Better Late Than Never…I Guess

Law students–and, one hopes, high school history students–all learn about the case of Plessy v. Ferguson. It established the doctrine of “separate but equal,” a doctrine that ensured that Black folks could continue to be separated and definitely not equal, a situation that would be legally sanctioned until the decision in Brown v. Board of Education.

A quick summary: In 1892, a White-appearing African American resident of New Orleans named Homer Plessy bought a ticket on a train; he boarded the Whites-only car, then identified himself as Black and refused to sit in the car designated for Black people. He was arrested, and the case made its way to the Supreme Court, which rejected Plessy’s argument that his constitutional rights had been violated.

The Court ruled that a law that “implies merely a legal distinction” between White people and Black people wasn’t unconstitutional. As a direct result of that ruling, restrictive Jim Crow legislation and separate public accommodations based on race became commonplace.

It wasn’t until 1954 that Plessy was overruled; the unanimous Brown v. Board of Education decision held that separate was inherently unequal. The decision prompted an enormous backlash among White Americans, especially in the South, where hundreds of private schools (segregation academies) drained White children out of public school systems.

Ever since Brown, Americans have been engaged in a culture war over efforts to actually live up to the promise of the Equal Protection Clause of the 14th Amendment. I document many of the contemporary battles of that culture war in this blog. Although progress has been painfully slow–and although sometimes, as with the travesty that was the Kyle Rittenhouse trial, we seem to be regressing– we really have made headway.

One sign of that progress was the news last weekend that Louisiana officials have voted to pardon Homer Plessy–a mere 125 years after his loss in the Supreme Court.

Now, 125 years after the shameful decision that codified the Jim Crow-era “separate but equal” fiction, the namesake of that famous case, Homer Plessy, may be pardoned. The Louisiana Board of Pardons unanimously approved a pardon Friday, according to the Associated Press, sending it to Gov. John Bel Edwards (D) for final approval.

Another–and positively heartwarming–sign of progress is the fact that descendants of Homer Plessy and John Howard Ferguson, the Judge who ruled against Homer Plessy at the trial court level, have come together to establish a foundation they have named the Plessy AND Ferguson Foundation.

From that foundation’s website:

After meeting through mutual friend and We As Freemen: Plessy v. Ferguson author Keith Weldon Medley, Keith Plessy and Phoebe Ferguson began a partnership that eventually blossomed into the Plessy & Ferguson foundation. Together, they visit schools, festivals, and academic or historical institutions, spreading their message that their mutual history can be a tool to create unity and understanding. By coming together as Plessy and Ferguson, they have seized the opportunity to pick up the torch, keeping history alive, and sharing their vision for true democracy in the 21st century.

CBS Saturday ran an interview with Keith Plessy and Phoebe Ferguson last Saturday, and it’s worth watching. They tell the story of how, after Medley introduced them in 2004, they decided to form the Plessy & Ferguson Foundation, and how they have subsequently worked to have five historical markers honoring Homer Plessy added to the New Orleans landscape.

But as the Washington Post article linked to above notes, and historians have documented, those markers and that recognition don’t — and can’t — include a historical marker at Plessy’s old address on Claiborne Avenue. His home was demolished in 1968 as part of an urban renewal project that uprooted a Black community to make way for Interstate 10–one example among many of the deliberate siting of interstate highways that destroyed Black neighborhoods or separated Black residential areas from White ones in numerous cities around the country, very much including Indianapolis.

That’s another piece of our history that needs repairing…


Law And Order

No mentally-competent American still believes that Donald Trump is (1) honest (2) intelligent (3) informed or (4) sane. In a way, we are probably fortunate that he is so incredibly incompetent and unable to restrain himself from broadcasting his idiocy–if he was smart and just as corrupt, he could pretend to be other than what he is. Fortunately, he is too stupid to hide what he is.

Give him credit for one thing, though: he knew enough to commute Roger Stone’s sentence rather than pardoning his creepy co-conspirator.

The difference is significant: a pardon erases the conviction of guilt. A President’s decision to commute a sentence, however, doesn’t eliminate a federal conviction or imply that the person was innocent. It doesn’t even remove the ramifications of a criminal conviction, such as losing the right to vote or inability to hold elected office.

So–since even Trump must have recognized that letting Stone off the hook via either mechanism would engender huge blow-back–why not give his old pal a pardon?

Mother Jones asks–and answers–that question.

Why the second-class treatment of a commutation instead of a pardon? Wasn’t Stone important enough for a pardon?

But wait. Someone who gets a pardon can no longer invoke the Fifth Amendment as a justification for refusing to testify in court. If Stone were called in some other case, he’d be required to spill any beans he had. But if I understand the law correctly, a commutation is more limited. The conviction stands, and the possibility of putting yourself in further jeopardy remains. Thus your Fifth Amendment rights stand.

So if you wanted to help out a buddy, but you also wanted to make sure he couldn’t be forced to provide dangerous testimony in the future, commutation sure seems like the best bet, doesn’t it?

Reactions to the commutation have reminded us that Trump has either pardoned or commuted the sentences of a long list of other truly despicable–and unambiguously guilty– men: Joe Arpaio (Contempt of Court) Michael Milken (Fraud)  Scooter Libby (Perjury) Eddie Gallagher (War Crimes) and Rod Blagojevich (Corruption) come to mind.

There is another interesting wrinkle, legally, to Trump’s latest favor to the dark side.

Seth Abramson, an attorney and commentator, has characterized Stone’s commutation as that of a “co-conspirator,” and opined that–because it amounts to a “self-pardon”–it is obstruction of justice and thus unconstitutional. Nancy Pelosi has weighed in by recommending passage of a law forbidding a President from pardoning or commuting a sentence if the conviction was for illegal behavior to protect the President–which Stone’s quite obviously was.

Perhaps the most succinct summary of the situation came from Mitt Romney–who seems to be the only Republican in the Senate with either scruples or a backbone. Romney tweeted

Unprecedented, historic corruption: an American president commutes the sentence of a person convicted by a jury of lying to shield that very president.

There is broad recognition that another four years for this grotesque buffoon would be the end of America’s experiment with democratic self-government. Inconceivable as it seems, however, he continues to have the devotion of his base/cult. They won’t desert him and they will turn out for him.

If we want to save America in November, we’d better get massive turnout of people who come prepared to “vote blue no matter who.”


Pardon Me?

There are multiple reasons to be horrified by Trump’s pre-emptive pardon of the despicable Joe Arpaio.

There’s his usual display of legal and constitutional ignorance: By disdaining the process for determining the propriety of issuing a Presidential pardon and by displaying, once again, contempt for the Separation of Powers that is a foundation of our legal system, Trump has again illustrated that he is the perfect Dunning-Krueger model–an ignoramus who  doesn’t know what he doesn’t know.

Traditionally, Presidential pardons are issued after a person has served some part of his sentence and shown remorse, or alternatively, to correct a miscarriage of justice. There’s a thorough vetting process by the justice department to assess these factors. Trump, of course, ignored these criteria.

If that were the extent of the damage, this typically Trumpian fit of pique would simply be another entry in the extensive list of “reasons we shouldn’t elect people who don’t know what government is or does.” But it’s actually the least significant of the issues involved.

To understand those issues, you need to know some things about Arpaio. From the Guardian, we learn

Arpaio, the self-styled “toughest sheriff” in America, systematically abused his powers during his two decades in office before being voted out last November. Most notoriously, Arpaio commanded his police to detain people solely on the suspicion that they were illegal immigrants, even in cases where the “suspects” had violated no state law. This amounted to a blanket invitation to terrorize the domestic population through egregious practices of racial-profiling.

In 2011, a federal district court judge, a Republican appointee, ordered Arpaio to stop a practice that constituted a flagrant violation of constitutional rights. Rather than submit to the federal court order, Arpaio acted in open defiance, placing himself above the federal judiciary and the rule of law. Last month, he was properly convicted of criminal contempt for his defiance. He faced a maximum of six months in jail, but all that is now moot thanks to the president’s pardon.

From the Boston Globe, we learn this behavior was nothing new.

In 1997, a few years after Arpaio assumed office, the US Department of Justice sued him after an investigation found rampant mistreatment of inmates in his jails and a pattern of excessive force by the sheriff’s staff. Officers hog-tied inmates and used stun guns on them while they were handcuffed or in restraining chairs. The lawsuit was dismissed in a settlement, but Arpaio’s methods of abuse didn’t change at all.

As a result, many prisoners died at an alarming rate without explanation. According to the Phoenix New Times, taxpayers in Maricopa have paid more than $140 million to litigate and settle countless claims of brutality while Arpaio was sheriff.

By the mid-2000s, Arpaio had found another target to terrorize and criminalize: unauthorized immigrants (much like Trump did during the presidential campaign.) Arpaio became obsessed with enforcing federal immigration law, conducting workplace raids and immigration patrols where his staff stopped people who looked Hispanic and arrested those who were illegally in the country.

This history is well known, both to the populations Arpaio targeted and to the White Supremacists, neo-Nazis and Klan members who supported his behaviors. Trump’s pardon sent a clear message to both groups– especially to the bigots in his base who might have worried about Trump’s continued commitment to their “cause” in the wake of Bannon’s departure from the White House.

This pardon goes well beyond the “dog whistles” and “winks” employed by many Republicans to let bigots know they remain welcome in the Grand Old Party. It is a flat-out endorsement of racism, and I’m sure it comforted Trump’s White Nationalist supporters.

The spectacle of a United States President openly siding with enemies of everything America purports to stand for is nauseating, but even that is not the worst implication of this pardon.

Allow me to explain.

The Bill of Rights protects individual rights against government infringement. When a government agent–that is, someone acting on behalf of the government–violates the constitutional rights of an individual, both that agent and the government are answerable for that infringement. Our legal system punishes people who misuse the power of the state.

This pardon voids that guarantee of accountability. It guts the rule of law that anchors our constitutional system. It is telling government officials who abuse their authority that this President has their back, that they won’t be held to account for their misconduct–so long as their misconduct is consistent with the President’s own “priorities” and interests.

That’s how a constitutional democracy becomes an autocracy.

If this isn’t a constitutional crisis, I don’t know what is.