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Aint No More Charles Hamilton Houston’s


By Torrance Stephens

Once upon a time there were activist warrior scholars who served the needs and protected African Americans against the onslaught of laws designed to subjugate, marginalize and mass incarcerate this population disproportionately to their representation and the occurrence of such crimes. Most of these involved rights proclaimed under the constitution and dealt with receiving an equal education.

As many know, during slavery, a slave was not allowed to learn to read; it was illegal. Whites didn’t want black slaves to read and write because they might be encouraged to run away. In addition, People feared that slaves who could read would be more rebellious. At the time of the Civil War, only 1 or 2 percent of slaves were able to read and write meaning that Illiteracy was one of the worst handicaps of being a slave. In most cases, outside of having hands or tongues cut out or being blinded, death was the punishment for a slave learning to read.

To the slave, the ability to read and write meant freedom—if not actual, physical freedom, then intellectual freedom—to maintain relationships amongst family members separated by the slave trade. These men and women took great risks to empower themselves, and in some cases, achieved freedom. However after slavery a dark period emerged and well up into the 20th century, African Americans were still disenfranchised by the legal burden of obtaining an equal education. Charles Hamilton Houston was one of the bright lights of activism that addressed these social ills.

WEB Dubois wrote that “The problem of the twentieth century is the problem of the color line.” I would suspect that he would say that in the 21st century this would continue to be true but add something implicating the impact of the criminal justice system on the worsening of this problem. To put it plainly, it is like comedian Tony Rock stated, “People always say I act like I am afraid of the police, I am afraid of the police.”

If there was a time in which our community need the aspiring efforts of a Charles Hamilton Houston it is now. Who was Charles Houston; well he was a lawyer, educator and a warrior. He was the man who devised and led the legal strategy leading to the end of legalized racial segregation in the United States. He also taught and mentored a generation of lawyers, including Thurgood Marshall, James Nabrit, Spottswood Robinson, and A. Leon Higginbotham. It was his work and effort that laid the legal groundwork that led to 1954 U.S. Supreme Court decision in Brown v. Board of Education that made racial segregation in public primary and secondary schools unconstitutional.

He completed high school at the age of 15 and graduated from as one of six valedictorians from Amherst College in Massachusetts in 1915. After serving in World War I as a second lieutenant in field artillery and receiving an honorable discharge from the army, he enrolled at Harvard Law School in 1919 where he earned his Bachelor of Laws in 1922 and a doctorate in 1923. Truth be told, Houston, and not Barack Obama was the first black editor of the Harvard Law Review.

He fought to end legalized discrimination and, in particular, the “separate but equal” doctrine accepted by the U.S. Supreme Court in 1896 in Plessy v. Ferguson. He proceeded step by step and from 1935 to 1940, he successfully argued several cases using this strategy, including Murray v. Maryland, (1936) which resulted in the desegregation of the University of Maryland’s Law School and Missouri ex rel Gaines v. Canada, another case that Houston argued before the Supreme Court, declared that the scholarships Missouri offered to African Americans to attend out-of-state graduate schools did not constitute equal admission. In the end, the U.S. Supreme Court ordered the admission of a black student to the Law School at the University of Missouri (1938).

Thurgood Marshall took over where Houston left of as NAACP’s Special Counsel. In Smith v. Allwright, Marshall successfully challenged “white primaries,” which prevented African Americans from voting in several southern states. In Morgan v. Virginia (1946), Marshall won a case in which the Supreme Court struck down a state law that enforced segregation on buses and trains that were interstate carriers. In 1948 he won Shelley v Kraemer, which ended the enforcement of racially restrictive covenants, a practice that barred blacks from purchasing homes in white neighborhoods. In 1950, he won cases that struck down Texas and Oklahoma laws requiring segregated graduate schools in Sweatt v. Painter and McLaurin v. Oklahoma. “In those cases, a unanimous U.S. Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment required those states to admit black students to their graduate and professional schools.”

Houston’s said “A lawyer’s either a social engineer or he’s a parasite on society,” the formers whose goal was to focus on “bettering conditions of the underprivileged citizens.” Like I said in the intro we do not have any more of these types in Law. They say we have Obama, but he went for the presidency making one wonder which he would be according to the reasoning of Mr. Houston. We have growing evidence that the current administration will not address these issues. Travon Martin aside, there is a history of injustice deserving our attention. The store clerk, who shot Michael Haynes II in the back and murdered him apparently during a dispute over the price of condoms, The Georgia business owner onto John McNeil, in jail for shooting Brian Epp, who trespassed onto his Cobb County, Georgia property in December 2005 while waving a box cutter and threatened McNeil’s son, after being asked to leave his property multiple times before firing in self-defense. Not to mention the countless unknown cases that railroad black men under the guise of justice.

What is required is what Houston and Marshall did: a structured plan to address the legal burden of what leads to the disproportionate mass incarceration of African Americans. Today such an approach would have to tackle several current legal opinions:

Swain v. Alabama, 380 U.S. 202 (1965): Robert Swain, nineteen, year old black male, was indicted, tried and convicted of raping a white woman in Talladega County, Alabama, and received the death sentence. There had been five African Americans on the grand jury panel of thirty-three, two of whom served on the grand jury which indicted Swain. Of those in the county eligible for jury selection for grand and petit juries, 26% are Negroes, while the jury panels since 1953 have averaged 10% to 15% African Americans. Of the eight on the venire, two were exempt, and six were peremptorily struck by the prosecutor. The court held that: A defendant in a criminal case is not constitutionally entitled to a proportionate number of his race on the trial jury or the jury panel and that purposeful racial discrimination is not satisfactorily established by showing only that an identifiable group has been underrepresented by as much as 10%. The courts conclusion was that there is no evidence in this case that the jury commissioners applied different jury selection standards as between people based on race.

Purkett v. Elem (94-802), 514 U.S. 765 (1995): During jury selection, he objected to the prosecutor’s use of peremptory challenges to strike two black men from the jury panel, an objection arguably based on Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor explained his strikes: “I struck [juror] number twenty two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to not be a good juror for that fact…I don’t like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me.” The Supreme Court upheld this was valid.

Then there are Batson v. Kentucky, 476 U.S. 79 (1986) and United States v. Armstrong (95-157), 517 U.S. 456 (1996) among others. Like I said, we cannot depend on the current administration to do anything albeit in his book “The Audacity of Hope,” Obama admitted his drug use and how it could have derailed his future. The president is quick to say he is against the disparity in the criminal justice system yet his actions prove otherwise. His first Chief of Staff, Rahm Emanuel increase funding for Clintons “COPS ON THE BEAT” program in 2007 when he co-sponsored the COPS Improvements Act of 2007 – Amends the Omnibus Crime Control and Safe Streets Act of 1968 to make grants for public safety and community policing programs (COPS ON THE BEAT or COPS program). Although Clinton claimed that this program was impactful in decreasing crime, a GAO report indicated if any reduction occurred in violent crimes it was barely 1 percent at a cost of $8 billion. Moreover, Worrall & Kovandzic (2007) showed that COPS spending had little to no effect on crime.

Two more suspect members of the team include Vice President Joe Biden and Attorney General Eric Holder. Biden has always been in the led of the war on drugs, on everything from marijuana to steroids. He even wrote the legislation that created the position of a national “Drug Czar”, and his Anti-Drug Proliferation Act provides 20-year prison sentences for folk who throw parties in their home if drug use occurs. In addition, he was a proponent of the Violent Crime Control and Law Enforcement Act in 1994, which allocated substantial funds for construction of new prisons, established boot camps for delinquent minors, and brought the death penalty for crimes related to drug dealing. Biden’s 1994 Omnibus Crime Bill included a provision allowing for the federal execution of drug kingpins, asserting that drug-related offenses were equivalent to, or worse than murder.

Eric Holder is no better than Biden or Emanuel. Holder, a former D.C. prosecutor, and the chief law enforcement officer in the U.S., complained that prosecuting the banking executives who caused the 2008 global financial crisis and subsequent deep recession was too difficult. But he is all game for marijuana. As U.S. Attorney in Washington, D.C., Eric Holder sought to raise marijuana penalties and restore mandatory minimum penalties for drug crimes. His plan was to set minimum sentences of 18 months for first-time convicted drug dealers, 36 months for the second time and 72 months for every conviction thereafter.

All I am saying is that we cannot wait for Obama, even if he is a black president with a past of self-admitted weed and drug use to protect the average black man on the street who are disproportionately targeted by the drug war and court system, to help us. We need another brave group of legal minds like Houston and Marshall to adeptly and shrewdly dismantle the new laws of modern Jim Crow. If either were living today, they would probable say the same about mass incarceration as Houston did education. “This fight for equality of educational opportunity (was) not an isolated struggle. All our struggles must tie in together and support one another. . . We must remain on the alert and push the struggle farther with all our might.”

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