Civil and Human Rights

Will Black Lives Matter to the Supreme Court?

Three cases provide cues on how the Court may handle race and criminal justice questions that are roiling the country.

By Shaun Ossei-Owusu

One common theme in news stories about the current docket of cases before the Supreme Court is that they are boring, uncontroversial, and even “sleepy.” Some analysts have concluded that the eight justices have avoided taking on blockbuster cases that may end up in a tie. Nevertheless, the Supreme Court recently heard three cases involving race and criminal justice that, while they aren’t the kind of attention-grabbing conflicts likely to inspire debates in cafes and college classrooms, could provide important guidance on where American jurisprudence may be headed on these issues.

Since Ferguson, there has been sustained national attention on criminal justice reform. Rappers and athletes talk about the need for change; the video archive of black people killed by police grows every month; and the racial gap in confidence in the police continues to widen. The Court can ignore, address, or backpedal on policing—and any one of these choices can shape the national conversation on race. As Elizabeth Wydra, president of the Constitutional Accountability Center, a Washington think tank, notes, every Supreme Court case is significant because “as the final arbiter of the law, its decisions have an impact on entire classes of people.”

The first of these race and criminal justice cases, Buck v. Davisinvolves a black man on death row in Texas who claims that racial stereotyping tainted his court proceedings and rendered the resulting death sentence unconstitutional. In 1995, Duane Buck went to the home of Debra Gardner, his former girlfriend, and shot and killed Kenneth Butler (who he believed was sleeping with her). He then murdered Gardner— in front of her children. He also shot his stepsister Phyllis Taylor, who survived.

The heinous facts of this case sometimes get glossed over. Yet these details are crucial, not in the disingenuous, “why don’t blacks talk about black-on-black crime” kind of way, but to acknowledge that intra-racial partner abuse often gets overlooked in cases of racial injustice: Even though a person may have had his or her constitutional rights violated, it does not mean we ignore the crimes he or she may have committed. But the opposite is also true: A person who has committed crimes should not be deprived of his or her constitutional rights.A person who has committed crimes should not be deprived of his or her constitutional rights.

After Buck’s conviction, the prosecution and the defense both presented evidence on the future threat that he might pose to the public, a critical issue in sentencing. Buck’s attorney, Jerry Guerinot (who had the “worst record of any capital lawyer in the United States,” according to an attorney quoted in a New York Times article) brought in damaging expert testimony from Dr. Walter Quijano. Quijano identified race as a factor that predicted that Buck posed a threat. On cross-examination, the prosecution pounced and asked him to elaborate on whether Buck being black increased the threat. Quijano responded “yes.” This was no surprise to Buck’s lawyer: He had access to a report prepared by Quijano that linked race to dangerousness. Yet he still called Quijano to the stand. According to 2014 decision from a lower court, “Buck’s counsel recklessly exposed his client to the risks of racial prejudice and introduced testimony that was contrary to his client’s interests.” Unsurprisingly, the jury sentenced him to death.

One major issue in the case is the ineffective assistance of counsel. Criminal defendants have a constitutional right to a competent attorney. This right is violated when a lawyer’s performance is unreasonable and the result would be different if the lawyer did an adequate job. It’s no secret in legal circles that the bar for competence is low. Lawyer incompetence claims have been denied even when the lawyers involved were drunk, cocaine addicts, or mentally ill.

How the Court rules on this issue will affect whether Buck should be able to appeal his sentence, which leads to another key question in this case. Is the injection of race by one’s own attorney enough to merit reconsideration of a case? There are also glaring social problems in this dispute. The most obvious is race. Next is the arbitrariness and bias that filters into death penalty decisions. Justice Stephen Breyer bears watching on this point, as he increasingly questions the death penalty’s constitutionality. The Court might also discuss the factors that led to Buck getting such a bad attorney and the right to counsel, and address the ways experts conflate race with risk, which is in vogue in certain bail, parole, and sentencing decisions.

The second case before the Court, Manuel v. City of Joliet, involves legal technicalities and remedies for police misconduct. Despite some denials about a “police problem,” there seems to be more readiness today to talk about police violence than at any point in the last few decades. Yet addressing this misconduct does not seem to be an issue that there is serious appetite for outside of activist and academic communities. This case, though, could be consequential, since it could influence the range of legal options available to victims of police misconduct.

In March 2011, Elijah Manuel and his brother were driving through Joliet, Illinois. As Manuel slept in the passenger seat, Officers Terrence Gruber and Thomas Conroy, who had a history of harassing the brothers, stopped the car, opened the passenger door, threw Manuel to the ground allegedly saying, “You remember me, street punk? Now I got you, you fucking nigger.” The two officers kicked and punched Manuel after they handcuffed him. The officers searched the car but only found vitamins. They tested the pills on-site to see if they contained a controlled substance, but the results were negative. They arrested him anyway. At the police station, a technician tested the pills again and got the same results. However, the technician lied in the police report and claimed that one of the pills was “positive for the probable presence of ecstasy.” Officer Gruber also lied about certain details in the case.

The prosecution charged Manuel with possession of a controlled substance, which is a felony. After Manuel’s public defender requested copies of the test results, the prosecution dismissed the charges and he was released. But Manuel had already spent 48 days in jail. He could not complete his college coursework, defaulted on his student loans and other bills, and lost his apartment. He filed a civil-rights complaint, arguing that his Fourth Amendment right to protection against unlawful searches and seizures had been violated.

A key issue in Manuel is this: Do these rights extend after arrest to detention? Most of the country says yes, but in Illinois (as well as in Indiana and Wisconsin) the answer is no. How the Court treats this question will influence a myriad of other technical legal issues that are sometimes difficult for the attorneys involved to unpack. Stanley Eisenhammer, a first-timer before the Supreme Court and partner of a small firm in suburban Chicago, argued for Manuel. But in his exchanges with Chief Justice John Roberts and the other members of the high court, he spent too much time in the weeds in an already complex case, sparking palpable confusion among the justices. At one point, Justice Samuel Alito said, “I don’t understand it.” Justice Elena Kagan prefaced her comments by saying, “I might be misunderstanding this [position].”

Rory Little, law professor at University of California Hastings and contributor to SCOTUSblog, believes the Court may just punt the Manuel case back to the lower court. For people concerned with reform, that might be one of the more favorable scenarios. This is another case where the Court’s ruling could affect criminal justice reforms. The justices might say something about police lying—which is something civilians have long complained about, videos now demonstrate, and scholars have described. Considering how prosecutors relied on the cops’ fabricated evidence, perhaps the Court might comment on the sometimes incestuous relationship between police officers and prosecutors?

Moreover, in the past decade, the Supreme Court made it harder, in a pair of decisions, for poor and middle-class people to file civil complaints, or to challenge big corporations. Want to sue a prosecutor for misconduct? Under the Roberts Court’s  jurisprudence, good luck. There are very few legal routes available for people who want to sue for police or prosecutorial misconduct. In a country where Fourth Amendment’s protections seem to be stronger for whites (in certain instances), how the Court rules on Manuel’s complaint could have real consequences for racial minorities and poor people.

The last case, Pena-Rodriguez v. Colorado, pits the right to an impartial jury against the confidentiality of jury deliberations. Miguel Angel Pena-Rodriguez worked as a horsekeeper at Arapahoe Race Track in Colorado. While two teenage girls were in the race track’s bathroom, a man turned off the lights and groped them. They escaped and soon thereafter Pena-Rodriguez was arrested. The girls identified him as the assailant. A jury found him guilty of three misdemeanor sex crimes, sentenced him to two years’ probation, and required him to register as a sex offender.

Afterward, two jurors told Pena-Rodriguez’s defense attorney that one of the jurors, “H.C.” allegedly exhibited bias toward Pena-Rodriguez and a witness “because they were Hispanic.” His statements fused the real problems of sexual violence against Latinas with stereotypes about race and ethnicity. The two jurors claimed that H.C. said he thought the defendant “did it because he’s Mexican and Mexican men take whatever they want” and because in his “experience as an ex-law enforcement officer, Mexican men had a bravado that caused them to believe they could do whatever they wanted with women.” Finally, H.C. said that he didn’t “think the witness was credible because, among other things, he was ‘an illegal.’” Based on these statements, Pena-Rodriguez appealed the decision but lost twice.

The problem that the Court faces is that many states like Colorado and the federal courts have rules against challenging a decision based on statements made during jury deliberations. These rationales are reasonable: Jury deliberations should be frank, prevent losers from harassing jurors after the verdict, and produce closure on cases. But the Sixth Amendment right to a fair trial also comes into play, a right that H.C.’s alleged comments compromised, according to Pena-Rodriguez’s arguments.

Another issue this case could confront is racial discrimination in jury selection, which is pervasive. How did H.C. get selected? A person can hide bias, because being outwardly racist is unfashionable or because that person genuinely believes he or she is not prejudiced, even though subsequent comments may demonstrate otherwise. How should the Court deal with bias after the jury gets seated? Racist statements by jurors are real problems. Are jury deliberations that are contaminated by race enough to warrant second looks at cases? If so, how do lower courts do this in a way that does not open up the floodgates for new exceptions or prevent losing defendants from wheeling and dealing race cards? Language that recognizes or ignores such observations could be important, especially considering the Court’s recognition that unconscious bias is a problem.

This term, the Supreme Court will have the opportunity to do something substantive about race and the criminal legal system, at a time when both issues are at the top of the public agenda. The Court should protect the right of minorities, but has often failed to do so. And, moreover, in some instances, it aggressively acted against their interests. But the Court isn’t morally bankrupt either; it has stepped up to the plate occasionally. We know Justice Sonia Sotomayor will take on these issues: When the Court—liberals included—gave cops more leeway, she left a trail of opinions regarding her views on expanding police powers. This term, the country will see if Sotomayor’s colleagues share her increasing skepticism. Placing too much hope in the Court’s ability to spur progressive social change would be a mistake. But the Supreme Court’s treatment of these cases can trickle down into policy proposals, social-movement organizing, and most importantly, the day-to-day of lives of poor people and racial minorities.

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