Black Faces

April 30, 2015

By: Anthony James

The characters of blackface have played a significant role in disseminating racist images, feelings, and perceptions worldwide. Desensitizing Americans to horrors of chattel slavery, these performances were lessons about the innocuousness of southern slavery. For more than one hundred years, the credence that blacks are an inferior species is fostered by multitudes of white performers in blackface.

In the United States’ early years, exaggerated red lips were painted around the mouths of white performers, like those of today’s circus clowns. In later years, their lips were usually painted white or unpainted. Costumes were usually gaudy combinations of formal wear; swallowtail coats, striped trousers, and top hats. Minstrel shows became hugely popular in the 1840s, exposing white audiences in the North to their first introduction to any depiction of black life. Minstrel show entertainment included imitating black music and dance and speaking in a “plantation” dialect. They would often feature a broad cast of characters: from Zip Coon, the educated free black man who pronounced everything incorrectly, to Mammy, a fat, black faithful slave who was really just obviously played by a man in a dress. Black children were depicted as unkempt and ill-raised pickaninnies. The joke about pickaninnies was that they were disposable; they were easily killed because of their stupidity and the lack of parental supervision. From 1840 to 1890, minstrel shows were unarguably the most popular form of entertainment in America, and it is possible that a resurgence of that old song and dance has once again become trendy.

The stigma left behind once the shows were no longer popular continued full steam ahead like a freight train filled with passionate disparagement of the Black people. Many white Americans during the time of the minstrels’ rise were already thinking in this regard, so to see it on stage for the purpose of entertainment gave the stereotypes life. Today, however, even with major steps in a more positive representation, the Black image remains stereotyped as if it were passed down hereditarily.

University of Florida students at a "Black Face party." Photo courtesy of TheGloss.com.

University of Florida students at a “Black Face party.” Photo courtesy of TheGloss.com.

From the University Of Florida to the University of California, Irvine to Arizona State University, blackface videos, images, and parties continue to pop up at predominantly white colleges across the United States. The people who attend these functions “dress like Black people,” wearing baggy jeans, gold chains and grills, bandanas, basketball jerseys, and more importantly is the blackface that puts the entire outfit together. Lets talk specifics, on Oct. 24, 2012 two members of the Beta Theta Pi fraternity at the University of Florida wore blackface to a party called “rock stars and rappers.” The photos taken showed two men wearing thick gold chains, baseball caps and “pants that hang so low they show their boxer shorts.” Beta Theta Pi president Ethan McMahon said, “While their actions were not intended with any malice or ill will to any members of our community, clearly they were offensive, and we accept full responsibility accordingly.”

Following the trend, the fraternity at Arizona State University that decided to celebrate the national holiday honoring civil rights leader Martin Luther King, Jr., by holding a party titled “MLK Black Party.” Tau Kappa Epsilon fraternity attendees wore basketball jerseys, drank from cups made out of watermelons, and flashed gang signs for the camera. The idea of the party was for White students to “black out for MLK day.” Has this become more of an act of advanced ritualistic racism, or are young adults innocently and unknowingly making a mockery of Black history? The answer is not simple, but it does not matter because the outcome is the same.

Dartmouth College students at a "Blood and Crips" party. Photo courtesy of TheGloss.com.

Dartmouth College students at a “Blood and Crips” party. Photo courtesy of TheGloss.com.

In 2013, at Dartmouth College, a fraternity and sorority hosted a “Bloods and Crips” themed party. They invited attendees to dress up as either a Blood or Crip, referring to the notorious, predominately black street gangs based in Los Angeles. A partygoer described it as a “ghetto party” with racialized language, speech and dress.” She even acknowledged that over 200 individuals attended this event. Over 200 potential students “dressed as black people” attended and used slang-like language for the purpose of entertainment. However, the Fraternity made a statement saying, “The idea was never meant to be derogatory to any group, and was intended to introduce a costume theme to the party.”

As a student, my disappointment stems from the lack of empathy or effort to care about the consequences that stem from the actions demonstrated by my fellow colleagues, who represent the most prestigious of higher education facilities in the world. As a scholar, I understand that the best and the worst of history tend to repeat itself. However, as a member of the Black community, I am hurt. Hurt because of the constant refusal as humans to see ourselves in people who do not look like us. Some of these events felt racially inspired and prejudicially motivated, while others seemed clear that the parties involved had little cultural awareness or competency, and did not understand the historical implication of costuming in blackface. Either way the coin flips, the outcome is the same in the eyes of the communities forced to live the lives being depicted for amusement.

Even more disturbing are the locations in which these events are taking place. The future leaders of America are demonstrating the effects that black face had, and still has, on the depiction of Black life. While these are not acts of violent racist nature, how long before the ideas promoted by these caricatures spill over into something more sinister? The idea becomes a thought process, and the thought processes are then carried out in how you act and react. Before long, these seeds of thought become the very trees of public opinion in which Blacks were forced to hang from for years. To ignore that possibility is to ignore the very fabric of thought that brought this issue before us today. The new black face isn’t on television, you cannot find it on broad way at the theatre, instead it is what the future of America does on a Friday night.


Disenfranchisement of Felons

April 28, 2015

By: Adam Melrose

President Abraham Lincoln once said that democracy is government “of the people, by the people, and for the people.” The Merriam Webster dictionary defines democracy as “a form of government in which people choose leaders by voting.” By this logic, and by the language of the Fourteenth Amendment, it appears obvious that every citizen of the United States is afforded the right to vote. However, approximately 5.8 million legal citizens of the United States are unable to vote, barred from polling booths by state laws. These citizens are barred by laws that prevent those with felony convictions from voting. This removal of voting rights from convicted felons is known as felony disenfranchisement.

A Brief History

The practice of felony disenfranchisement is rooted in the common law of England through a social policy known as “civil death.” While the English used this doctrine to escheat a felon’s property to the state upon conviction, this practice of civil death in the United States was far more commonly applied to the removal of voting rights. While originally the removal of voting rights was reserved only for the conviction of crimes that were considered “egregious violations of the moral code,” states began to expand the penalty to a broader range of felonies in the 1870s. Some scholars believe that the rise in state disenfranchisement laws was a direct response to the elimination of the requirement that a citizen must hold property to vote. These scholars also believe felon disenfranchisement as an alternative method created by the wealthy to reduce the voting power of the lower classes.1

After the Civil War, some of the Southern states even tailored their felony disenfranchisement statutes to target crimes traditionally committed in a higher frequency by blacks. This racist approach was personified by laws in Mississippi that allowed murderers to vote, but disenfranchised those who committed crimes of theft or arson. While today it is unlikely that the old racist rationales for disenfranchisement exist to the same degree, the effects the laws have on modern society are similar to the effects felony disenfranchisement had in the past.

The Modern Effects

A disenfranchised population of 5.8 million people means that nearly two percent of the United States population is unable to vote. While at first blush this might seem like an insignificant number, it is estimated that had this disenfranchised population been able to vote, they would have affected the results of seven United States Senate races. In addition, Al Gore would have won the presidential election in 2000, as Florida would have been won by Al Gore instead of former President Bush.2 This is clearly a significant impact on the democratic system; a clear and obvious impact on any election caused by disenfranchisement is worrisome, and an election as important as a presidential election should make anyone sit up and take notice.

map of fd laws by state web

One of the core issues with the current system of felony disenfranchisement is that it is not limited to the period of time in which the citizen is serving active time in prison for their felony conviction. In fact, in the majority of states in the U.S., disenfranchisement continues through parole and probation, even though there is no practical hurdle to prevent these men and women from voting. Even worse, in twelve states, citizens convicted of felonies are prevented from voting even after they complete all court-mandated probation requirements. These people are again members of society, and they should have an equal voice in electing those who will shape the world around them.

There are even some indicators that civic participation, including voting, have a positive impact on recidivism rates. If nothing else, the clearly disproportionate impact that felony disenfranchisement laws have on communities of color should raise the question whether these laws are having their intended effects, whatever these intended effects may be. In Florida, Kentucky, and Virginia, more than one in five black adults is disenfranchised, unable to vote on issues that truly matter to them.3 There have been some legal challenges to felony disenfranchisement that have helped to change the tenor of the conversation, and these legal struggles continue today.

Legal Challenges to Felony Disenfranchisement

The primary way that felony disenfranchisement has been challenged has been the argument that disenfranchisement policies are unconstitutional under the Fourteenth Amendment. The applicable section of the Fourteenth Amendment is as follows:

[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without the due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.4

 

Felons do not lose their citizenship, and citizens are allowed to vote. At face value, it would appear that since voting is a fundamental right of the United States democratic system, any law denying that right to vote “abridge[s] the privileges” of lawful citizens. However, the most recent Supreme Court case on point, Richardson v. Ramirez, more than forty years ago, held that the historical interpretation of the Fourteenth Amendment’s intent was not to abolish felony disenfranchisement, as disenfranchisement existed at the time and there was no explicit mention of abolition.5 Notwithstanding this defeat in the highest court, some states have begun to move forward with policy reforms to felony disenfranchisement.

Reform: A State by State Effort

There is no doubt that much of the resiliency of felony disenfranchisement laws is the lack of exposure about how onerous the hurdles are that convicted felons must overcome to once again become a voting member of society. Recent public opinion surveys show that eighty percent of Americans support the re-establishment of voting rights for felons once they complete their sentence, and sixty percent of Americans support voting rights for those still on probation or parole. These numbers sit in stark contrast to the majority of states that have laws contrary to public opinion, and help to show that lack of exposure is a serious issue in the reform movement. This is especially true where the individuals most affected by felony disenfranchisement are themselves unable to vote for representatives sympathetic to their plight. This quandary alone shows the dysfunction in the felony disenfranchisement statutes structure, and some states in recent years have come to this realization, and begun to act accordingly.

In the past twenty years, eight states amended or repealed lifetime disenfranchisement laws, ten states have made it easier for convicted felons to enter into the restoration process, and two states expanded voting rights to citizens on probation or parole. North Carolina now requires state agencies to create a process where citizens can be more fully informed about their voting rights under North Carolina law. While states have made some strides to combat unfair felony disenfranchisement, the battle is nowhere near complete.

Regardless of any individual’s personal opinion on whether a person convicted of a felony should be allowed to vote, it is important that society has the conversation about the costs and benefits surrounding felony disenfranchisement. The benefits are nebulous in nature, and ridiculous in reality: preventing “bad people” from voting because bad people make bad decisions. But the benefits of allowing felons to vote are many: the restoration of the key right of democracy; the potential for reduced recidivism rates; a more complete voice of the people through the voting process; and a basic adherence to simple standards of equality. This is a conversation that should be had, and one that the very people under attack are unable to fix for themselves.

1 – Elliott, W. E. Y., The rise of guardian democracy: The Supreme Court’s role in voting rights disputes, 1845- 1969, Cambridge, MA: Harvard University Press (1974).

2 – Uggen, C. & Manza, J., Democratic contraction? Political consequences of felon disenfranchisement in the United States, American Sociological Review, 67 (6), 777-803 (2002).

3 – Uggen, C. & Manza, J., Voting and subsequent crime and arrest: Evidence from a community sample, Columbia Human Rights Law Review, 36 (1), 193-215 (2004).

4 – U.S. Const. Amend. XIV.

5 – Richardson v. Ramirez, 418 U.S. 24, 54-56 (1974).


Faking Change…

April 23, 2015

By: Suzette L. Steptoe

In 1619, the Dutch introduced the first Africans to America, planting the seeds of a slavery system that evolved into a nightmare of abuse and cruelty that would ultimately divide the nation. In simple economic terms, American colonists benefitted from slave labor as they were able to sell their goods on the open and global markets at rates far cheaper than their competitors. America’s westward expansion and the North’s growing abolition movement provoked a great debate over slavery that extended into the American Civil War. The war ended in 1865, and roughly four million slaves were set free. The end of slavery was a prominent achievement in human rights. But while many historians are quick to discuss the social, economic, political and judicial effects, they tend to overlook how America was founded, and still heavily relies upon, forced servitude.

Legally abolishing slavery prompted some of the former slaves to leave the southern states because the southern way of life undermined their new rights. Conversely, many stayed and to remain shows one of the impacts of slavery. For so long, Black people were born into and bred for slavery. After hundreds of years of being forced into a way of life, when that force was lifted, it may have been difficult for the freed people to “force” themselves to do or be something other than submissive. But some were stronger than others which resulted in conflicts arising between some of the newly freed slaves and the landowners. These freed men rightfully “expected the federal government to give them a certain amount of land as compensation for all the work they had done during the slavery era,” but the landowner’s only concern was to continue controlling the various markets and maintain their production rates. Out of this conflict arose a system of cheap labor known as sharecropping.

Sharecropping allowed families to rent small sections of land in return for a portion of the crops at the end of the year. The landowners charged these families exuberant fees for renting and using the land which included the cost of seed, equipment, and food. After the landowner deductions, even with a good harvest, sharecroppers could only afford to continue working the land and, in essence, remained enslaved. When landowner’s had growing concerns for what would happen should the freed men decide they no longer wanted to work land they did not own, the solution came in the form of new laws.

Laws known as “Black Codes” were passed to authorize the arrest and imprisonment of former slaves for “crimes” such as being unemployed. These codes taught the Southern states to use “the criminal justice system as a tool of racial control [by convicting and sentencing Blacks] under. . . unjust laws that criminalized them for [merely] existing as free Black citizens.” These codes marked the beginning of Black people having the most contact with the criminal justice system. And as most prisons were destroyed during the war, a huge problem arose regarding where and how to house these prisoners. With so many Blacks being imprisoned, the states realized they could eliminate some costs and, at the same time, increase revenues by leasing these Black prisoners to landowners. This system of convict leasing became another means of nearly free Black labor the landowners had at their disposal. By simply changing the title of slave to prisoner, landowner’s once again had free reign over Black men. And just like slavery, those Black men were “overworked, brutally whipped and even killed” while under the control of White landowners.

No chains, No change…

The mid-1980’s introduced the War on Drugs, an anti-drug effort which focused on urban, Black neighborhoods. Although there was no great difference in drug use and sales across racial lines, Blacks were more likely than Whites to be stopped, searched, arrested, convicted and incarcerated which resulted in the prison population tripling in thirty years. As Blacks are arrested three times as often as any other race and comprise fifty-nine percent of inmates incarcerated for drug-related offenses, these numbers indicate just how drug offenses have become the new Black Codes so it is not surprising that “for a Black man in his thirties, one in ten is in jail or prison on any given day. . . and one in three has the likelihood of a lifetime incarceration.”

Politicians and policy-makers created a so-called link between skin color and criminality and began to promulgate the idea that lawlessness was a “colored” problem. This hoopla resulted in a scheme known as racial profiling that used law enforcement as a tool to discriminate. The rates of minority, mostly Black men, arrests and convictions due to racial profiling indicates just how the legal system maintains the misleading link between criminality and race and focuses on those who have a lower claim to social resources. But several scholars warned that the prison industrial complex scheme was targeted at, and a detriment to, minorities and the underprivileged. In her article entitled, Masked Racism: Reflections on the Prison Industrial Complex, activist, author, and tenured professor Angela Davis said, “imprisonment has become the [first response] to far too many of the social problems that burden people who are [hidden] in poverty. These problems often are. . . conveniently grouped together under the category “crime” and [this criminal behavior is automatically attributed] to people of color.” Seventeen years later, this still rings true.

With the rates at which Black men were imprisoned, prison overcrowding was inevitable. When problems arose regarding the financing of new prisons, for-profit, private prisons replaced the nineteenth century landowners. In the mid-1980’s, in conjunction with the War on Drugs, private prisons began contracting with governments to be paid monthly or per diem rates to house prisoners in its facilities. These contracts generally include occupancy requirements that mandate facilities to be kept at as much as eighty to 100 percent capacity at all times. Additionally, corporations such as the Corrections Corporation of America (“CCA”), the largest for-profit, private prison corporation in operation, retains the right to refuse inmates that are classified as disruptive or cost more to house like the physically or mentally ill .[i] As its name suggests, making a profit is the business of for-profit prisoning and this can only be accomplished by keeping beds full by any means necessary. With this at its helm, is there really a question as to why CCA co-chaired a task force that initiated a campaign to adopt harsher sentencing laws? Laws such as the “3 Strikes” law, which mandates life imprisonment for three felony convictions, and the “Truth in Sentencing” law, that requires inmates to serve eighty-five percent of their sentences before being considered for release all but guarantee prisons will burst at their seams while simultaneously stuffing the pockets of White, private prison executives such as George Zoley and Henry Wedell.[ii]

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In 2013, CCA posted nearly $1.7 billion in revenue in one quarter alone and in that same three month period, CCA earned $300 million in profits. Not a bad gig if you can get it. But if that ain’t enough, due to government contracts, 100 percent of that money came from taxpayer dollars. However, and unfortunately, corporations are not the only ones profiting from convictions, incarceration rates and unjust imprisonment. Members of the legal community are cashing in on this cow too. In 2011, a Pennsylvania judge participated in a conspiracy to unjustly incarcerate juvenile offenders in private detention centers owned and operated by his friends. This collusion netted millions of dollars. After being convicted of accepting bribes, the judge was rightfully sentenced to twenty-eight years in prison.

Private prisons are simply convict leasing with greater profit margins. More than thirty-seven states have passed laws permitting the use of convict labor by commercial enterprises such as Dell, Intel, Nordstrom’s, Target Stores, and many more. Companies will gladly pay inmates, on average, around two dollars a day to enjoy the fruits of investing in inmate labor. For these corporations, inmate labor is like finding a pot of gold as inmate labor means corporations never have to worry about employee strikes, unemployment insurance, vacations, late arrivals or absences, or family issues. Financially, corporations have no need to worry about profit shortages as incarceration rates lead to an overwhelmingly, increasing prison population that guarantees a steady labor force.

Governments and corporations maintain that through work schedules and salaries, inmate work programs make inmates productive, moral and turn prisoners into “real people with real ambition.” Most inmates will not argue against programs designed to reduce idleness or assist in providing marketable skills, work experience and wages. However, inmate work programs have long since subtracted any sort of inmate development initiatives from the equation and added commercial gain as it is now commonplace for economies to totally rely on inmate labor to the detriment of their communities. In 2013, when the Robeson County Correctional Center (“RCCC”) in Lumberton, North Carolina, closed its doors, officials were worried about how to compensate for the lost work generated by inmate labor. Twenty-six inmates were each paid one dollar a day for work that would cost the county $750,000 a year in non-inmate salaries. RCCC depended on inmate labor to such a large extent that officials considered employing inmates from surrounding counties as opposed to hiring non-inmates. It is choices such as these that speak directly to the nation’s unemployment rates. But what if an inmate decided he did not want to work or would not work for the wages offered? Well, quite frankly, he would be placed in segregation until he complied, labeled “uncooperative” and transferred to a less “desirable” facility and/or risk losing any good time earned. And how ironic is it that inmates are forced to work for companies that, because of their convictions, these same companies would refuse to hire once released? Reminiscent of sharecroppers working lands they would never actually own?

The United States’ leads the world in incarceration rates. With a 500 percent increase over the last forty years, [iii] inmates have become hot commodities for governments and corporations alike. Although inmate labor is a new form of inhumane exploitation that has been condemned by human rights, political and social organizations, government contracts with private for-profit prisons have bred inmates to be the mechanisms for the high profit margins of big businesses. Any time a person is commanded to work without being provided just compensation, an obvious human rights violation occurs. The Black man has withstood centuries of use and abuse due to America’s history of implementing policies directed at Black men that yield nearly free labor. These policies continue as corporations and governments that continue to support inmate work programs have, inherently, brought slavery full circle.

“There’s no such thing as free. There are only different and more horrible ways to be enslaved.”     

Lauren DeStefano

[i]  Andy Kroll, This Is How Private Prison Companies Make Millions Even When Crime Rates Fall, Mother Jones, http://www.motherjones.com/mojo/2013/09/private-prisons-occupancy-quota-cca-crime (Last visited March 27, 2015).

[ii]  Beau Hodai, Corporate Con Game: How the private prison industry helped shape Arizona’s anti-immigrant law, http://inthesetimes.org/article/6084/corporate_con_game (Last visited March 27, 2015); Ray Downs, Who’s Getting Rich off the Prison-Industrial Complex?http://www.vice.com/read/whos-getting-rich-off-the-prison-industrial-complex (Last visited March 26, 2015).

[iii] E. Ann Carson and Daniela Golinelli, Prisoners in 2012-Advance Counts, U.S. Department of Justice: Bureau of Justice Statistics, http://www.bjs.gov/content/pub/pdf/p12ac.pdf. (Last visited March 27, 2015).


FREE Resource from Clearinghouse Community

April 21, 2015

Law students interested in the real world of public interest law practice are invited to join the Clearinghouse Community, the new free resource from the Sargent Shriver National Center on Poverty Law.

The Clearinghouse Community follows on the rich tradition of Clearinghouse Review: Journal of Poverty Law and Policy and covers—in a practice-oriented way—developments in a wide range of poverty law topics of interest to students in the Civil Rights Clinic. For example, this month the Clearinghouse Community is featuring content on criminal records: an article on expungement as a gateway to workan advocacy story on preventing commercial background screeners from reporting expunged cases, and a Google+ Hangout on Air scheduled for April 29 with a professor and student in the Record Clearance Project at San José State University. Students may also want to check out curated collections of articles on criminal records, racial justice, and fair housing.

In fact, the Clearinghouse Community archives include an advocacy story by Charlotte School of Law’s own Prof. Jason Huber on the Civil Rights Clinic’s successful Ban the Box campaign.

The Shriver Center no longer requires a subscription to access these materials. Readers can simply register on the site (see the link in the upper right hand corner). Be sure to sign up to receive a monthly email linking to all of that month’s new content.


The “Miseducation” of The Black-Student Athlete

April 16, 2015

By: Anthony James

And since all the ballers leaving college early, I turn on the T.V. and don’t see no brothers with degrees lately…” sung rap artist J.Cole during a performance on David Letterman. As the lyrics spoke directly to me and a few other young former black student-athletes in attendance that night, I began to wonder just how true that assertion was.

The academic underperformance and underrepresentation of black men in NCAA Division 1 colleges and universities aren’t matters of concern to campus leaders and policy makers. Often lost in the lulling disguise of diversity, except when campus statistics explicitly reminds us of it, is the fact that there is one place where black men are not underrepresented on many campuses. On sports teams, particularly football and men’s basketball, black males make up just 2.8% of the student bodies at these schools, yet represented an astounding 57.1% of football players and 64.3% of basketball players.[1] The disparity of non-athletic black students versus athletic black students on Division 1 college campuses signals an exploitation of the athletic ability of these black student athletes for profit, and graduation rates display a disdain for the nurturing of their academic potential.

Photo courtesy of Deadspin.com.

Photo courtesy of Deadspin.com.

The focus on athletic performance rather than the student-athlete’s overall academic experience causes many athletic programs to recruit players that, while athletically talented, are not equipped to succeed academically. The statistics showing that black athletes graduate at lower rates than other black students attending the same institutions illuminate the fact that black student athletes are not recruited using the same level of academic scrutiny as every other student. Collegiate institutions recruit these players and then profit from their athletic abilities as the players mainly focus on becoming professional athletes. Although many student-athletes aspire to play professional sports after college, the National Football League (NFL) and the National Basketball Association (NBA) draft fewer than 2% of student-athletes of all races each year.[2]

According to a recent study of the 76 largest programs in collegiate athletics in the 6 conferences whose member institutions customarily win football, basketball championships, and play in multimillion-dollar bowl games, just 50.2% of all black athletes in revenue producing sports graduate within six years. Racial inequities in Division 1 universities across America are evidenced by the schools’ acceptance rates, let alone their graduation rates. What is shocking, however, is that these trends are so widespread, and the National Collegiate Athletic Association (NCAA) and athletics conference commissioners have done little to nothing in response to them. Even more egregious is the response–or lack thereof–from the American public, including former black student-athletes, college sports enthusiasts, and journalists, who have more than accepted this to be the norm.

The NCAA made approximately $912.8 million last year, with 83% of that coming from Division 1 college basketball tournaments. In light of these tremendous earnings, however, NCAA has an amateurism policy that does not allow students to be compensated for their efforts on or off the court while in college. Instead they go by the “pay-for-play” motto, which loosely stands for the idea that a full ride scholarship or partial scholarship for the athlete’s education is payment enough.

Even in light of major concerns with that application, I’m inclined to agree with the overall fairness of that contractual transaction in theory. A college degree is something so many bright young Americans struggle to afford, let alone attain. But where is the equal exchange for the black-student athletes that do not graduate from these Division 1 institutions who make millions a year off of their jersey sales, television revenue, ticket prices, likeness promotions and contributions to the win column?

This national issue becomes a national racial issue for two reasons. First, because black-male student athletes make up more than half of the sports teams at these schools, it is fair to assume that they are the majority affected by its decision-making. Second, while the entire student-athlete body is potentially comprised of victims of capitalism at its finest, white-male student athletes are twice as likely to graduate within four years. Therefore, white-student athletes are arguably receiving just compensation, in the form of a degree for their work on the field and court. The African-American community, or American community for that matter, is not looking for and does not expect the NCAA and Department of Education leaders to create a simple solution to this problem. There isn’t one. The assumption of responsibility by the NCAA and Division 1 institutions for these more than marginal racial gaps in the opportunity of higher education for black-male student athletes is all that is being called for.

[1] Comeaux, E., & Harrison C. K., Faculty and Male Student Athletes: Racial Differences in the Environmental Predictors of Academic Achievement, Race, Ethnicity and Education, 10(2), 199-214 (2007).

[2] Id.


Pay Me What I Deserve: Restitution for Victims of Sex Trafficking

April 14, 2015

By: Jessica Petitt

Photo credits: http://www.jlcd.org/advocacy

Photo courtesy of http://www.jlcd.org/advocacy.

Trapped. Trapped in a life of misery; often beaten, starved, and forced to work as prostitutes or take grueling jobs as migrant, domestic, restaurant, or factory workers with little or no pay. This is the true definition of human trafficking according to the FBI’s annual report. This is what is now considered the epitome of modern day slavery and what many individuals, predominantly women, are facing within the realms of North Carolina, the United States, and all around the world.

The State of North Carolina is known for many things, sex trafficking typically not being one of them. However, North Carolina is ranked the eighth highest state in the country where sex trafficking occurs. Charlotte, in particular, is a major international transportation hub for traffickers due to the very close proximity to major highways such as I-85 and I-77, which lead to Miami, Atlanta and D.C. Traffickers typically target the area because victims can be picked up and taken quickly, making it very hard to find and prosecute the people involved in taking these individuals. [1] Moreover, Charlotte has numerous sporting and entertainment events throughout the year, a large agricultural economy, and proximity to major airports not just in Charlotte, but also in Raleigh and Durham.When these major events take place women are typically brought into town by the carload and sold to interested buyers in town.

Many women will never overcome being a victim of sex trafficking, but thankfully some do. This global issue has gained widespread support from many activists and churches attempting to educate the general population and raise funds for these individuals who have been affected by trafficking. The legislature has taken these steps even further by implementing laws and regulations under the Trafficking Victims Protection Act, to compensate survivors of human trafficking and allowing them to file suit against a defendant requesting monetary restitution. Federal courts must now consider an order of restitution for the benefit of victims. [2] For most of these survivors, a restitution award will be their best and only opportunity to obtain the compensation necessary to assist them in rebuilding their lives.

What is Restitution & How is it Calculated?

Restitution in general is defined as: returning to the proper owner property or the monetary value of loss. [3] Sometimes restitution is made part of a judgment in negligent or contract cases. In criminal cases, one of the penalties imposed is requiring return of stolen goods to the victim or payment to the victim for harm caused. Restitution essentially means restorationin the judicial system. A victim is restored when she is placed in a position she would have been but for the defendant’s unjust enrichment upon services provided.

The Victim’s of Trafficking & Violence Protection Act of 2000 (“TVPA”),which has been adopted within the State of North Carolina, focuses on how to calculate the victim’s economic losses. When it comes to lost income, “the term ‘full amount of the victim’s losses’ . . . shall . . . include the greater of the gross income or value to the defendant of the victim’s services or labor or the value of the victim’s labor as guaranteed under the minimum wage and overtime guarantees of the Fair Labor Standards Act.” Where the value of the victim’s labor to the defendant cannot be easily determined, typically as in the case of forced prostitution, restitution may be awarded in the amount of the defendant’s ill-gotten gains. Other courts have applied an alternative formula for compensating victims based upon the theory of unjust enrichment. This relief can be particularly favorable in sex trafficking cases where the fundamental nature of the work is illegal and victims are unable to benefit from a prevailing wage standard.

Problems with Implementation

 Despite mandatory restitution laws, courts rarely award trafficking victims lost wages. Moreover, awards that involve sex are the least likely to receive monetary awards, even when the victims are children. Many defense lawyers often argue victims of sex trafficking do not deserve restitution, because the work they performed is illegal. The law requires a human trafficking restitution award to include whichever is greater: the value of the victim’s work under the Fair Labor Standards Act (“FLSA”) or the value to the defendant of the services the victim was forced (or induced, in the case of children) to provide. The value to a defendant of commercial sexual services tends to greatly exceed minimum wage. One would expect restitution amounts in sex trafficking cases to be vastly greater than those awarded in forced labor cases; however, this is rarely the case. The TVPA’s mandatory restitution provision is frequently overlooked, leaving trafficking victims empty-handed and deprived of resources that would enable them to start their lives over again.

The Human Trafficking Pro Bono Legal Center, in collaboration with WilmerHale, conducted an in-depth examination of all federal criminal human trafficking cases brought between 2009 and 2012. A total of 306 federal indictments for human trafficking were identified between 2009 and 2012. The data showed that restitution was awarded in just 36 percent of cases. [4] This research further shows the disturbing result that restitution is rarely awarded in general. And the small sum that has been awarded, which is less than $3 million per year on average for each of the four years, should convey how underserved the rights of trafficked victims are being held. Granted, $3 million sounds like a hefty price tag, but in reality it is miniscule compared to the amount traffickers are making on these women. Sex trafficking is the fastest growing business of organized crime with an estimated revenue of $32 billion annually, or $87 million a day. [5] So let’s do the math: if a trafficker had four women working seven days a week, meeting quotas of $500 per night they would make $632,000 in one year.

To bring this issue closer to home, according to a recent Newsweek Article, a woman reported to be named Janet, was forced into prostitution in Mexico before she was brought to the United States. Once arriving in United States, Janet was brought to a farm labor camp located just outside the city limits of Charlotte, NC. Janet was transported every day from her brothel in Charlotte, to farm labor camps where she was forced to sleep with men from 7 P.M. at night until 3 in the morning. She was forced to sleep with sometimes as many as fifty men per day. Janet’s pimp was eventually arrested and sentenced to 15 years behind bars, plus supervised release. He must register as a sex offender and was ordered to pay Janet $1.2 million in restitution, which will come from the money he made as a pimp and whatever he makes in prison job programs.

Photo courtesy of Newsweek.

Photo courtesy of Newsweek.

Since when did Mandatory become Discretionary?

While Janet may have been successful in receiving an award against her trafficker, most trafficked individuals are not so lucky. It has been more than a decade since this legislation was passed, but courts still mismanage TVPA’s restitution provision, specifically prosecutors. A key determinant of whether and how much the defendants are ordered to pay restitution to any human trafficking victims depends on how hard the prosecutors fight for monetary compensation—even if it is even fought for at all. According to the Wilmerhale study, prosecutors failed to request any compensation in nearly half of the trafficking indictments that were brought in the federal criminal courts over a four-year span. The average court order in sex trafficking cases only awarded victims about $46,000, which is drastically lower than the $214,000 obtained in forced labor cases.

Despite the fact that restitution is mandatory under the statute, the question of whether it should be awarded–both on the facts of a particular case and as a policy matter–is nonetheless frequently debated in restitution hearings. While many prosecutors successfully advocate for restitution, others are not clear on the law when called upon to defend restitution, particularly in sex trafficking cases. As stated above, nearly half do not request restitution at all.

In sex trafficking cases, disconnect between the illegality of the underlying activity and the legal requirements that victims receive compensation provides ample opportunity for defense attorneys to object to restitution. Some defense attorneys consistently dispute that sex trafficking victims are not deserving of restitution. Arguments have even been made that compensation encourages women to be prostitutes.

Is this really the changed mindset and reform we hoped to see with trafficked individuals seeking to change their lives and overcome horrific crimes committed against them when legislators passed this legislation? Do we really think this is the best we can do to end trafficking and stop this massive $32 billion dollar annual industry that is stealing the lives of people we care about? There are numerous local support groups who are working tirelessly to bring awareness to the city of Charlotte, the Polaris Hotline being is one of them. This nonprofit organization is available for questions and tips and can even activate task forces in crises. The United Family Services is another Charlotte nonprofit organization that provides services to individuals and families who are victims of trafficking. The United Family Services provides a shelter in Charlotte, as well as counseling and protective services. The more people know about trafficking, the better. If you, or someone you know, has become a victim to trafficking, please contact the National Human Trafficking Hotline: (888)-3737-888.

[1] http://www.wsoctv.com/news/news/special-reports/9-investigates-human-trafficking-happening-charlot/nN2X4/#__federated=1

[2]http://www.abajournal.com/news/article/courts_rarely_awarded_sex_trafficking_victims_compensation_study_finds/

[3] http://www.restorativejustice.org/university-classroom/01introduction/tutorial-introduction-to-restorative-justice/outcomes/restitution

[4]http://www.wilmerhale.com/uploadedFiles/Shared_Content/Editorial/Publications/Documents/Human-Trafficking-When-Mandatory-Does-Not-Mean-Mandatory-2014.pdf

[5] https://www.charitysub.org/sex-trafficking-in-the-us


The Lost Ones

April 9, 2015

By: Suzette L. Steptoe

If the first woman God ever made was strong enough to turn the world upside down all alone, together women ought to be able to turn it right side up again.”

– Sojourner Truth

During the latter part of the 19th and into the early 20th centuries, the attitude of most of the Suffragettes (women who advocated suffrage for women and voting rights) was that minority women should not be included in the movement.[1] After the passage of the 15th Amendment in 1870, prominent Suffragettes such as Elizabeth Cady Stanton,

“Demanded — in the true liberal tradition — access to the mainstream of American society in terms of professions, education, law, politics, and property. [She] fought to end the barriers that denied American citizens their rights purely on the basis of sex. [However, she wrote fiery letters and gave speeches denouncing the passage of any law that allowed Black men to vote before] women such as herself; the white, middle-class, culturally if not religiously protestant, propertied and well-educated.”[2]

This is important to note because it not only speaks to the racial divide but also the divide within the Suffrage movement.

The year 1920 changed the face of the American electorate forever. After nearly a century of protesting and legal battles, Tennessee ratified the 19th amendment. Tennessee’s ratification allowed the amendment to pass its final hurdle of obtaining the agreement of three-fourths of the states and resulted in the biggest achievement for American women at that time the right to vote. Sadly, it did very little in advancing women towards equality in other areas.

In 1954, the U.S. Supreme Court handed down its decision in the case of Brown v. Board of Education that said the “separate but equal” theory was contrary to the 14th Amendment’s Equal Protection Clause and was therefore unconstitutional.[3] The impact of this decision was felt across the country and it became the driving force behind the movement now known as the Civil Rights Movement. This movement prompted citizens to protest and demand bans on all forms of discrimination including voting, equal access, and workplace equality.

Women protesting during the Feminist Movement in 1920. Photo courtesy of the Alice Paul Institute.

Suffragettes protesting in 1920. Photo courtesy of the Alice Paul Institute.

The feminist movement allowed more women to appear in the workforce, however, the movement did very little in the way of ensuring these women would earn the salaries their male counterparts were earning for the same work performed. Although there was virtually no way to explain this beyond speculation, some economists point to the hundreds of studies that have consistently found that a large portion of the pay differences could be attributed to gender discrimination. And historically, these differences were easily attributed to the custom of men supporting the family financially by working outside of the home while women worked within the home providing domestic support. It was assumed that, because women worked within the home, they did not have the opportunity to acquire the experience or education that men possessed. Economists felt that this assumption could be dispelled once women acquired the same levels of education and experience as men.

In 1961, President John Kennedy established the President’s Commission on the Status of Women (“Commission”). The primary goal of the Commission was to review employment policies in place for women and address the labor laws regarding working hours and wages and the lack of education for working women. The Commission’s findings did not itself bring about immediate changes but it was very influential in spawning many state commissions of the status of women, which promoted more equal opportunities for women. Prior to the Commission’s termination in 1963, Congress passed the Equal Pay Act which made it illegal for employers to pay women less than men for the same duties performed. Additionally, the ruling in Supreme Court case of Ledbetter v. Goodyear Tire and Rubber Co. brought the wage gap issue – the statistical 80 cents on each dollar that women were paid compared to men – into focus and although the Supreme Court ruled against Lilly Ledbetter (based on its interpretation of the statute of limitations to file a lawsuit), Congress later passed the Lilly Ledbetter Fair Pay Act of 2009, which gave women more leeway to fight discriminatory pay.[4]

Because of these Acts, all women have somewhat fared better in terms of access to a variety of occupations, career advancement and income. Unfortunately, the wage difference continued as, in addition to experience, men were more likely to earn bachelors, masters and professional degrees. However, by the 1970’s, women began to make rapid gains that continue to increase and according to the National Center for Education Statistics, women earned twice as many college degrees than their male counterparts with females earning more than 52% of all degrees between 1999-2000. However, minority women earned, on average, 65% of associate’s degrees, approximately 64% of bachelor’s degrees and 60% of all doctorate degrees.

The Women’s Movement came on the heels of the Civil Rights Movement, and due to the efforts of both, legislation was passed giving women access to a large variety of occupations. White women seized this opportunity and gained entry into the workforce in unprecedented numbers and continue today to reap the fruits of the Movement’s labor while minority women, who fought the same battles, have not been so well rewarded. Between 1979 and 2013, inflation-adjusted earnings (also called constant-dollar earnings) rose by 31% for White women, compared with an increase of 20% for Black women and 15% for Hispanic women. As late as the fourth quarter of 2014, the median weekly earnings for White women was $738 with minority women averaging $573. Thus, even though minority women hold a higher percentage of earned degrees and are as experienced as their white female counterparts, in addition to earning a fraction of what men earn, minority women consistently earn approximately 31% lower salaries than White females in the same positions. These income disparities highly suggest that the Movements did not create a level playing field and it did little to eliminate workplace racism and sexism.

It is true that discriminatory practices inherent in workplace policies receive some attention from policy makers, but the focus is typically women in general or White women. Somehow, minority women, a protected class for which the Civil Rights and Women’s Movements should have safeguarded, were once again cast aside. Regardless of their educational background and skills, minority women are systematically relegated to the lower echelon of the salary hierarchy and will remain there until this issue is addressed in its proper context. The Civil Rights Movement allows minority women to stand at the door of equality but nobody thought to give them the key that actually unlocks the door.

[1] Lori D. Ginzberg, Elizabeth Cady Stanton: An American Life, (Hill and Wang 2009).

[2] Id.

[3] Brown v. Board of Education, 347 U.S. 483 (1954).

[4] Ledbetter v. Goodyear Tire & Rubber Co., 550 U.S. 618 (2007).


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