOCATION INFORMATION PRIVACY IN THE TWENTY-FIRST CENTURY, 12 Duke L. & Tech. Rev. 200, 200-201

 

[3] Id.

 

[4]https://www.aclu.org/protecting-civil-liberties-digital-age/cell-phone-location-tracking-public-records-request. (Accessed December 24, 2014)

 

[5] “there is no constitutionally protected reasonable expectation of privacy in the numbers dialed into a telephone system” Smith v. Maryland, 442 U.S. 735, 738, 99 S. Ct. 2577, 2579, 61 L. Ed. 2d 220 (1979)

 

[6] COMMENT: Can You Find Me Now? The Federal Government’s Attempt to Track Criminal Suspects Using Their Cell Phones, 43 Ariz. St. L.J. 591, 596-597.

 

[7] Author’s note:  ECPA was itself the codification of the wiretap provision of the Omnibus Crime Control and Safe Streets Act of 1968 (OCCSSA).  The OCCSSA was enacted as a government response to the urban rebellions that had been occurring spontaneously across the country as a response to police brutality.  Additionally, the FBI and other police agencies were already using wiretaps and against individuals and groups that were considered subversive, such as Martin Luther King Jr.  The wiretap provision created a legal framework for them to do what they had already been doing.

 

[8] ¶ 14,140 Electronic Communications Privacy Act Of 1986, 2009 WL 3960253. Guide to Computer Law.

 

[9] 18 U.S.C.A. § 2703 (West)

 

[10] Id.

 

[11] In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D), 707 F.3d 283, 287 (4th Cir. 2013)

 

[12] In re Application of the United States for Historical Cell Site Data, 724 F.3d 600, 602, 2013 U.S. App. LEXIS 15510, 1-2, 58 Comm. Reg. (P & F) 1292, 2013 WL 3914484 (5th Cir. Tex. 2013)

 

[13] My understanding of the rule that has emerged from prior decisions is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’  Katz v. United States, 389 U.S. 347, 361, 88 S. Ct. 507, 516, 19 L. Ed. 2d 576 (1967).

 

[14] Id. at 608

 

[15] In [United States v. Jones, 132 S. Ct. 945, (U.S. 2012)], the Supreme Court found that that the government had conducted a search within the meaning of the Fourth Amendment when its investigators installed a GPS device on a suspect’s car and tracked his location monitoring for a twenty-eight day period. 132 S.Ct. at 949. The majority opinion did not find a general expectation of privacy in location data, but instead relied on the fact that government agents had committed a trespass against the suspect’s effects when they placed a GPS device on his car (the “trespass theory”). Id. at 952. Justice Alito, joined by four other justices, wrote a concurrence that relied exclusively on a privacy theory. Id. at 958 (Alito, J., concurring) (analyzing the issue “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove”). Justice Sotomayor, who concurred separately, discussed the possibility of applying a more generalized “privacy theory” to electronic location data but ultimately relied on the trespass theory “because the government’s physical intrusion on [the defendant’s] jeep supplies a narrower basis for decision.” Id. at 957 (Sotomayor, J., concurring).  United States v. Banks, No. 13-CR-40060-DDC, 2014 WL 4594197, at *2 (D. Kan. Sept. 15, 2014).

 

[16] Decision overturned; discussed infra.

 

[17] By Marcus A. Christian, Recent Decisions Restrict Law Enforcement Access to Cellphone Information: Are More on the Way?, 28 Westlaw Journal White-Collar Crime 2 (2014)

 

[18] Id.

 

[19] Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 143 (2012)

 

[20] United States v. Davis, 573 Fed. Appx. 925, 2014 U.S. App. LEXIS 17111, 2014 WL 4358411 (11th Cir. Fla. 2014).

 

[21] United States v. Banks, No. 13-CR-40060-DDC, 2014 WL 4594197, at *3 (D. Kan. Sept. 15, 2014).

 

[22] United States v. Giddins, No. CRIM. WDQ-14-0116, 2014 WL 4955472, at *10 (D. Md. Sept. 30, 2014)

 

[23] United States v. Rogers, No. 13 CR 952, 2014 WL 5152543, at *3 (N.D. Ill. Oct. 9, 2014)

 

[24] In the dissenting opinion, Judge Chapa wrote: I agree with the Third and Eleventh Circuits and conclude that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.”  I would therefore hold that Ford did not voluntarily surrender his reasonable expectation of privacy in his physical location and movements simply by using his cell phone. Because the State did not secure a warrant before obtaining the historical cell site data from Ford’s cell phone provider, Ford’s Fourth Amendment rights were violated, and the trial court should have granted his motion to suppress.

 

[25] Ford v. State, 444 S.W.3d 171, 189-90 (Tex. App. 2014), petition for discretionary review filed (Oct. 15, 2014)

 

[26]“the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.”  United States v. Jones, 132 S. Ct. 945, 957 (U.S. 2012).

[27] Id.

 

[28] Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards for Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 164 (2012)

 

[29] On March 21, 2013, Senators Ron Wyden (D-OR), Mark Kirk (R-IL), and Congressman Jason Chaffetz (R-UT) reintroduced the legislation for the 113th Congress.

 

[30] http://www.gps.gov/policy/legislation/gps-act/#gpsact. (Accessed December 24, 2014)

 

[31] Id.

 

[32] Article: Stopping Police In Their Tracks: Protecting Cellular Location Information Privacy In The Twenty-First Century, 12 Duke L. & Tech. Rev. 200, 215

Protecting the Interests of the Community by Localizing the Jury

By Naji Mujahid[1]

ABSTRACT: In the wake of the high-profile non-indictments of the police officers involved in the Michael Brown and Eric Garner cases, the structure of the judicial system has been brought into question. Both legal minds and lay people were confused and outraged by the failure to hold police officers accountable. There are many possible reasons for these unfavorable grand jury decisions, one of which is the breadth of the jury pool. The American legal system guarantees that the jury reflects a “fair cross-section of the community”; and this article will interrogate the meaning of “community” and argue that creating jury pools from such large areas as entire counties or states is over-broad. Instead, juries should be localized–comprised of citizens from the same area where the alleged offense occurred. Such a construct creates a system of community justice as a localized jury will have more insight into the situations before them, more of a stake in a just and equitable outcome, and a jury composition that actually reflects the community involved (i.e., black community = black jury).  Indeed, the jury is the guardian of the public trust and the voice of the community’s values inside a legal system dominated by lawyers and judges[2].

 

INTRODUCTION

The origins of the American criminal justice system are found in English common law.[3]  Throughout its existence, it has been a tool of white supremacy, capitalism, and patriarchy. Pontifications of fairness have been belied by pronounced injustice and inequality.  The phrase ‘The White man speaks with a forked tongue’, an observation often attributed to the Native Americans, eloquently characterizes the decrees of lawmakers and judicial officers alike who have been comfortably tone-deaf to the blatant hypocrisy of their own language. Take for example the immortal declaration that “All men are created equal.”[4]  Thomas Jefferson penned those words during the height of slavery and within the same document, would go on to equate the King’s support of slave insurrections as an example of tyranny[5], and justification to rebel for American independence.

The analysis above provides a contextual framework within which the actual subject matter of this article can be considered. In reading American jurisprudence, one must be hyper-aware that the language used may not always be practically applied. For instance, “all”, when practically applied, often means ‘some’ at best and ‘a few’ at worst. Racial minorities, women, and the poor have historically been politically invisible and therefore excluded from language that confers political rights. This invisibility coupled with the application of what appears to be objectivity creates a dangerous camouflage for insensitivity to or deliberate disregard of the needs of suspect classes and minority groups.

Indeed, attempts to avoid the role that race plays in a given situation has the potential to do more harm than good because it denies the social reality that exists.  Cynthia Lee’s analysis of the trial of George Zimmerman[6] provides a perfect example[7].  There she argues that the prosecution’s efforts to have a “colorblind” trial allowed the implicit bias of the jurors to rule the day.  These mistakes, as well meaning as they may be, can be avoided, but acceptance of the facts is the first step.  The fact is, there has been a significant amount research conducted on racial discrimination by jurors and Jerry Kang and colleagues point out that “the general research consensus is that jurors of one race tend to show bias against defendants who belong to another race (“racial outgroups”). For example, White jurors will treat Black defendants worse than they treat comparable White defendants… [recent research has also shown that] the fact that a juror was of a different race than the defendant influenced  both verdicts and sentencing.”[8]

Kang goes on to suggest various countermeasures to guard against implicit juror bias.  One of those suggestions, described as the “second-best” option supports the focus of this article.  That being the diversification[9] of the jury and deliberate efforts to ensure that Black people are represented. Kang, relying on the research of Sam Sommers, concludes that “racial diversity in the jury alters deliberations… Simply by knowing that they would be serving on diverse juries (as compared to all-White ones), White jurors were less likely to believe, at the conclusion of evidence but before deliberations, that the Black defendant was guilty.”[10]

Towards the end of diversifying the jury, this article concerns the matter of representative jury composition and suggests a method that can increase the chances of petit juries[11] truly reflecting their respective communities. The Supreme Court has interpreted the Sixth Amendment to require only the opportunity to have a representative jury. Specifically, that the jury venire be composed of a “fair cross-section”[12] of the community from which it is drawn[13].

In an objective sense, this may seem reasonable, because unfortunately, it may be practically impossible to guarantee a truly representative petit jury for every trial. However, the insensitivity of this objectivity is exposed when one considers that as the majority demographic in this country, white Americans, are insulated from the cruelty of chance that may deprive them of a jury of their peers. Indeed, the chance of a white defendant being confronted with an all-black jury is so unlikely as to make it a ridiculous thought.[14]

The reality that minority groups and suspect classes are the ones at greater risk of having an unrepresentative jury, should be a central consideration in working towards a solution. Different ideas have previously been proposed[15] and some creative strategies have previously been employed[16] to ensure that the jury pool is representative of the community from whence the accused came, but none have yet been successful. The solution being offered here is deliberately simple: localize the jury pool by shrinking the vicinage.

This is not a novel concept[17]. In fact, “the United States Constitution expressly mandates the provision of local juries in Article III[18] and the Sixth Amendment.[19]  While the venue provision in Article III requires that all criminal trials be within the state in which the crime was committed, the Sixth Amendment requires criminal trial “by an impartial jury of the State and district wherein the crime shall have been committed.”[20] This clause, known as the vicinage provision, and its meaning, have gone through many rounds of debate regarding how to define and apply it.

Part I of this paper will discuss the historical debate surrounding the concept of vicinage as it should be applied to American jurisprudence. Part II will discuss the function that the jury is suppose to play as part of the democratic institution and the concept of community as it relates to the right to have a jury (pool) that represents a “fair cross-section” of the community. Part III will contextualize the failure of the jury to perform the functions outlined in Part II in the high profile case of the Michael Brown grand jury. Finally, Part IV will elaborate on the application of the presented solution and offer the conclusion.

PART I

The term ‘vicinage’ refers to the prospective jurors within the vicinity of an offense[21]. The process of producing a jury, including the geography of the vicinage, is different from state to state. The trial jury in either a civil or criminal case is chosen from a list called a venire, or jury pool, that has been compiled by the court[22]. The method of selecting names for the venire varies. In many states, the list is compiled from voter registration rolls and/or drivers license lists. In some jurisdictions, the federal and state courts use the same lists for a given area. The jury pool is sometimes compiled with the help of jury commissioners appointed by the presiding judge[23]. Jurors are then chosen (summoned) at random from the jury pool of the district in which  that court has jurisdiction. For instance, if it is a county court, the jurors will come from that county[24].

The English common law concept of drawing a jury from the area of the crime expected that the jury would have personal knowledge of the situation, perhaps even personal knowledge of the defendant, and that the jurors would also engage in their own investigation[25]. Essentially, jurors were working on behalf of the Crown to get to the bottom of an issue[26]. In the American colonies, the jury evolved to relinquish its direct connection and responsibility to the Crown and instead ” became a buffer between the accused and the government.”[27] Although the use of juries drawn from the vicinity of the crime was not uniform throughout the American colonies, the institution of the jury system was so meaningful to the colonists that British interference with the vicinage rights contributed to the desire for American independence.

Despite the colonial diversity of practice concerning the use of petit jurors drawn from the vicinity of the commission of the crime, when Parliament passed the various venue acts which permitted trial in another province or in England, the colonists consistently attacked these venue statutes as depriving the accused of a trial by his peers from the vicinage of the crime. … Again, in light of the actions taken by Parliament, the colonial history with respect to trial by a jury of the vicinage, and the protests about that right being violated, it is not surprising that another grievance specifically listed in the Declaration of Independence read: “For depriving us in many cases, of the benefits of Trial by Jury.”[28]

Indeed, Patrick Henry once asked and answered the rhetorical question “Why do we love this trial by jury? … Because it prevents the hand of oppression from cutting you off!”[29]

Following the American Revolution, the former colonies continued to progress through the growing pains of independence. It was during the Federal Constitutional Convention of 1789 that the current manifestation of the jury trial, particularly with regard to the vicinage provision, took shape. “Both proponents and opponents understood that a jury of the vicinage would be different from a jury from any-where else with respect to each of the three major functions performed by a jury: finding the facts, applying the law to the facts, and serving as the conscience of the community.”[30]

At that time it was considered important to some proponents of the vicinage that jurors would have personal knowledge of the accused, the accuser and witnesses, and of the crime itself. Opponents of a vicinage provision were concerned that a juror with such familiarity with the case might not be impartial. Indeed, the process of voir dire[31] and the Constitutional right to an impartial jury mitigates this concern today. Today, a juror with personal knowledge of any of these things would most likely be stricken from the jury for fear of impartiality; especially if that juror had already formed an opinion. Nevertheless, at least one of the arguments made regarding the superior fact-finding ability of vicinage jurors is that they will be best able to understand subtleties such as “mannerisms, colloquialisms, and fashions of the participants”[32], as well as facts related to the setting and location.

Regarding the application of law to facts, Thomas Jefferson once wrote: “Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of laws is more important the making of them.”[33] It was considered that the accused deserved the privilege to not be subjected to a loss of liberty (or for that matter, life and property) without the unanimous[34] consent of his/her own community.

Similarly, it was considered that the community had a right to participate in the resolution of alleged law-breaking within their midst. This goes to the notion of jury duty being a civic duty and a direct way for popular participation in law-making. “If jurors were chosen from the place of the commission of the crime, jurors from the community affected by the crime would apply the law to the facts of the particular case. Local communities, through their juries, would thereby be able to “make” the criminal law for their community. Local responsibility for setting community standards, for defining what conduct was considered criminal within that community, would be encouraged.” [35] This “applying of the law” naturally compliments the idea that the jury should be the conscience of the community.

Ultimately, a compromise was reached that balanced the agreement that a vicinage provision should exist, with the disagreement about how it should be applied. The Sixth Amendment use of the word “district” rather than state, county, town, or some other iteration of a locality is deliberately amorphous. It allows the state or local government the flexibility to create judicial districts that fit the need of the community. Combined with the venue provision of USC Article 3, Section 2, Clause 3,[36] the judicial system attempts to assure that jury trials and the jury pool are kept within relative proximity to the commission of the crime. However, when this was established, the states were less populous and diverse. Furthermore, the need to assure minority representation and participation was not an issue to be considered.

In order for the conscience of the minority communities to actually be given influence, their representation and participation in juries must be assured. In order for this to happen, their conscience must not be diluted with the conscience of the larger society. To the extent that such dilution occurs, it has the potential to be a neutralizing influence such that only a façade of equality remains.

  • It’s just like when you’ve got some coffee that’s too black, which means it’s too strong. What do you do? You integrate it with cream; you make it weak. But if you pour too much cream in it, you won’t even know you ever had coffee. It used to be hot, it becomes cool; it used to be strong, it becomes weak. It used to wake you up, now it puts you to sleep.[37]

As Thomas Jefferson recognized[38] , the import of juror participation is more precious than voter participation.[39] The jury and its role as a buffer between the accused and the government is expected to be a shield against oppression, tyranny, and injustice. In order for this buffer to be effective, juries must adequately represent minority communities.

PART II

“Since it was first recognized in [the] Magna Carta, trial by jury has been a prized shield against oppression, but, while proclaiming trial by jury as “the glory of the English law,” Blackstone was careful to note that it was but a “privilege.”  Our Constitution transforms that privilege into a right.”[40] The clause was clearly intended to protect the accused from oppression by the Government[41]. It is understood that the purpose of a jury is to guard against the exercise of arbitrary power; to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor; and in preference to the professional, over-conditioned, or biased response of a judge.[42]

As it is written, the Sixth Amendment does not guarantee the jury to represent the conscience of the community, it simply grants the right of an impartial jury. The Court has  “interpreted the Sixth Amendment’s right to an impartial jury as requiring that the venire from which the jury is selected represent a “fair cross-section’ of the community.”[43] The Supreme Court, in Taylor v. Louisiana, held that “the selection of a petit jury from a representative cross-section of the community is an essential component of the Sixth Amendment right to a jury trial.”[44] The Court found that a process that failed to comport with the cross-section requirement lost the purposes of the jury. These purposes are: (1) to “guard against the exercise of arbitrary power;” (2) to preserve “public confidence in the fairness of the criminal justice system;” and (3) to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”[45] The Court also relied on the language in Ballard,[46] where Justice Douglas had stated that “a flavor, a distinct quality is lost if either sex is excluded.”[47] Similarly, a distinct flavor or quality is lost if cognizable groups, such as racial minorities, are missing.

The ‘fair cross-section’ consideration was developed with the idea of integrating a typically white-male jury and addressing the issue of systematic exclusion. The Court in Duren v. Missouri[48] enunciated the test for establishing a “fair cross-section’ violation. The defendant must make a prima facie case, demonstrating three facts: (1) the alleged exclusion affects a “distinctive group;” (2) the number of members from the group is unreasonable in proportion to the number in the community; and (3) the underrepresentation is the result of “systematic exclusion.”[49] If the prima facie case is made, the state must then show that the exclusion serves a significant state interest.

The issue being addressed here has less to do with a systematic exclusion, and more to do with a developing a solution for the underrepresentation of Black people on juries regardless of the reasons for it. Underrepresentation may occur in different places and/or for different reasons. With respect to the fair-cross section requirement as a response to underrepresentation on juries, past cases have typically (but not exclusively) concerned either women or Black people. Therefore, having a fair cross-section could be interpreted as having a jury of people other than white males. Also, the idea of underrepresentation should be considered with the reciprocal value of overrepresentation. In other words, if African-Americans are underrepresented, this means that whites are overrepresented. The present solution under discussion aims to address this issue. If the jury venire is localized, there is less chance that white people will be overrepresented in matters that primarily concern the black community.

The word community, like the word district discussed supra, is an amorphous and undefined area. Either word can be applied to an entire state, county, ward, town or even a particular side of town. These various areas may have interests that are widely shared, interests that are competing, or interests that have nothing to do with the other. As it relates to juries, the fair cross-section requirement is to be applied to the vicinage. However, there is no requirement as to how large or small the vicinage is supposed to be. It can be expanded or limited as necessary.

 

Figure 1

 

Using Figure 1 as an example, consider this an entire district. The Upper Left (UL) quadrant of the district is a majority (not exclusively) black area. The other three quadrants are majority (not exclusively) white. If a crime occurs in UL and the vicinage is drawn from the entire district, the most that a defendant from UL can hope for is 3 jurors from UL on average, sometimes more. However, it is mathematically more likely that it would be less. To the extent that the quadrants are separated on racial lines, the majority black quadrant is unlikely to have a majority black jury. On the other hand, no matter where a crime occurs, the jury is most likely to be majority white; sometimes it may even be entirely white. However, if the vicinage is adjusted such that the district is divided into four components and the vicinage for crimes that occur in UL are exclusively drawn from UL, the jury composition will change immediately and dramatically. More importantly, this could be done without violating the Equal Protection clause of the Fourteenth Amendment, or the Sixth Amendment right to an impartial jury[50].

PART III

The Michael Brown homicide in Ferguson, Missouri, provides an exemplary case study. The City of Ferguson sits within St. Louis County. The demographic population of St. Louis County is 24 percent black and about 68 percent white. The population of Ferguson, on the other hand, is approximately the inverse: 67 percent black and 29 percent white[51]. In Missouri, the jury pool comes from the county, not the city, and as it turned out, the petit grand jury of 9 whites and 3 blacks roughly reflected the county demographics. However, if the jury pool was localized to the City of Ferguson, it is numerically more likely that the jury would have reflected the demographics of Ferguson, rather than St. Louis County. Had that been the case, there is no way to know if the outcome would have been different, but the jury’s decision may have been better informed and received, thus contributing to public confidence. Even if one believes that the link between diverse juries and impartiality is tenuous, this second aspect of institutional legitimacy is incontrovertible: “confidence in the criminal justice system rests as much on the appearance of fairness as on the delivery of “accurate” results. [T]he public is more likely to question the accuracy of verdicts when a non-representative tribunal delivers them, especially when the issues are controversial or the crime is race-related.”[52]

Recalling the holding in Taylor, the Court found that the purposes of the jury were lost by a process that failed to comport with the cross-section requirement: (1) to “guard against the exercise of arbitrary power;” (2) to preserve “public confidence in the fairness of the criminal justice system;” and (3) to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”[53] Regarding point one, the Michael Brown case involved a grand jury, which unlike a jury trial is a prosecutorial driven secret proceeding where the jury hears the testimony of the prosecution’s witnesses in the defendant’s absence, allowing them no opportunity to confront the witnesses against them. Under these circumstances, prosecutors typically have no difficulty getting the indictments they seek. If the federal grand jury is any indication of what transpires at the state-level, prosecutors get their indictments at a rate of 16,000 to 1. According to the FBI’s Bureau of Justice Statistics[54], U.S. attorneys prosecuted 162,000 federal cases in 2010, with grand juries returning an indictment on all but 11 of them. With such power and influence over the process, the importance of the jury as a “hedge against the overzealous or mistaken prosecutor” cannot be underestimated.[55]

It has been well documented that blacks are statistically less likely to trust police than are whites; a recent Gallup Poll[56] provided evidence of this fact. It found that overall 57 percent of Americans trust the police in their neighborhoods. This includes more than 60 percent of whites and exactly 57 percent of Hispanics. That number falls dramatically, however, within the Black community, where just 34 percent feel confident in the police. In urban communities, blacks feel even less comfortable with their law-enforcement agents. Just 26 percent of African-Americans living in big cities say they trust the police. In 2014, it was observed that “lack of faith [in the police] ha[d] become kinetic following the grand jury decisions in Ferguson and in Staten Island, N.Y., not to indict police officers in the death of Brown or in the July choke-hold death of Eric Garner.”[57]

Because many of the high-profile racial incidents involving police have occurred in urban settings, blacks living in and around big cities may be more sensitive to these tensions with police than blacks living in non-urban areas. It is possible that these high-profile events were not isolated incidents but more extreme examples of ongoing and widespread tensions between police and blacks, which many urban blacks may experience firsthand[58]. In the particular case of Brown, the lack of African-Americans on the grand jury may have been a critical to the outcome. Although the crime occurred in the City of Ferguson, the jury venire was drawn for the larger, whiter county of St. Louis, thus diluting the sensibilities of the affected Black community. To the extent that this dilution is significant enough to neutralize the concerns of minority groups, the aforementioned function of the jury as a means to share in the administration of justice as a civic duty becomes meaningless.

PART IV

Presently, the population of the United States is as high as it has ever been and just over 80 percent of the population lives in an urban environment.[59] Such high concentrations of people mean that the area from which a vicinage is drawn can be smaller, yet not over-burdensome for the population, and still be sufficient. A smaller vicinage potentially creates a community-centered jury. Areas that identify a problem with underrepresentation or overrepresentation of a particular group(s) can redraw their jural districts based on zip code, ward, or townships as the case may be. Such action is at the discretion of the legislature and is not an exclusionary effort, but rather, a balancing effort. As shown in Figure 1, white people who live in the UL area would not be excluded from jury service if the jural districts were divided into the four quadrants.

The consideration here is not simply an issue of black and white. It’s an issue of recognizing that black and white communities often have divergent interest or different matters of principal concern. One of those issues was raised above and has to do with public confidence in the police department. Another issue is the disparity between police violence[60] and the lack of accountability that goes along with it. Police kill with relative impunity and the lives taken are disproportionately black lives; a ratio of almost 30:1 compared to their white counterparts. “[T]he 1,217 deadly police shootings from 2010 to 2012 captured in the federal data show that blacks, age 15 to 19, were killed at a rate of 31.17 per million, while just 1.47 per million white males in that age range died at the hands of police.”[61] Jury verdicts and indictments favoring the officer(s) do not inspire confidence in the judicial system (in fact, the opposite can be said); particularlu when few, if any, members of the affected community are present on the jury.

 

FINAL NOTE

            In the beginning of July 2015, a jury selection process began for the trial of Randall ‘Wes’ Kerrick, a white police officer who is on trial in Charlotte, North Carolina, for the 2013 killing of Jonathan Ferrell, an unarmed Black man[62]. I was present for parts of it, and I watched as the few Black people that were summoned provided responses during voir dire that had the intended or unintended consequence of having them easily excluded from jury duty. I wondered how many times, in courthouses all around the country, an all-white jury has been seated because of potential black jurors making themselves easy targets for being stricken for cause[63].

            After speaking with criminal defense attorneys in Washington, District of Columbia, Baltimore, Maryland, and Charlotte, North Carolina, as well as sitting in on jury selections, a common problem is present: many of those who respond to jury duty do not want to be there and search for reasons to be excluded. This is not a problem that is drawn on racial lines[64]. Indeed, people across the demographic spectrum seek to avoid jury duty[65]. However, because of the underrepresentation of some groups, such as Black people, it is especially damaging to the interests of the Black community when Black people compound the problem of underrepresentation by avoiding jury service. A jury pool that is under-representative of Black people is one problem, but the problem of Black people avoiding jury duty when summoned is another.

In addition to the issue of deliberate avoidance is the issue of jurors making admissions to voir dire questions that expose “bias”. For example, some questions might be related to trust of law enforcement. As noted above, Black communities are typically least trusting of law enforcement; therefore, voir dire questions related to that lack of trust might serve as proxy questions to remove blacks from juries in a constitutionally acceptable way[66]. Potential Black jurors must learn to answer voir dire questions in a way that does not make them easily stricken for cause. One of the purposes of voir dire is to uncover bias within the potential jurors. Those seeking to get seated on the jury should answer questions in a way that does not expose any bias that they may have or, if this is unavoidable, reiterate the point that they can be fair and impartial. Distrust of the police or the criminal justice system in general does not necessarily mean that one cannot be an impartial juror – despite the luck of trust. Potential jurors that have negative experiences with law enforcement and the criminal justice system are also aware that crime exists in their community; can objectively judge the credibility of the evidence; and have a vested interest in a just outcome.

The criminal justice system is a racist institution and it is biased by its own nature. It protects privilege, property, patriarchy, and white supremacy. Jurors are supposed to bring their life experiences into the courthouse. This is one of the reasons for having a “fair cross-section”. However, in seeking to exclude jurors who have had negative experiences with police and whose judgment is affected by those experiences is not eliminating bias, it is supporting the biased notion that police always conduct themselves responsibly within Black communities. Furthermore, it assumes that the police should have been in the community in the first place when, in fact, the over-policing of Black communities and Black people is a known problem[67]. Black people, and marginalized people and people of color in general, must combat the inherent racism within the criminal justice system by taking jury duty seriously and engaging the opportunity to serve enthusiastically. This means not trying to get off the jury, but trying to get on the jury.

As a civic duty, jury service is the purest form of direct democracy. It should be treated with the same dogged protectionism and public expectation of participation as the right to vote, if not more. Statistics show that Americans have lost faith in the government[68] and this fact is attributed to low voter turnout. Indeed, people may have good reason to conclude that it doesn’t matter who they vote for or that those in government will not manage their duties in the best interest of the people whom they serve. Jury duty does not create this same conundrum.

Once on the jury, the jurors control the destiny of the case before them. It is within their power to acquit, convict, or even nullify. In fact, former prosecutor and current law professor Paul Butler encourages what he refers to as race-based jury nullification.[69] Jury Nullification is a jury’s knowing and deliberate rejection of the evidence or refusal to apply the law, either because the jury wants to send a message about some social issue that is larger than the case itself, or because the result dictated by law is contrary to the jury’s sense of justice, morality, or fairness[70]. Such is the jury’s ultimate duty to “guard against the exercise of arbitrary power;” to preserve “public confidence in the fairness of the criminal justice system;” and to uphold that the ideal that “sharing in the administration of justice is a phase of civic responsibility.”

[1].         Naji Mujahid (William Fenwick) is a 3rd year law student at the University of the District of Columbia – David A. Clarke School of Law. At UDC-DCSL, he is the President of the National Lawyer’s Guild. Since beginning law school, he has clerked with the Public Defender Service for the District of Columbia, the Office of the Public Defender in Alexandria, VA, and the Mecklenburg County Public Defender in Charlotte, NC. He also participated in the DC Law Students in Court clinical program and represented adults and juveniles in criminal and delinquency matters. Prior to coming to law school, he was a journalist, and activist focused on issues related to police, prisons, and repression. He continues his involvement with the Jericho Movement to free political prisoners and is on the steering committee of #Law4BlackLives. Upon graduation he will be joining the Defender Association of Philadelphia as a staff attorney. Twitter: @NajiMujahid

 

[2].         John Paul Ryan, The American Trial Jury: Current Issues and Controversies.

http://www.socialstudies.org/system/files/publications/se/6307/630711.html (last visited Nov. 12, 2015).

 

[3].         G. Edward Wright, The Path of American Jurisprudence, U. PA. L. REV. (1976).

http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=5004&context=penn_law_review

(last visited August 11, 2015).

[4].         New Jersey Sen. Bill Bradley speaking against the Nomination of William H. Rehnquist to be Chief Justice of the United States Supreme Court said,  “even as the stirring words of the declaration of independence were being written, they were being dishonored. America was practicing slavery in a form as demeaning as any in recorded history. American slaves had no legal standing. They belonged to their white owners. They could take no action to control their sale. They could not swear a legally binding oath, nor make a binding contract, nor own any property to speak of. They had no freedom of speech or movement. They were subject to their owner’s curfew. They had no privacy. Neither church nor State recognized their marriages. In sum, they were openly classified as the white man’s property and required to do the white man’s bidding.”  132 CONG REC S 12467 (1986).

[5].         “The history of the present King of Great Britain is a history of repeated injuries and usurpations, all having in direct object the establishment of an absolute Tyranny over these States. To prove this, let Facts be submitted to a candid world . . . He has excited domestic insurrections amongst us, and has endeavored to bring on the inhabitants of our frontiers, the merciless Indian Savages. . . .” THE DECLARATION OF INDEPENDENCE para. 2 (US 1776).

 

  1. State of Florida v. George Zimmerman was a criminal prosecution of George Zimmerman on the charge of second-degree murder stemming from the shooting of Trayvon Martin on February 26, 2012. Zimmerman, then a neighborhood watch volunteer, shot and killed Martin during a confrontation initiated by Zimmerman as the unarmed teenager was heading back to a relative’s house in Sanford, Fla., after buying snacks at a convenience store.

 

  1. Aware that members of the community viewed the prosecution of Zimmerman as unfair scape-goating, the prosecution decided to try the case without referencing race–to take the colorblind high ground. The problem is that by not calling attention to the possibility that Zimmerman thought Martin looked suspicious because of deeply entrenched stereotypes about young Black men as criminals, the prosecution encouraged jurors to see Zimmerman and Martin as just two young men who got into a fight that tragically, but understandably, ended in death. By deliberately avoiding any discussion of race, they erased Trayvon Martin’s race from the trial even though race likely played a significant role in why Zimmerman thought Martin looked suspicious from the start and why the jury may have found Zimmerman’s account of what happened that night credible… By ignoring race, prosecutors may have unwittingly exacerbated the effects of implicit bias. A substantial body of research suggests that ignoring race leads jurors to assess Black defendants more harshly than similarly situated White defendants, but these racially disparate results are reduced when race is made salient. If prosecutors had confronted race head on by making race a salient feature of their trial strategy, they might have been able to convince the jury to see Martin in a more sympathetic light.  Cynthia Lee, (E)Racing Trayvon Martin, 12 Ohio St. J. Crim. L. 91, 106-107 (2014).
  2. Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1142-1143 (2012).

 

  1. Diversification in this context, as well as most other American contexts, means the inclusion of people of color in general. This article focuses on Blacks in particular.

 

  1. Jerry Kang, et al., Implicit Bias in the Courtroom, 59 UCLA L. Rev. 1124, 1181 (2012).

 

[11].        The petit jury are the people that actually make-up the sitting jury at trial or the grand jury.
[12].        Taylor v. Louisiana, 419 U.S. 522, 527 (1975) In Taylor, the Court found the fair cross-section requirement of the Sixth Amendment , which provides that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”  was incorporated   in the Due Process clause of the Fourteenth Amendment; and as such, the states had to adhere to it. Id. at 526 – 28. The right to a jury trial in federal cases is also set forth in Article III of the Constitution, which states that “the Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” U.S. CONST. art. III, § 2, cl. 3. Prior to Taylor, federal criminal defendants already had a statutory right to a jury drawn from a fair cross section. See 28 U.S.C. § 1861(1994).

 

[13].        This is akin to sending someone to the grocery store with a full grocery list, but being unable to complain if the only thing that they return with is tomato soup.

 

[14].        The overwhelming portion of the population is white. So, obviously, all you have to do in most jurisdictions is challenge a half a dozen blacks to end up with an all-white jury. … Now, how many jurisdictions are there where you could exercise a few preemptory challenges against whites and end up with an all-black jury? …  How many people within the sound of my voice have ever heard of a circumstance where a prosecutor was able to produce, and could have reasonable prospects of producing [an all-black jury] by opposing all whites who were in the pool of jurors? … Justice Rehnquist trades off that nonexistent possibility against a persistent practice, the practice being that there are a lot of jurisdictions, there are a lot of circumstances, there is a long history of 150 years of prosecutors saying, “We don’t want a black man on this jury. We don’t want a black woman on this jury. We want an all-white jury.” Deleware Sen. Joe Biden speaking against the Nomination of William H. Rehnquist to be Chief Justice of the United States Supreme Court. 132 Cong. Rec S 12467.

 

[15].        Professor Kim Forde-Mazrui proposes a jury selection procedure he terms “jural districting.” An implementing jurisdiction would divide a jury district into twelve sub-districts, designed around “communities of interest,” and would require juries to contain jurors from every sub-district. Such a procedure should satisfy constitutional objections and would create a broadly diverse juries representing a variety of communities, including communities identifiable by race, ethnicity, religion, political affiliation, and socioeconomic status. Kim Forde-Mazrui,  Jural Districting: Selecting Impartial Juries Through Community Representation,  52 VAND. L. Rev. 353, 354 (1999).

[16].        In the 1980s and 1990s, the United States District Court for the Eastern District of Michigan (Eastern District) sought to correct significant, though likely not constitutionally sanctioned, differences between the racial composition of the general population and jury venires empanelled in the Eastern District. In an attempt to do more than was constitutionally required to achieve a fair cross section of the community on its juries, the Eastern District implemented a “balancing” system that removed individuals from certain groups, particularly overrepresented Whites, permitting increased representation for previously underrepresented groups. Ultimately, the Sixth Circuit Court of Appeals struck down this system in United States v. Ovalle, 136 F.3d 1092 (6th Cir. 1998).

  1. “In 1940, William A. Vinson, Sam W. Davis, and Harry W. Freeman presented a novel legal argument to the Supreme Court of the United States on behalf of their indigent eighteen-year-old African-American client convicted of rape. They argued that juries and grand juries should accurately reflect the demographic makeup of the communities from which they are chosen.” The Supreme Court, unanimously agreed, holding that “juries as instruments of public justice … should] be a body truly representative of the community.” Robert C. Walters, , Michael D. Marrin, & Mark Curriden.  Jury of Our Peers: An Unfulfilled Constitutional Promise  58 SMU L. Rev. 319 (2005).

 

[18].            “The trial of all crimes, except in Cases of Impeachment, shall be by Jury; and such trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed.”  U.S. Const. art. III, § 2, cl. 3.

[19].        “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.”  U.S. Const. amend. VI.
[20].        Lisa E. Alexander, Vicinage, Venue, and Community Cross-Section: Obstacles to a State Defendant’s Right to Trial by a Representative Jury, 19 Hastings Const. L.Q. 261 (1991).

 

[21].        Am. Bar. Ass’n, How Courts Work, (last visited Aug. 12, 2015) http://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/jurypool.html.

 

[22].        Id.

 

[23].        Id.

[24].        Id.

 

[25].        Lee Alexander, Obstacles to a State Defendant’s Right to Trial by a Representative Jury (1991).

 

[26].        Id.

[27].        Id.

[28].        Drew L. Kershen, Vicinage, 29.4 OKLA. L. REV., 814-815 (1976).

[29].        Id. Henry was delivering a speech attacking the Federal Constitution for not sufficiently guaranteeing a right to trial by jury of the vicinage.

[30].        Kershen, Vicinage,  1976, at 833.
[31].        French for “to speak the truth.” Voir dire is the process through which potential jurors from the venire are questioned by either the judge or a lawyer to determine their suitability for jury service.
[32].        Kershen, Vicinage, 1976, at 834.

 

[33].        Howe, Juries as Judges in Criminal Law, 52 Harv. L. Rev. 582 (1939).

 

[34].        Unanimous jury verdicts in criminal trials are required in all but two states. Currently both Oregon and Louisiana allow convictions on 10-2 or 11-1 margins, only requiring unanimous verdicts in capital cases.

[35].        Kershen, Vicinage, 1976, at 839.

 

[36].        Supra note 11.

[37].        On December 10, 1963, while still the leading spokesman for the Nation of Islam, Malcolm X gave a speech at a rally in Detroit, Michigan. That speech outlined his basic black nationalist philosophy and established him as a major critic of the civil rights movement. Malcolm X. Message to the Grassroots (1963). http://www.blackpast.org/1963-malcolm-x-message-grassroots#sthash.P3pqsOSr.dpuf (last visited Nov. 11, 2015).

 

[38].        Supra note 27.

 

[39].        When it comes to citizenship, the ability to sit on a jury ranks with freedom of speech, freedom of religion, and the right to vote. Indeed, one may argue that jury service is more important than the right to vote. Mark Curriden. Jury of Our Peers: An Unfulfilled Constitutional Promise  58 SMU L. Rev. 319, 321 (2005).

 

[40].        Glasser v. United States, 315 U.S. 60, 84 (1942).

 

[41].        Singer v. United States, 380 U.S. 24, 31(1965).

 

[42].      Taylor v. Louisiana, 419 U.S. 522, 530 (1975).

 

[43].        Sanjay K. Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, 13 U. Pa. J. Const. L. 931, 934 (2011).

 

[44].        W]omen were not included in the panel of grand and petit jurors in the Southern District of California where the indictment was returned and the trial had; that they were intentionally and systematically excluded from the panel.”  (Justice Douglass in  Ballard v. United States, 329 U.S. 187)

 

[45].        Taylor v. Louisiana, 419 U.S. 522, 530 (1975).

 

[46].        Ballard v. United States, 329 U.S. 187 (1946)

 

[47].        Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, at 944 (quoting Taylor v. Louisiana, 419 U.S. 522 ( 1975).

 

[48].        Duren v. Missouri, 439 U.S. 357 (1979).

 

[49].      Chhablani, Re-Framing the ‘Fair Cross-Section’ Requirement, at  944.

[50].         The Bill of Rights (Sixth Amendment included) contains obligations that are placed upon the federal government, not the State governments.  Unless the Supreme Court determines that a right is a fundamental right and applicable to the states via the Fourteenth Amendment, the specific liberty interest involved is not germane to state prosecutions. It was not until 1968 in Duncan v. Louisiana that the Sixth Amendment right to trial by jury was made applicable to the states. In order to satisfy the Sixth Amendment, courts and states must take steps to ensure that their jury selection system provides the defendant with a trial before an impartial jury. Any modifications to the jury selection process must not be discriminatory as this would violate the equal protection clause. Proposals of jury reform that intend to increase the number of black jurors and reduce the number of white jurors must be constructed so as not to be unconstitutionally discriminatory. The system being proposed here would not violate the Constitution because it simply shrinks the vicinage by applying a narrower definition of community.

[51].        US CENSUS BUREAU, CITY OF FERGUSON, MISSOURI 2010 CENSUS INFORMATION, (2010), http://www.fergusoncity.com/123/Demographic-Information, (last visited May 21, 2014).

 

[52].      Tanya E. Coke, Lady Justice May Be Blind, But Is She A Soul Sister? Race-Neutrality And The Ideal Of Representative Juries, 69 N.Y.U. L. Rev. 327, 362-363 (1994).

 

[53].        Taylor v. Louisiana, 419 U.S. 522, 530(1975).

 

[54].        U.S. Department Of Justice, Federal Justice Statistics, (2010),

http://www.bjs.gov/content/pub/pdf/fjs10st.pdf ( last visitedMay 21, 2015).

 

[55].        Supra note 29 .

 

[56].        Jeffrey M. Jones, Urban Blacks in U.S. Have Little Confidence in Police, GALLUP, (Dec. 8, 2014), http://www.gallup.com/poll/179909/urban-blacks-little-confidence-police.aspx (last visited Nov. 11, 2015).

 

[57].        Lauren Fox, There’s a Huge Racial Gap in Trust of Police. Can Congress Fix It?, The Atlantic (Dec. 8, 2014), http://www.theatlantic.com/politics/archive/2014/12/theres-a-huge-racial-gap-in-trust-of-police-can-congress-fix-it/446184/ (last visited May 21, 2015).

 

[58].        Jeffrey M. Jones, Urban Blacks in U.S. Have Little Confidence in Police, GALLUP, (Dec. 8, 2014), http://www.gallup.com/poll/179909/urban-blacks-little-confidence-police.aspx (last visited May 21, 2015).

 

[59].        U.S. Census Bureau. https://www.census.gov/newsroom/releases/archives/2010_census/cb12-50.html (last visited May 21, 2015).

 

[60].        ‘Police violence’ is here being used as a catch-all phrase for police torture, brutality, violence, coercion, killings, and the like.

 

[61].      Ryan Gabrielson, Ryann Grochowski Jones, & Eric Sagara, Deadly Force, in Black and White, PROPUBLICA, (Oct. 10, 2014), http://www.propublica.org/article/deadly-force-in-black-and-white,  (last visited May 21, 2015).

 

[62].        Trial begins for Charlotte police officer accused of shooting an unarmed man, THE GUARDIAN, (Jul. 20, 2015), http://www.theguardian.com/us-news/2015/jul/20/jury-trial-charlotte-officer-shooting-unarmed (last visited Aug. 11, 2015).

 

  1. During the process of jury selection, the parties are given the opportunity to strike an unlimited number of prospective jurors for cause. A “for cause” challenge will be granted if the judge finds that the party has articulated a good reason that the juror should not serve, such as an inability to be impartial or a prior relationship with the defendant, the defense attorney, the prosecutor, the judge, or one of the witnesses. Each side is also given a set number of peremptory challenges, which can be used to strike a prospective juror for any reason or no reason at all, as long as the reason for striking the prospective juror is not based on the individual’s race or gender. Cynthia Lee. A New Approach to Voir Dire on Racial Bias, 5 U.C. Irvine L. Rev. 843, 848 (2015).

 

[64].        Although, low-income communities of color have both a heightened interest in being on juries, and evading jury duty. The former, because the majority of people prosecuted are people who look like them and they need to represent the interests of their community, and the latter, because many, if not most of them are not in comfortable enough financial positions to take time off or get child care for the amount of time required to serve on a jury.

 

[65].        Recent studies have found that in urban jurisdictions, 20 percent or more of the citizenry who receive jury summons fail to report to the courthouse for potential service. Robert G. Boatright, Why Citizens Don’t Respond to Jury Summonses and What Courts Can Do About It, Judicature 82, No. 4 (Jan,-Feb. 1999): 156-164.

 

 

[66].        In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court determined that it is constitutionally violative to exclude people from juries for reasons based only on their race or gender. However, race can be one of many reasons and during voir dire, questions are asked to expose bias in jurors.

 

[67].        The Black Youth Project. Report: The Policing of Black Communities and Young People of Color. http://blackyouthproject.com/byp-memo-the-policing-of-black-communities-and-young-people-of-color/. (Last visited Nov. 11, 2015).

 

David Kennedy. Black communities: overpoliced for petty crimes, ignored for major ones,  LA TIMES, (Apr. 10, 2015), http://www.latimes.com/opinion/bookclub/la-reading-los-angeles-kennedy-ghettoside-20150404-story.html,  (last visited  Aug. 11, 2015)

 

“Overpoliced & Underprotected”: In Michael Brown Killing, Neglect of Black Communities Laid Bare, DEMOCRACY NOW, (Aug, 19, 2014), http://www.democracynow.org/2014/8/19/over_policed_underprotected_in_michael_brown, (last visited   Aug. 11, 2015).

 

[68].      Doug Mataconis, Americans Have Almost Totally Lost Faith in Government, OUTSIDE THE BELTWAY, (Jul. 2, 2014). http://www.outsidethebeltway.com/americans-have-almost-totally-lost-faith-in-government/,  (last visited Aug. 11, 2015).

 

[69].      Paul D. Butler, Race-Based Jury Nullification: Case-In-Chief, 30 J. Marshall L. Rev. 911, 912-22 (1997). Shannon Heffernan, The Secret Power of Jury Nullification,  LIFE OF THE LAW, (Jun. 24, 2014),  http://www.lifeofthelaw.org/2014/06/jury-nullification/, (last visited  Aug. 11, 2015).

 

[70].        See U.S. v. Thomas, 116 F.3d 606 (2d Cir. 1997).

On Human Rights; an interview

Conducted at the US Human Rights Network December 2011 Conference in Los Angeles

1.  How, specifically, are Human Rights defined and shaped by social movements today, (i.e. Rights of Indigenous, Rights of Mother Earth)?

NAJI: I dont think that Human Rights (HR) are defined and shaped by social movements; I don’t agree with that assessment. I think that Human Rights (with regard to international law, etc.) are a co-optation of peoples struggles. I don’t necessarily think that that is a bad thing… it just is what it is. I think social movements may provide the inspiration or the impetus, but once the government or NGOs take it on, ultimately, they are the ones that shape and define it. I conclude this from my Western-centered vantage point, perhaps social movements elsewhere have had more direct influence, but in the US, I think it has been somewhat minimal.

I’m not familiar with the struggles that led to the two examples you mentioned, however, I think that there were genuine peoples movements that pushed the issue to the fore. Examples of peoples movements effecting change with regards to Human Rights, are most likely going to be found outside of the US. It is my opinion, that the claimed successes of peoples movements in the US are somewhat exaggerated. However, the (white) populist struggles of the early 20th century were exceptional. These struggles led to a lot of gains as far as labor and workers rights are concerned. The Women’s Lib movements and suffrage movements were also successful. White movements [tend] succeed; Black ones [usually] only give the illusion of success.  It doesn’t take long for the same issues that they address to morph into some other related form of oppression or discrimination.  That’s why Black people have been fighting for the same things [for the most part] since slavery ended.

2.  Briefly what brought about the social movements in this country that led to the adoption of civil and political rights.  Why was that revolutionary in the context of the Original American Constitution and why was important for those in power in this country to allow Civil and Political rights and not Economic, Social, and Cultural Rights?

NAJI: The creation of the UN (1945) and the writing of the Universal Declaration of Human Rights (1948), was a response to the end of World War II (1945). At that time, because of the Holocaust and other atrocities against various European peoples, the world wanted to ensure that nothing like that ever happened again. However, if I’m not mistaken, input from Black and Brown countries did directly influenced the process. Human Rights then, developed as means for the European powers to exercise moral superiority over others. The split between Civil and Political Rights and Economic Social and Cultural Rights came as a result of the burgeoning Cold War and a power struggle between Communist Russia (proponent of ESCR) and the United States (proponent of CPR). Its really not my understanding that the International Covenant of Civil and Political Rights (ICCPR) was particularly revolutionary. With regards to the ICCPR and the Constitution, one of the reasons that the US got behind it was because it is inherently aligned with the Constitution; much more so than the International Covenant of Economic Social and Cultural Rights which the US has yet to sign.

3.  What are the benefits of a human rights paradigm? i.e. proactive and positive rights, state obligations?

NAJI: In theory, I think that the benefits have a tremendous upside. If smaller countries can acquire more influence and power within the UN. For the US specifically, because the US promotes itself as the beacon of liberty and moral superiority in the world, it is a means to hold them accountable for their proclamations. The civil rights struggles didnt gain traction until the abuses perpetrated against African-Americass became international knowledge and it exposed the hypocrisy of this country. I’m not aware of any cases where international HR has been used in court to anyones advantage. Creating a culture of positive rights would be a welcomed change, but in this country, you have a significant push towards cutting back social welfare programs.

4.  How is the HR framework elitist, and why even still should social movements adopt it?

NAJI: It is elitest because of its use and cooptation by former colonial countries. Most often, rather than being a tool for the people to use to protect themselves from government repression and negligence, it is used by more powerful (Western or NATO) countries against their former colonial subjects or enemies. Nevertheless, it should still be used because it has potential. Also, we dont have much else, unless we’re ready to kill and be killed. The state exercises power and authority because of its monopoly on violence. So unless groups are prepared to challenge that monopoly, it is only prudent to try to use existing channels to our advantage.

5.  Why is it important from a solidarity standpoint for social movements in this country to adopt HR in their work from the perspectives of social movements around the world?

NAJI: Because, the world needs to see that the same struggles going on around the world are going on within the US. The US has the same unresolved problems that it claims to be going around the world to solve and admonishing other countries about. The hypocrisy of the US government must be made clear to everyone, including those within the US.

6.  Why do HR mean something substantive for real people?

NAJI: Because the majority of the issues speak to the basic needs of people, that’s why they’re called “Human” rights, it is really indicative of the miserable state of the world and so-called civilization. HR are bare minimum standards for human equity and dignity; it shouldn’t even be a question. The rights don’t lack substance, the application of those rights lacks substance. Its the fear that we could go through all this trouble, but not receive the benefit. But that doesn’t mean the human rights struggle lacks substance, it means the legal and judicial system do; but thats another issue.’

ORIGINS OF ISLAMIC CIVILIZATION

Naji Mujahid
Professor El-Khawas
World Civilizations 1
April 6, 2010

ORIGINS OF ISLAMIC CIVILIZATION

INTRODUCTION

In the name of Allah, the Compassionate, the Merciful. All praise is for Allah, the ‘Lord’ of the Worlds. The Compassionate, the Merciful. Master of the Day of Judgment. O’Allah! You Alone we worship and You Alone we call on for help. O’Allah! Guide us to The Right Way. The Way of those whom You have favored; not of those who have earned Your wrath, or of those who have lost The Way. [Surah (1) Al-Fatihah][1]

Islam[2] literally means submission and the connotation of it is submission to the will of God, hereafter referred to as Allah[3], the Creator of all[4]. Therefore, to discuss the Islamic Civilization it is necessary to understand the depth of what this means to Muslims (which literally means those who submit). Belief in Islam as a way of life makes the civilization based on this precept unique in that without this core belief, the civilization does not exist because it is not based on the development of technology, art, literature, economics, or any other marker of human progress. However, Islam, as a way of life envelopes and influences the progression of humanity in these other respects. For Muslims, there is no civilization without Islam and anything before or after it is considered jahilliyah[5].

To say that all else is jahilliyah might seem pretentious, but Muslims do not consider that there was ever a time when Islam didn’t exist. As mentioned, Islam means submission to Allah’s will, to Allah’s divine order as the creator. Therefore, the submission of nature and all things to its natural order is Islam. This means that the orbits of the celestial bodies, the seasons, the reproductive processes of flora and fauna, and the laws of physics are all examples of Islam. In this context Islam exists even in the absence of human progress, or human beings for that matter.

For their part, human beings are forced by natural law to submit to Allah’s order in matters of anatomy and physics (e.g., humans cannot levitate, survive without water or oxygen, or maintain their physical bodies forever), but it is their disposition of free will[6] that ultimately determines their level of civilization. In other words, the Muslim barometer for civilization is their adherence to Islam as a way of life; anything other than this is uncivilized.

ISLAM

Today the unbelievers have given up all their hope of vanquishing your religion. Have no fear of them, fear Me. Today I have perfected your religion for you, completed my favor upon you and approved Al-Islam as a Deen (way of life for you). [Surah (5) Al-Ma’idah, v. 3]

Islam does not fit within the narrow English definition of the word religion and it is best described with the Arabic word deen, which I will use within this paper. Deen can be translated to mean a complete way of life. As such, Islam is not a dogmatic canon of beliefs, but it encompasses the spiritual, social, economic, and political spheres of human existence. “Islam cannot fulfill its role except by taking a concrete role in society, rather, in a nation; for man does not listen, especially in this age, to an abstract theory which is not seen materialized in a living society” (Qutb 1978, 11). Islam informs the proper mode of interaction that humans should have with Allah, each other, and the world around them. Knowledge of Islam is best derived from Allah in the form of the Holy Qur’an[7] and the Hadith[8]. Beyond that Muslims can be informed through the fatawa (plural for fatwa[9]) of learned scholars and through their personal processes of ijtihad[10].

Muslims believe that the Arabic Qur’an is the direct and infallible word of Allah dictated to His final Prophet, Muhammad ibn Abdullah beginning in the year 610 C.E. Before going further it should be clarified that Muslims do not consider Muhammad (PBUH)[11] to have been the first Prophet, only the last; the Seal. The first would have been Adam who is believed to have been the first man. This idea of Adam as the first Homo Sapien Sapiens is echoed in Judeo-Christian mythology. In fact, Muslims have a common belief with their Christian and Jewish counterparts in many of the same prophets and stories. Collectively, they have been referred to as the three Abrahamic faiths because of the common belief in Abraham[12] as a religious patriarch.

The core of Islam is Tawheed[13] (Allah’s unique one-ness) and this is the essence of the divine revelations and subsequent teachings of all of these divine Prophets and Messengers. Our focus in this work will be Islam as explained by, Muhammad (PBUH),because he laid the foundation for the emergence of the Islamic civilization. “There can be no doubt that the essence of Islamic Civilization is Islam; or that the essence of Islam is Tawheed, the act of affirming Allah to be the One Absolute, transcendent creator, Lord and Master of all that is.” (al-Faruqi 1986, 73)

MUHAMMAD OF ARABIA

These are the revelations of Allah; We recite them to you in truth. Surely you, O Muhammad, are one of Our Messengers. [Surah (2) Al-Baqarah, v. 252]

To fully appreciate and adequately assess progress you have to have a reference point. You must know where something came from to know how far it has come. Similarly, to understand Muhammad (PBUH) and the revolution that he led in Arabia towards an Islamic Civilization, we must know the environment that he came out of in Mecca. He was born into the tribe of Quraysh as part of the Banu Hashim clan and was orphaned in his infancy. The Quraysh tribe traces its lineage back to Ishmael[14] (Ismail) the first born son of Abraham and at the time of Muhammad’s birth in 570 CE they were the most powerful tribe. The clan of Banu Hashim (sometimes called Hashimites) was a prestigious one charged with the responsibility of caring for the pilgrims as they arrived to Mecca annually to visit the Ka’ba[15]. The Ka’ba was home to scores of idols that were visited by hundreds of pilgrims and this was a source of revenue and power for Mecca’s elite. Given the monotheistic teachings of Islam, this contradiction would become a major source of contention.

REVELATION and RESPONSE

Ha M’im. This Book is revealed from Allah, the All-Mighty, the All-Wise. Surely in the heavens and the earth there are signs for the true believers. and in your own creation and that of animals which are scattered through the earth, there are signs for those who are firm in faith, and in the alternation of night and day, in the sustenance that Allah sends down from heaven with which He revives the earth after its death and in the changing of the winds, there are signs for those who use their common sense. These are the revelations of Allah, which We are reciting to you in all truth. Then, in what report will they believe if not that of Allah and His revelations? [Surah (45) AL-Jathiya, v. 1-6]

Muhammad (PBUH) grew up, under very humble conditions, as an orphan under the care of his uncle and, despite being illiterate, he became a successful merchant with a reputation for his honesty and trustworthiness[16] (Khan 1996, 61-62). He was always a very spiritual person and would regularly retreat from the world and spend days and nights in a cave (Mount Hira) contemplating on the natural and supernatural. On one such night, it is said that he was visited by the angel Jibril[17] who revealed to him the first words[18] of the Qur’an, commanding this illiterate merchant to read and recite. Following this, he received further revelations, periodically at auspicious moments, over the course of 23 years[19], and together they were compiled as the Qur’an (Haykal 1995, 73).

After this initial contact, he was very disturbed, he thought that he was going crazy and likened himself to the local soothsayers that he didn’t care for. Seeking comfort from his wife, Khadijah, he went home. She affirmed the righteousness and sincerity of his character and assured him that he could not be going crazy. The next day, she went to speak with her cousin Waraqa, a Christian, and after hearing what happened he declared “Muhammad must be the Prophet of this nation. Tell him he must be firm.” (Haykal 1995, 77) Not too long after this, Waraqah and Muhammad (PBUH) happened upon one another at the Ka’ba and Waraqah questioned him about his experience.  After listening he then exclaimed that,

“By Him who dominates my soul I swear that you are the Prophet of this nation. The great spirit that has come to Moses has now come to you. You will be denied and you will be hurt. You will be abused and you will be pursued. If I should ever live to see that day, I will help the cause of God. God knows that I will.” (Haykal 1995, 78)

He could not have been more right. However, Muhammad (PBUH) was not alone. Along with his wife, his friend, Abu Bakr[20], and young cousin, Ali ibn Abu Talib[21], were the first to accept this new faith by testifying that there was no god except for Allah and that Muhammad (PBUH) is His Messenger[22]. (Khan 1996, 73-74)

At this point, it is imperative to view Muhammad (PBUH) not only as a preacher, but as an organizer and a revolutionary. His teachings of monotheism shook the foundations of the idolatry that pervaded Mecca and benefited the ruling class (and the populace in general) politically and economically. As Muhammad (PBUH) shouldered the responsibility of his Prophethood, he experienced the polarizing effect of any revolutionary at any time or place in history. Some people joined with him with sincerity and conviction and others joined against him with vehement hostility.

For 13 years this hostility took various forms. In the beginning, the Quraysh ignored him and when this didn’t work they tried to compromise and reason with him, but for Muhammad (PBUH), when truth is set against falsehood, there could be no compromise. They tried to bribe him with money, women, and power, but to no avail (Haykal 1995, 96-97). When diplomacy failed, they turned to slander, setting the equivalent of a propaganda machine against him. He was ridiculed, mocked, and in some instances assaulted (Haykal 1995, 116-118). His followers faced the same and some were tortured or killed. Muhammad (PBUH) could not easily be killed because he came from a prestigious and influential tribe and clan. Therefore, his assassination would invite retribution on the clan/tribe of the assassin; in the worst case scenario it could ignite a civil war of killings and responses in kind. With assassination off of the table for the moment, they resorted to a boycott that was designed to starve the Muslims into submission.

HIJRAH

Those who believed (embraced Islam), migrated and made Jihad (exerted their utmost struggle) with their wealth and their persons in the cause of Allah; as well as those who gave them asylum and help, are indeed the protecting friends of one another. [Surah (8) Al-Anfal, v. 72]

It was during this time that Muhammad (PBUH) sent a portion of his followers into exile in Abyssinia within the Christian kingdom of King Negus who was known to be a righteous king. When contacted by the Quraysh in regards to the fugitives, he refused to extradite them and told them that they could stay as long as they like (Haykal 1995, 97-101). Later still, as the oppression intensified, a decision to emigrate was made. Muhammad (PBUH) formed an alliance with some Muslim converts[23] from Medina, a city to the northwest, and they signed a treaty that stipulated their pledge to protect him, among other things (al-Mubarakpuri 1996, 154-158). Upon hearing of his imminent sojourn, the Quraysh decided that they had to stop him and conspired to kill him. They figured that if they formed a party than all would be equally responsible for his death and, thus, no one could be sought for retribution. The assassination failed as Ali risked his life to pose as a sleeping Muhammad (PBUH). Meanwhile, Abu-Bakr and Muhammad (PBUH) slipped out of Mecca and set out on the road less travelled to Medina (in fact, they took a detour south before heading north) (al-Mubarakpuri 1996, 168-170).

This mass emigration was known as the Hijrah and marks the beginning of the Islamic lunar calendar[24]. It is not the focus of this paper to explicate all of the formative years of Islam, but its humble beginnings should be understood. Once settled in Medina, the Muslims began to consolidate their power and influence and fought many battles against the Quraysh. Emissaries were sent throughout the Arabian Peninsula and beyond to the Byzantine[25] and Persian[26] empires inviting them to submit to Allah and accept Muhammad (PBUH) as His Prophet. Needless to say, they denied the invitation, Heraclius dismissed it and Khosrau called for Muhammad’s head. However, as will be discussed later, both empires were enveloped by Islam eventually (Haykal 1995, 374-376).

AFTER MUHAMMAD

And Muhammad is but a Messenger. Surely, all Messengers have passed away before him. Would you recant if he dies or be killed. And he who recants shall do no harm to Allah, and Allah will surely reward the grateful. [Surah (3) A’lay Imran, v. 144]

Ten years after the Hijrah, the Muslims returned to a subdued Mecca victorious. It would not be long before the Prophet Muhammad (PBUH) passed on to the next stage of existence at the age of 63. This was a very ominous time for the Muslims and the most prominent issue was succession, who would lead? Notwithstanding the fact that Islam is not a monarchy, he had no living sons[27]. Some traditions state that Muhammad (PBUH) had made clear that his cousin, son-in-law, confidant, and first student, Ali, was to be his successor (Tabataba’i and Campbell 2000, 85)[28], but while Ali was planning the funeral and grieving with their family, a hasty conference and election was held that moved the leadership to Abu Bakr. Initially, Ali refused to pledge his allegiance to Abu Bakr, but after a civil war ensued between the Muslims and the apostates, Ali acquiesced for the sake of unity (Chirri 1996, 186-190). This set in motion successive leadership known in Islam to be the Khulafah Rashidoon (the four Rightly Guided Caliphs[29]), Abu Bakr, Umar ibn al-Khattab, Uthman, and Ali ibn Abu Talib respectively.

The reign of the Khulafah Rashidoon ended with the martyrdom of Ali in 661 CE/39 AH. This also ended what could be considered a golden age in Islam. Never again would there be a leader that was one of the Messenger’s companions. By this time, a mere 50 years since Muhammad’s Prophethood began, Islam had spread eastward to Afghanistan, Westward along the north coast of Africa to Tripoli, and northward to the Armenian region between the Black and Caspian Seas (al-Faruqi 1986, 212). Following the demise of Ali, his son (and Muhammad’s grandson), Hassan, assumed leadership with the support of his father’s followers.  However, his reign was brief before his power was usurped by Muawiyah (Tabataba’i and Campbell 2000, 128), the Muslim Governor of Egypt who established the Ummayad Dynasty (Jordan 2002, 67). It is ironic to note that concomitant to the unprecedented spread of Islam during this time, the descendents of Muhammad’s greatest enemy in Mecca, Abu Sufyan, had secured power and encouraged a visceral hatred against Muhammad’s direct descendents[30].

GOVERNANCE in ISLAM

O believers! Obey Allah, obey the Messenger and those charged with authority among you. Should you have a dispute in anything, refer it to Allah and His Messenger, if you truly believe in Allah and the Last Day. This course of action will be better and more suitable. [Surah (4) An-Nisa v.59]

This dynasty that was established and perpetrated by the Ummayads ran counter to the spirit of Islam. Islam does not condone monarchal governments, “The form of government of the Ummayads and the Abbasids, and the political and administrative policies they pursued, were anti-Islamic. The form of government was thoroughly perverted by being transformed into a monarchy…..For the most part, this non-Islamic form of government has persisted to the present day” (Khomeini 1981, 47-48). Government in Islam is predicated on the system of Khilafah in which case the Khalif is elected democratically, “Rule by inheritance is forbidden in Islam, for the heir of the ruler would be imposed on the people without their will” (Chirri 1996, 524).

As with anything relevant to Islam, the Prophet was a paragon of propriety. He was at once a father, a husband, a neighbor, an organizer, a general, a judge, a diplomat, a politician, and an executive (and even more). Therefore, to see how the Islamic State is to be governed, one must look at governmental organization under Muhammad (PBUH).

Acceptance of Islam is the basis of the Islamic society and this is one of the first lessons that can be gleaned from the precedence set in Medina, a city that was plagued by civil war until belief in Islam united the people. This revolution in behavior is all the more meaningful in consideration of the nature of the Arabs at this time; unity was drawn on tribal lines. However, with unity established on the lines of Islam, the responsibilities and rights of the people, of the Ummah[31], were then codified in a constitution (Siddiqui 1988, 4-10).  Islam then spread throughout the Arabian Peninsula as a religious and political ideology and within 10 years the majority of Arabia was ruled by a centralized government in Medina. “Never before had the whole Arabian Peninsula been ruled, controlled, and administered by a central authority” and in Muhammad’s hands were “concentrated all powers, legislative, executive, military, and judicial.” (Siddiqui 1988, 210)

Though Muhammad (PBUH) wielded great power, he was not a tyrant[32] and there were many positions within the government over which he presided. They are outlined in great detail within Dr. Muhammad Siddiqui’s work, Organization of Government Under the Holy Prophet.  One such position is that of Commander-in-Chief of the military apparatus; in this position he had the power to choose/dismiss his commanders. It was with great skill that Muhammad (PBUH) developed and led the army. Had it not been for a strong military force, the Muslims would not have survived themselves, let alone expand their influence. As for the civil administration, there are two kinds, the central administration and the provincial administration.

The central government was comprised of deputies, advisors, secretaries, envoys/ambassadors, commissioners, and miscellaneous petty officials.  Additionally, there were official poets/orators who functioned in a capacity somewhat akin to the media or propagandists. “Since the Arabs were a ‘people of the tongue’, who took extreme pride in their language, their poets and orators commanded great respect and prestige in their society.  They could create, mold, and shape opinions.” (Siddiqui 1988, 239). The provincial government on the other hand was comprised of governors, various administrators, representatives of the people (tribal chiefs), judges, and market administrators; “The Prophet paid personal attention to the reform the corrupt commercial and mercantile practices” (Siddiqui 1988, 275).

Towards that end, he instituted a financial system particular to the Islamic State. As Abul A’la Maududi explains, the financial system of Islam is founded on three basic principles. First, that it should be reflective of natural order of things and consistent with human nature. Second, in recognition that external regulation is insufficient, a strict morality should be encouraged as an internal regulation “so that evil in the mind of man can be suppressed at its root” (Maududi 1994, 29). The third point is that coercion by the government should only be done as a last resort.

The government depends on charitable contributions, zakat[33], jizyah[34], and other taxes; of course this required a government post of tax-collectors and bookkeepers. The government also maintains a system of land distribution that is too complex for elaboration, but the point of it is too benefit the needy and make efficient use of land-holding within the state for the good of all (Siddiqui 1988, 335-344). Another unique facet of the economic system is the strict outlawing of usury as an accursed financial practice, “Allah has laid His curse on usury and blessed charity to prosper” [Surah (3) A’lay Imran v. 276].

The economic system itself has elements of capitalism and socialism. In fact, it is somewhat of a merger of the two. There is free trade and during the time of the Prophet all tariffs on imports and exports were abolished. There is also private ownership and people are free to accumulate wealth provided that the wealth is earned by acceptable means and is spent in acceptable ways. Therefore, the temper that is put on these capitalistic elements, are restrictive moral codes, some of them encouraged and others enforced. This gives way to the socialist aspects, namely that the rights of the community outweigh those of the individual. Accumulated excess wealth is encouraged to be redistributed back to the central treasury to fund social welfare programs, etc. Needless to say, with the socio-economic system hinging on adherence to a moral code, religious instruction was a big deal and there were many posts to be filled as teachers, preachers, Imams[35], and muezzins[36]. There was also a specific post for the organizers of the annual Hajj.

SPREAD of ISLAM

When there comes the help of Allah and the victory, you see the people entering Allah’s religion (Islam) in multitudes. So glorify your Lord with His praises, and pray for His forgiveness: surely He is ever ready to accept repentance. [Surah (110) An-Nasr]

And so it was that Islam began in the Arabian Peninsula. It is a considerable miracle in and of itself that these mean and isolated people would bring light to the rest of the world.  Indeed, only 30 years after the Prophet’s death did Islam replace the Byzantine and Persian empires and spread all the way east to Afghanistan, west along the northern coast of Africa to Tunisia, and north to Armenia.  By 750 AD it had gone even further west to Morocco and the Iberian Peninsula (where Islam ruled from 711-1492) and eastward into India.  Over the next 500 years[37], Islam spread to China, Malaysia, Indonesia, the Philippines, and all over the Sahel, Maghreb, and Horn of Africa (al-Faruqi 1986, 222-228). The spread of Islam is sometimes attributed to the sword, however, Tim Wallace-Murphy says,

“while these vast territorial gains were undoubtedly made by the sword, the spread of Islam as a religion was not. The newly subject peoples who became the followers of Islam in such vast numbers were attracted to that religion by its natural purity and the relevance of its mission to people’s daily lives. Forcible conversion was against all the fundamental principles of choice that Islam espoused.” (Wallace-Murphy 2006)

Furthermore, it is stated in the Qur’an that,

There is no compulsion in religion. True guidance has been made clearly distinct from error. Therefore, whoever renounces Taghut[38] and believes in Allah has grasped the firm hand-hold that will never break. Allah, Whose hand-hold you have grasped, hears all and knows all.  [The Holy Qur’an, Al-Baqarah (2), v. 256]

During this same time period there were many developments in various fields, science and art in particular. The Holy Qur’an itself, served as a catalyst for much of the intellectual and scientific developments. Within it, Muslims are exhorted towards learning as a form of devotion, partly because studying Allah’s creation increases one’s reverence for its creator. “Knowledge of nature and knowledge of religion were inseparable twins, complementing and supporting each other (al-Faruqi 1986, 325)”. This is in stark contrast to some western philosophies that prefer to contrast god and science. Another way the Qur’an spurred learning was simply because literacy was necessary to read it and, as a Muslim, reading the Qur’an is imperative. The spread of Islam and Arabic along with it drove Arabic to become the lingua franca of this vast region.

One of the great developments was scientific medicine. Though the Muslims didn’t invent it, they made great strides in further cultivating it. They began by learning from Christian physicians who had fled the Byzantines and translating their books. Soon they were building hospitals and medical schools. They developed the sciences of surgery, psychiatry, pharmacology, botany, and chemistry. Physics also became highly developed and the Muslims turned out several meaningful inventions such as the compass, astrolabe, clock pendulum and methods of distillation. They’re most influential contributions to the field of mathematics were the inventions of the decimal and the zero. Study of astronomy produced the theory that the heavenly bodies were moving orderly around the sun, that the earth was round, and a measuring of the Earth by creating demarcations of latitude and longitude. They also became excellent cartographers. (al-Faruqi 1986, 323-334) Beyond the hard sciences, there were very significant contributions made to world art. Most notable of these, is the art of calligraphy and beautiful architecture all over the world.

CULTURE IN ISLAM

Now, special mercy is assigned to those who follow the Messenger, the unlettered Prophet (Muhammad) – whom they shall find described in the Torah and the Gospel. Who enjoins them what is good and forbids what is evil; makes pure things Halal (lawful) for them and impure things Haram (unlawful); relieves them from their heavy burdens and from the yokes that were around their necks. Therefore, those who believe in him, honor him, help him, and follow the Light which is sent down with him, will be the ones who will be successful in this life and the hereafter.[Surah (7) Al-A’raf, v. 157]

Art and architecture usually reflect culture and this can be seen in Islam. No matter who wrote the calligraphy, what part of the world they are from, you know it when you see it; same with the mosques, unless its in a very non-descript building operating as a mosque. However, thought there are many common threads within Muslim communities, you will find that the culture is as much heterogeneous as it is homogeneous. For instance, though it is customary for women to dress modestly (and men for that matter) and cover their heads, you will notice that in Iran the customary dress for a woman is in all black. In contrast women in Senegal wear very colorful clothes. The Prophet Muhammad (PBUH) once said that Islam did not come to change peoples’ culture, but to improve it. Therefore, in different parts of the world, people tend to develop an Islam that reflects the previous culture, adding the homogeneous aspects of Islam and ridding themselves of those practices that are unislamic.

Morality, as outlined in the Qur’an and Hadith, is a pervading aspect of the culture; “enjoining the right and forbidding the wrong” is a common phrase to be found within the text. “Islam establishes the values and morals which are ‘human’… it develops human characteristics progressively and guards against degeneration towards animalism” (Qutb 1978, 182). Modesty, honesty, forgiveness, selflessness (community needs factor first, rather than individual), helping the oppressed, fighting against oppression, and propagating the deen are all common themes. There are certain prohibitions that are one size fits all; no gambling, consumption of alcohol and pork, adultery/fornication, lewd behavior, slander/backbiting/gossip, lying, stealing, unjust killing, mistreatment of the orphan, and above all shirk[39]. These tenets are geared towards developing solid individuals which leads to strong families.

Family life is a critical component of the Ummah. As the individual goes, so goes the family, so goes the community, and so goes the Ummah. Everyone in the family has rights and responsibilities[40]; man, woman, and child. The family structure is patriarchal and polygamy (up to four wives) is permitted though rarely practiced. Polygamous marriage relationships are also predicated on the man’s ability to care for multiple wives and children equally as the man is expected to be the maintainer and provider for his family; a woman is expected to take the lead on child-rearing and managing the household[41].

This leads to the topic of gender relations. Islam was a revolution in many ways in Arabia (and later the world). It was a revolution of thought and practice; no less so was it a revolution for women’s rights. Women were raised from a position of sheer inferiority to one of equality. Islam declared that as human beings, all women and men are equal before Allah.  However, equality does not mean uniformity.

“No doubt, woman, as a human being, is born free like any other human being and in that capacity she has equal rights. But, woman is a human being with certain peculiarities, as man is a human being with certain other peculiarities. The traits of their characters are different and their mentality is distinct….Nature has purposely made them different and any action taken against the intention of nature would produce a disastrous result.” (Mutahhari unknown, 5)

This means that, though men and women are equal, they have been endowed with certain strengths and weaknesses that serve to complement each other so that the relationship between man and woman becomes one of interdependence. Niaz Shah argues that, “the intention of the Koran was to raise the status of women in society, not to relegate them to subordination.” (Shah 2006, 868)

ISLAM TODAY

O believers! Whoever among you renounce Islam, let them do so; soon Allah will replace them with others whom He will love and they will love Him, who will be humble towards the believers, mighty against the unbelievers, striving hard in the way of Allah, and will have no fear of reproach from any critic. Now this is the grace of Allah which He bestows on whom He pleases. Allah has boundless knowledge. Your real protecting friends are Allah, His Messenger, and the fellow believers – the ones who establish Salah, pay Zakah and bow down humbly before Allah. Whoever makes Allah, His Messenger and the fellow believers his protecting friends, must know that Allah’s party will surely be victorious. [Surah (5) Ma’idah, v. 54-56]

According to this doctrine, woman were given rights to inheritance, encouraged to become educated, treated equally before the law, and protected from transgression. However, as with many facets of the Islamic Civilization, idealist philosophy does not always translate into practice. This paper has been a study of the operation of Islam during the time of and directly following the life of the Prophet. In 2010, there are arguably no examples of this model. “The world of Islam has been parceled into small nation-states. These nation-states have been awarded a dubious ‘independence’ and a fraudulent ‘sovereignty’. In fact these nation-states are neither Muslim nor ‘Islamic’….. [they] are creations of imperialism and serve the purposes of imperialist powers.” (K. Siddiqui 1996, 141)

Many contemporary Muslim scholars consider the Islam to be in a state of global revival and that a clash of civilizations between the West and Islam is underway and will positively end with Islam asserting its dominance. A great scholar in Islam, Sayyid Qutb, who was executed by PM Gemal Abdel-Nasser in 1966 for his involvement in the Muslim Brotherhood wrote that because Islam “proclaims the freedom of man on the Earth from all authority except that of [Allah] it is confronted in every period of human history (Qutb 1978, 105-106). In that regard, Kalim Siddiqui wrote, “The victory of Islam was and must always be over its hostile environment” (K. Siddiqui 1996, 165) and it is the triumph of Islam over jahilliyah that is the hallmark of the Islamic Civilization.


 

WORKS CITED

Al-Asi, Muhammad H. “The Ascendant Qur’an: Realigning Man to the Divine Power Culture”. The Institute of Contemporary Islamic Thought; Vol.1. Canada and South Africa. 2008.

al-Faruqi, ismail R. al-Faruqi and Lois Lamya. “The Cultural Atlas of Islam”. Macmillan Publishing Company. New York. 1986.

al-Mubarakpuri, Saif-ur-Rahman. “The Sealed Nectar”. Dar-us-Salaam Publications. Riyadh. 1996.

Al-Qudsy, Dr. Diyaaud-deen. “True Muslim” HAQ Publishings. http://www.haqyayinlari.com/en/books/read/truemuslim/truemuslim05.htm (accessed November 12, 2012).

Chirri, Mohammad Jawad. The Brother of the Prophet (The Imam Ali). Qum: Ansariyan Publications, 1996.

Haykal, Muhammad Husayn. The Life of Muhammad. Delhi: Crescent Publishing Company, 1995.

Jordan, Michael. Islam: an illustrated history. London: Carlton Books, 2002.

Khan, Dr. Majid Ali. Muhammad the Final Messenger. Lahore: Sh. Muhammad Ashraf, 1996.

Khomeini, Imam. Islam and Revolution. Translated by Hamid Algar. Berkeley: Mizan Press, 1981.

Maududi, Sayyid Abul A’la. Economic System of Islam. Lahore: Islamic Publications, 1994.

Mutahhari, Ayatullah Murtada. Woman And Her Rights. Translated by M A Ansari. Tehran: Islamic Seminary Publications, unknown.

Qutb, Sayyid. Milestones. Beirut: The Holy Qur’an Publishing House, 1978.

Shah, Niaz A. “Women’s Human Rights in the Koran: An Interpretive Approach.” Human Rights Quarterly, 2006: 868-903.

Siddiqui, Kalim. In Pursuit of the Power of Islam. Edited by Zafar Bangash. London: The Open Press, 1996.

Siddiqui, Muhammad Yasin Mazhan. Organization and Government Under the Prophet. Lahore: Islamic Publications, 1988.

Tabataba’i, Mohammad Hosayn, and translated by R. Campbell. Islamic Teachings: An Overview. New York: Alavi Foundation, 2000.

Vallely, Paul. “How Islamic Invenbtors Changed the World.” The Independent, March 11, 2006: http://www.independent.co.uk/news/science/how-islamic-inventors-changed-the-world-469452.html.

Wallace-Murphy, Tim. What Islam Did For Us: Understanding Islam’s Contribution to Western Civilization. London: Watkins Publishing, 2006.

Young, Gayle. Fast-Growing Islam winning converts in the Western World. April 14, 1997. http://www.cnn.com/WORLD/9704/14/egypt.islam/ (accessed April 8, 2010).


[1] All quotes of The Holy Qu’ran will be taken from the English translation by F. Malik.

[2] Islam is supported by the “5 Pillars” of the religion. These are 1. Shahadah (the declaration of faith): to bear witness that there is no deity except for Allah. 2. Salah (prayer): five times a day at prescribed times. 3. Zakah (charity): 2.5% of one’s surplus wealth per year given to help the needy. 4. Saum (fasting): performed once a year during the month of Ramadan. 5. Hajj (pilgrimage): every Muslim should make the annual pilgrimage to Mecca at least once in their lifetime. Some consider Jihad to be the 6th Pillar. Jihad literally means striving/struggling. This can refer to an internal struggle or an external one. Either way, it connotes a struggle to solidify Islam.

[3] Allah: Usually considered the Arabic translation of the English word ‘God’. However, the Arabic word ‘Allah’ is unique in that it refers to only one specific thing. The word ‘God’, on the other hand, could mean different things to different people. ‘God’ also has a connotation of sex, its derivative being ‘God-ess’; Allah has no gender qualification.

[4] Al-Khaliq: This is one of the 99 characteristics attributed only to Allah and literally means, ‘The Creator’.

[5] Jahilliyah: Ignorance of Divine guidance. Sayyid Qutb refers to it as rebellion against Allah’s sovereignty on Earth.

[6] Free will: The ability of human beings to adhere to Allah’s code of conduct or follow their own fancies.

[7] Holy Qur’an: The Qur’an was delivered in Arabic, thus, that is the only language in which it is authentic. Translations into other languages are subject to human error. It is critical to note, that one of the main reasons The Qur’an was so amazing to the Arabs has to do with its “literary aesthetic” (as al-Faruqi puts it)’ meaning that they recognized the high quality of language usage and considered that it must have “divine authorship”.

[8] Hadith: The related traditions and sayings of the Prophet Muhammad (ex. So-and-so asked the Prophet such-and-such and he said… or the Prophet was once seen doing…..), also referred to as his Sunnah. As the Prophet was said to be a living Qur’an, the hadiths are the second authority in Islam.

[9] Fatwa: A religious edict issued by a high level learned scholar of Islam.

[10] Ijtihad: The act of determining the propriety of a particular phenomenon in relation to Islam where there is no previous precedent; usually performed by scholars who reach a conclusion in the form of a fatwa.

[11] It is proper etiquette that following a Prophet’s name one says, “may Allah’s Peace and Blessings be upon him” (PBUH), or, in Arabic, Sallalahu Alahi  wa Salaam.

[12] Abraham (Ibrahim in Arabic): Lived in Ancient Mesopotamia and sired Jacob (Ishaq) and Ishmael (Isma’il). Jacob was the patriarch of the 12 Tribes of Israel and Ishmael of a particular line of Arabs of which Muhammad was a part.

[13] Tawheed: The essence of Tawheed is in the phrase “there is no god, but Allah”. This means that there is nothing else worthy of worship, obedience, admiration, etc. except fot the One God, Allah, creator of all the universe. This belief also connotes that Allah is the only true reality as everything else only exists by Allah’s leave and depends on Allah for sustenance.

[14] Ishmael: First born son of Abraham who was conceived by his second wife, Hagar (Hajure). The bible refers to her as his concubine/consort. The jealousy of his first wife (who was barren at the time), prompted her to force Hagar and her son into exile.

[15] Ka’ba: A Holy temple in Mecca believed to have been constructed by Abraham and Ishmael

[16] He was often called by the name “al-Amin” (the Trustworthy)

[17] The archangel familiar in Judea-Christendom, Gabriel the Messenger.

[18]Read! With the name of your Lord Who created (all of the universe), Who also created human beings from a congealed clot of blood. Proclaim, for your lord is the most benignant…..” [Surah (96) Al-Alaq, v. 1-5]

[19] It is important to bear in mind that the revelation did not occur all at one time. The Qur’an was revealed to Muhammad on a need to know basis, so to speak, as he and the Muslims interacted with one piece at a time until it was complete.

[20] Abu Bakr: Close friend of Muhammad and one of the first to accept Islam. Later he became the first Caliph (Khalif) after Muhammad’s death.

[21] Ali: One of the first to accept Islam and the first minor. He was Muhammad’s young cousin and eventually his son-in-law. He became the fourth Caliph. Some traditions say that he was announced by Muhammad to be his successor and that this right was usurped by the three Caliphs before him (Abu Bakr, Umar, and Uthman). This is generally held as a Shia (the 2nd largest Muslim denomination after Sunni) belief.

[22] This is utterance is known as the Kalimah: The phrase “La ilaha ill Allah”, there is no god except for Allah.  In order to become Muslim, one simply says this, with conviction and understanding, along with the accompanying phrase, “Muhammadan Rasululah”, Muhammad is His Messenger.  Together they are called the Shahadahtayn, the two Shahadahs, the two testimonies.

[23] The tribes of al-Aus and al-Khazraj were bitter enemies that were engaged in a perpetual civil war in Medina. Their acceptance of Islam changed this and they were unified. The first of them to become Muslims were the ones who met with Muhammad and formed the pact of Aqabah. They were inclined to him because they had heard from the Jews in Medina that a prophet was to arise soon. However, the Jews were not expecting that this prophet would come from amongst the Arabs.

[24] Also called the Hijri Calendar, the years count from the year of the migration which is considered 1 A.H.  It is a lunar calendar consisting of 12 months in a year of 354 or 355 days. Being a purely lunar calendar, it is not synchronized with the seasons. With an annual drift of 10 or 11 days, the seasonal relation repeats about every 33 Islamic years.

[25] Emperor Heraclius ruled the Byzantine Empire from 610 to 641 CE

[26] Khosrau II was the twenty-second Sassanid King of Persia and he ruled from 590-628 CE

[27] The Prophet Muhammad had three sons that all died before reaching adulthood, Qasim, Tahir, and Ibrahim.

[28] At the pond of Ghadir Khumm, on their victory march back to Mecca in 633 CE/10 AH, the Prophet Muhammad stopped to give a pronouncement at which time, according to Tabataba’i, he took Ali’s hand and announced him as his successor as 120,000 Muslim pilgrims looked on.

[29] Caliph/Khalif=ruler

[30] By 680 CE Imam Ali, Imam Hassan, and Imam Husayn had all been killed. Ali by a Kharijite and his sons by the Umayyads.

[31] Literally translated, this word means community, but refers specifically to the Muslim community and by extension the Islamic State.

[32] It is often said that absolute power corrupts absolutely. This was a magnificent exception.

[33] Zakat is a binding tax on all Muslims and is one of the five pillars that upholds the faith. It stipulates that 2.5% per annum of your accumulated wealth be given in charity. Under the Islamic State, that money would go to the state and be redistributed to the needy.

[34] Jizyah is a tax levied against non-Muslims that are under the protection of the Islamic State.

[35] Congregational prayer leader

[36] Caller to prayer. The first one was Bilal, an African slave turned Muslim. He wrote the adhan (call to prayer).

[37] Currently, Islam is now the second largest religion in the world, after Christianity and the fastest growing in the West[37] (Young 1997).  In the United States, for example, nearly 80 percent of the more than 1,200 mosques have been built in the past 12 years.

[38] The Arabic word taghut[Tah-goot] literally means to, cross the limits, overstep boundaries, or to rebel.  Imam Muhammad Al-Asi defines it simply as “concentration and abuse of power (Al-Asi, 423).

In a applicable context, Dr. Diyaaud-deen Al-Qudsy describesit as everything that dissuades and deviates one from the worship of Allah and also prevents one from faithfully and sincerely obeying Allah and His messenger; whether it be “Satan”, man, trees, stones, women, [spouse], [idols]; or an oppressive dictator or an outstanding group that people selected, an assembly, a group of scientists that enacts laws other than Allah’s laws. It may be a custom, a habit, or an ideology that has not originated from the Book of Allah and one who ascribes to himself the right of enacting laws and setting limits.

Entering into this meaning without a doubt is ruling by foreign laws and abandoning Islam and its legislations, enacting laws and setting limits like permitting interest, fornication and adultery and intoxicants. The laws that these people legislate and enact are taghuts itself and those people that legislate and lay down these laws are also taghuts.

Taghut is every nation that seeks judgment from other than Allah and His messenger or follows the taghut or obeys it in that which he does not know is obedience to Allah alone. (Al-Qudsy n.d.)

[39] Shirk is to associate anything with Allah’s sovereignty or propose that Allah has an equal or rival. To imagine that Allah has offspring or that anything else is anything more than a creation of Allah. Allah is the only divine and Allah is omnipotent, in need of nothing. Shirk is the only sin for which Allah has declared there is no hope of forgiveness or mercy. Furthermore, Muslims worship Allah alone and to obey is to worship. Therefore, any authority in the life of a Muslim must receive his/her authority from Allah and execute that authority in harmony with the Qur’an and Sunnah.

[40] In any situation, Islam emphasizes ones responsibilities above ones rights.

[41] These are customary/preferred/advised roles. Women are in no way prohibited from working anymore than men are prohibited from doing the dishes.

Contempt of Court: The Turn-of-the-Century Lynching that Launched 100 Years of Federalism

Naji Mujahid
Phil. & Meth. Of History
Professor Jowers
December 1, 2012

Book Review

Contempt of Court: The Turn-of-the-Century Lynching that Launched 100 Years of Federalism. By Mark Curriden and Leroy Phillips Jr. (New York: Faber and Faber, c. 1999. Pp. xviii, 394. $30.00, ISBN 0-571-19952-6.)

In Contempt of Court, the authors, Mark Curriden and Leroy Phillips, Jr., produce an impressive historical narrative.  They come from two professional backgrounds; Curriden as a journalist and Phillips as an attorney and legal historian.  What they exhibit in their collective work are in-depth research of sources that were almost 100 years old and an impressive ability to imagine and recreate scenes for the reader, based on the available evidence.  The sources used include court records, newspaper accounts, and the private papers of some of the people involved.  Missing from their research are many of the court records from the Hamilton County Courthouse in Chattanooga, where the lynching took place.  Unfortunately, it burned down.  Nevertheless, the story is a seemingly accurate portrayal of the events.  “Unlike many books documenting the travels of cases through the state and federal court systems, this book spends a great deal of time on the characters and sequence of events surrounding the litigation. This is not a story, but rather a full-blown documentary told with detail and amazing clarity. This is quite a testament to the research underlying the story.”[1]

In 1906, Nevada Taylor, a young white woman was raped by an unidentified assailant.  Her initial account of her assault was that she did not know who her attacker was, or even his race, however she “thought” it was a Negro.  In the days to come, the authorities, led by Sheriff Joseph Shipp attempted find the rapist, but to no avail.  Eventually, they had a breakthrough in the case after a reward of $375 was offered.  In an effort to claim the reward, a local main came forth with a tale of how he saw a “suspicious looking Negro” at the train station near the crime scene.  He later identified Ed Johnson.  Johnson was subsequently arrested and the following night, a mob attempted to steal him from the local jail but was thwarted by Sheriff Shipp and Judge Samuel McReynolds.  McReynolds appeased the mob by promising a speedy trial and conviction.

It was this promise that doomed Johnson because McReynolds gave this promise primacy over Johnson’s right to a fair trial.  Johnson was hastily convicted in three days and given the death penalty.  His lawyers, who had been threatened and attacked during the course of the trial, encouraged Johnson to waive his right to appeal, reasoning that, “You can accept the verdict of the court and die in an orderly, lawful manner.  Or you can die horribly by the hands of the mob…. Do you want to die in an orderly fashion or do you want a lynch mob to take you from your cell, drag you into the streets, beat you, and hang you in front of everyone….?”  It is a lawyer’s duty to inform their client of all the possible consequences of their decisions and, unfortunately, a lynching was a distinct possibility, but the lawyers “had betrayed their client by encouraging him to waive his rights to appeal.”

This is where Noah Parden and Styles Hutchins came in to the picture.  Both of them were Black lawyers in Chattanooga and they were appalled at the way the trial was carried out and they convinced Johnson to let them handle the appeal.  Johnson accepted and the two lawyers set to the business of filing the appeal with the Tennessee Supreme Court.  The court ruled that it was not within their jurisdiction to extend the federal protections of the Bill of Rights to State cases.  However, they were willing to give Johnson a stay of execution in order to give his new lawyers time to appeal to the federal Supreme Court.

Parden eventually made his way to Washington, DC and was given an audience with Associate Judge John Marshall Harlan.  Parden cited the Constitutional violations that had taken place in the Johnson Case, including the Fourth Fifth, Sixth, and Fourteenth Amendments among them.  He went on to explain that two of the lawyers appointed to represent Johnson had never handled a criminal case before, that the defense was “denied enough time to investigate adequately and research properly the case against their client”, that Blacks were systematically excluded from the jury, and that the case should have been moved to another jurisdiction because “the atmosphere in the community was so poisoned that there was no way that Ed Johnson could have received a fair trial from an impartial jury.”  Furthermore, he pointed out that the jury was clearly tainted and biased because two of them made derogatory remarks and threatening gestures at Johnson during the trial.  “Parden was asking the Court to intervene directly in a state-court criminal trial for the first time in the nation’s history”.

After careful consideration and conference with the other Judges, the Supreme Court of the United States did exactly that.  And this is where the plot thickens.  The following day the City of Chattanooga, Tennessee in general, and Sheriff Shipp and Judge McReynolds in particular, were in for a rude awakening; the Supreme Court had decided to hear the case and were suspending Johnson’s death sentence.  This did not go over well.  The press, the public, and the elected officials of Tennessee verbalized their contempt of the Supreme Court intervening into their State’s business.  And then they went beyond verbal contempt.  The Sheriff, the Judge, and the District Attorney all stood idly by while a mob gathered to apprehend Johnson who was now under state protection.  Johnson, who had adamantly maintained his innocence from the day he was arrested until the moment he died, was lynched that night. His last words were, “God bless you all, I am an innocent man”.

Frustrated, the Supreme Court pondered what to do.  Eventually they decided to charge the members of the mob, Sheriff Shipp, and others with contempt of court and convene a trial where the Solicitor General would serve as prosecutor and the Judges as judge and jury.  This has never happened before or since.  Shipp, et al. were found guilty and given short sentences.  In this way, the Court fortified its power and influence in the hierarchy of American law and order.  However, because Johnson was killed, his case was never heard and therefore the Constitutional issues were not decided.

One of them, the right to counsel, was not established until another Supreme Court case, Gideon v. Wainright (1963), established that “The right of an indigent defendant in a criminal trial to have the assistance of counsel is a fundamental right essential to a fair trial, and petitioner’s trial and conviction without the assistance of counsel violated the Fourteenth Amendment.”[2]  Then, in 1970, the Court held in McMann v. Richardson that “[T]he right to counsel is the right to the effective assistance of counsel.”  In other words, that counsel for the defendant is able to give due diligence to the case.  More recently, in March of 2012, the Supreme Court further extended this Sixth Amendment right to the plea bargain process.

This book has been highly regarded, even winning the American Bar Association’s Silver Gavel Award.  It’s accolades notwithstanding, Contempt of Court has not been without some criticism, “The story of the Johnson litigation testifies powerfully to the pervasiveness of racist poison that saturated the unreconstructed South. But Contempt of Court exaggerates its legal significance”[3].  However, in stark contrast to this view, former Chief Justice Thurgood Marshall was of the opinion that the “The import of the Sheriff Shipp case on the federal court’s authority over state criminal cases should not be underestimated”.  In this writer’s opinion, this book should be of interest to anyone interested in post-reconstruction era American history, legal history, or because of its narrative style, anyone inclined towards John Grisham style legal drama.


[1] John B. Gates. Article 10.  Santa Clara Law Review: 2000; Vol. 40. 4.

[2] Gideon v. Wainright.  US Supreme Court Center.  Justia.com.  http://supreme.justia.com/cases/federal/us/372/335/case.html.  Accessed December 1, 2012.

[3] Hugh Davis Graham.  Book Review: Contempt of Court: The Turn-of-the-Century Lynching That Launched a Hundred Years of Federalism.  The American Journal of Legal History , Vol. 44, No. 1 (Jan., 2000), pp. 91-93.  Accessed December 1, 2012.  http://www.jstor.org.proxydc.wrlc.org/stable/846268.