Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions

• Citation: Vol. 69 No. 2
• Publication year: 2018

Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions

LeRoy Pernell

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Racial Justice and Federal Habeas Corpus as Postconviction Relief from State Convictions

by LeRoy Pernell^*

Introduction

It is the purpose of this Article not to simply document the influence of race on our criminal system and its role in the current racial crisis of overrepresentation of minorities in our prisons, but rather to focus on the future and importance of a key tool in the struggle for racial equity—federal habeas corpus as a postconviction remedy. By looking first at the racial context of several "landmark" criminal justice reform decisions, this Article considers how race serves as the root of the procedural due process reform that began in earnest during the Warren Court. This Article then notes the important role played by federal habeas corpus as a postconviction remedy as well as the unique nature and suitability of this "extraordinary writ" to bring about transformative change.

On July 14, 2015, President Barack Obama, in a historic and unique statement for a United States President, declared that the American criminal justice system is particularly skewed by race. In a speech to the National Association for the Advancement of Colored People (NAACP)

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Annual Convention, President Obama noted a "long history of inequity in the criminal justice system in America."¹ Although the United States is home to only 5% of the world's population, it accounts for 25% of the world's prisoners. Incredibly, of those 2.2 million prisoners, 60% are African-American or Latino men. This translates to the incarceration of 1 in 35 African-American men and 1 in 88 Latino men—as opposed to 1 in 214 white American men.² The sheer number and percentage of African-Americans—men in particular—in prison represent a social and political epidemic and pose what may be the most significant question regarding the state of civil rights faced in the twenty-first century. Professor Michelle Alexander refers to this level of incarceration as the "New Jim Crow."³

President Obama's speech set forth three areas of particular concern motivating the President to propose federal action. He generally described these areas as the community, the courtroom, and the cell block. Part of the President's concern, outlined in his address, focused on what he termed as "change in the courtroom."⁴ In this context, he focused almost exclusively on the outcome of the adjudicatory process—namely, sentencing. Like Professor Alexander, President Obama placed the root cause of the disproportionate presence of African-Americans in prisons largely on non-violent drug offences. The President's suggested remedy consisted of encouraging better use of prosecutorial discretion, treatment-oriented alternatives to prison, and legislative sentencing reform.⁵

Additionally, the President's address concerned itself with institutional conditions and the function of penal institutions. The level of prison overcrowding, overuse of solitary confinement, and the lack of rehabilitative programs, combined with lengths of sentences that are the longest in western societies, serve much more destructive purposes than rehabilitation. The President also suggested that attention be paid to barriers to successful reintegration of convicted felons into society after incarceration. Citing Montgomery County, Maryland, which provides job training and eliminated unnecessary reporting of prior convictions on job

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applications, the President raised old and new ideas of institutional reform.⁶ Alexander and the President's remarks focused on the devastating and disproportionate impact conviction and incarceration have had on the African-American community. The generations of African-Americans adjudicated as felons who are ostracized and disenfranchised—both politically and economically—have often deprived an entire community of its best and brightest. Notwithstanding the significance of Alexander's and President Obama's positions, attention should be paid to the equal, if not greater, extent that the process of adjudication and law enforcement ensnares one out of thirty-five African-American men. The existence of racism and the impact of disparate perception and treatment because of race, in a system of selective law enforcement and guilt determination, raises fundamental questions of societal and legal legitimacy.

This historic and profound corruption of justice in the court plaguing our legal system has not gone entirely unnoticed. A. Leon Higginbotham, Jr., perhaps one of the greatest African-American jurists of our time,⁷ commented on the interaction between law and racism present in our judicial system. In Shades of Freedom,⁸ Higginbotham states, "Acts of racism in the courts are symptomatic of the society's cultural racism. They trigger other racist assumptions in the minds of [the] courtroom participants and symbolize to society the legitimacy of the ideology of racism."⁹ Higginbotham describes how the culture of racism impacts even the setting for a supposedly fair trial.¹⁰ In the 1948 decision in Murray v. State,¹¹ the Mississippi Supreme Court upheld segregation by not allowing African-Americans to observe the African-American defendant's "public" trial except from the balcony of the courtroom,¹² It was not until fifteen years later that the Supreme Court of the United States recognized that such segregation not only denied the right of African-

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Americans to be part of the public at a public trial but also denied the defendant equal protection.¹³

From courtroom "apartheid"¹⁴ and the debasing and devaluing of witnesses and evidence because of race¹⁵ to the undisguised appeal to racial fear,¹⁶ American legal history has been replete with the denial of fair and equal justice because of race. In Moulton v. State,¹⁷ this distortion of justice often reflects the impact of fear based on stereotypes of the African-American people.¹⁸

There is perhaps no more vivid demonstration than Brown v. Mississippi¹⁹ of racism destroying any semblance of due process. On March 30, 1934, someone murdered a prominent local planter named Raymond Stewart. The crime was particularly brutal in that Stewart was substantially disfigured with an axe.²⁰ The local sheriff was unable to obtain a solid lead on the crime—particularly after bloodhounds were unable to track a scent. The sheriff and his deputies concluded that the crime must have been committed by African-Americans. This notion particularly took hold when a local African-American, Arthur Ellington, having heard about the murder, visited the Stewart estate to pay his respects.²¹

With no physical evidence or leads, Sheriff Adcock remembered that, on Stewart's large property holdings, there lived a thirty-year-old African-American tenant by the name of Ed Brown. Within a span of forty-eight hours, Ellington, Brown, and another local African-American resident, Henry Shields, became the objects of suspicion, terror, and torture. On the afternoon of March 30, Deputy Sherriff Dials and others

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visited Ellington's home. After requesting that Ellington accompany Dial to the deceased's home, Ellington was then subjected to accusation by a mob of white men demanding Ellington's confession. Ellington maintained his innocence and was thereafter hanged from the limb of a nearby tree. This was done twice; still Ellington would not confess. He was thereafter beaten severely, but then released to return home, still maintaining his innocence. Ellington's ordeal continued when the sheriff's deputy and his gang of whites returned sometime during the next two days under the pretext of arresting Ellington, but the deputy transported him to Alabama where he was severely beaten and told that the beating would continue until he confessed. Alone and presented with no alternative, Ellington "agreed" to confess. Brown and Shields fared no better. Both were arrested on April 1, stripped, beaten, and informed that the beatings would continue until they confessed—which they did. Ellington's injuries were so bad that the marks of the beating and hanging were plainly visible at trial.²²

Particularly significant for discussion in this Article is the façade of "due process" provided to the defendants. A "hearing" was conducted to determine the voluntariness of the confessions twenty-four hours after the defendants' arrest. This was conducted by the same sheriff's department responsible for the torture. Unsurprisingly, the confessions were found to be voluntary.²³ Legal counsel was appointed, as this was a capital case. The defendants were indicted just twenty-four hours before the trial. Aside from cross-examining the sheriff's officers, who freely admitted their conduct in coercing the confessions, and objecting generally to the admission of the statements, no real effort was made by appointed counsel to suppress the confessions.²⁴ The Supreme Court found a violation of the Due Process Clause of the Fourteenth

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Amendment of the United States Constitution²⁵ in light of the extraordinary record.²⁶

Brown demonstrates that Michele Alexander's "New Jim Crow" is more than just disproportionate numbers in prison but includes the product of racial fear infecting our criminal justice system—not just at sentencing, but in the very determination of who is subjected to criminal justice and what type of justice the African-American defendant receives. Race's role as an impermissible part of criminal adjudication was often a large (although mostly unspoken) part of the criminal justice reforms of the 1960s and 1970s. Racism has been fought as the antithesis of due process and equal protection. While few deny significant progress was obtained through these reforms, it is somewhat Pollyannaish to suppose this negative legacy does not still provide a major source of concern.

Federal judicial review has been the principal tool for...