October 15, 2020 MEMBER OP-ED

I Dissent

Angela J. Scott, 2020-21 Section Chair

I thought my first Chair’s Column, scheduled to be published in the middle of a global pandemic and on the eve of the 2020 election, would naturally be about Voting Rights. More specifically, I had hoped it would be a great place to highlight the CRSJ Multi-Component Service initiative and the efforts of CRSJ Section members who are working hard to ensure that all eligible voters are able to cast their ballots without health risks, obstruction and suppression.

But subsequently, Justice Ruth Bader Ginsburg (“RBG”) died. So, I became committed to expanding upon the reflections that I wrote on the evening of her passing. I would write about how courageous I viewed her opinions and how she likely began her legacy of meaningful dissents while she was a member of this very section. One of the unique things that stood out about her was her refusal to remain silent, both prior to taking the bench and afterwards. On issues of equality – mostly gender – especially when the law was flawed or inequitable in its application, RBG spoke out. So, I want to ensure that her legacy – both within this section and on the bench – serves as an inspiration for our work within CRSJ and our responsibility as lawyers who are committed to equality for all.

And then, after a long, six-month delay, the grand jury announced its decision in the Breonna Taylor killing. I think we can all agree that under no circumstance should an innocent person go to sleep in her bed and not see another day because law enforcement barges into her home and kills her. Yet on September 23, 2020, we learned that no individual will be held criminally responsible for her death. We all know, much like six decades ago when Emmett Till’s murderers were acquitted, that this outcome represents a tremendous failure in our criminal justice system. In fact, this outcome is precisely what injustice looks like. So, I am taking this opportunity to  speak out about this injustice, because failure to do so would be inconsistent with the missions of both the American Bar Association and our Civil Rights and Social Justice Section, and inconsistent with the standard to which I hold myself. So inspired by RBG and her longstanding and courageous approach to inequality, including her refusal to remain silent when injustice exists, I dissent.

As a lawyer, I do not dissent — or express my disappointment in our justice system — simply because I disagree with an outcome, especially when I do not have all the facts. I do, however, dissent when gross injustices occur, and the criminal justice system provides no effective remedy. There may be disagreement about the decision in this case, but for me and many others, it is clear an injustice occurred. As a lawyer who is honest, I am acknowledging that the outcome, one which is unacceptably common for African Americans, is unfair. I will continue to work to improve the structures within our legal system which permit such atrocities.

As a former prosecutor, I want to make sure I am clear. I do not dissent to police, law enforcement or the protection and service they are tasked with providing. I do, however, dissent to police officers playing the role of officer, prosecutor, judge, jury and executioner, and I dissent to the flaws in the system that enables it.

As a civil rights attorney, I do not dissent to the grim fact that in addition to African Americans the police kill people of all races, genders, ages, religions and sexual orientations. I acknowledge that this is an unfortunate truth. I do, however, dissent to the failure to acknowledge the disproportionate rate that unarmed African Americans are killed by police and the clear racial disparities that exist in the criminal justice system operates. This, too, is an unfortunate truth. When a policy, practice or structure of a system adversely impacts individuals on the basis of race or ethnicity, the discrimination –regardless of intent—must be acknowledged and confronted by our profession.

I think Dr. Martin Luther King, Jr. had it right when he said, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.” Silence does not equal neutrality. Silence is not even complicity. Instead, silence is affirmation. As members of the ABA, we are tasked with increasing the public understanding of and respect for the rule of law, the legal process and the legal profession. But we compromise our integrity when we fail to acknowledge when the legal process falls short, creating unjust results. And when those unjust results continue to adversely affect one race of people, and we don’t acknowledge it, our goal of assuring meaningful and equal access to the justice system is not achieved. So, in response to my fellow members of the bar who continue to think that silence is an appropriate reaction to these matters, I dissent.

Acknowledgement of racial injustice, both past and present, is a very necessary first step to ending it and healing. So, in acknowledgement of the injustice that Breonna Taylor (June 5, 1993 – March 13, 2020) and all of the unarmed Black people whose deaths were caused by law enforcement in the last 10 years, including:

David McAtee, August 3, 1966 - June 1, 2020; George Perry Floyd, October 14, 1973 - May 25, 2020; Dreasjon “Sean” Reed, 1999 - May 6, 2020; Michael Brent Charles Ramos, January 1, 1978 - April 24, 2020; Breonna Taylor, June 5, 1993 - March 13, 2020; Manuel “Mannie” Elijah Ellis, August 28, 1986 - March 3, 2020; Atatiana Koquice Jefferson, November 28, 1990 - October 12, 2019; Emantic “EJ” Fitzgerald Bradford Jr., June 18, 1997 - November 22, 2018; Charles “Chop” Roundtree Jr., September 5, 2000 - October 17, 2018; Chinedu Okobi, February 13, 1982 - October 3, 2018; Botham Shem Jean, September 29, 1991 - September 6, 2018; Antwon Rose Jr., July 12, 2000 - June 19, 2018; Saheed Vassell, December 22, 1983 - April 4, 2018; Stephon Alonzo Clark, August 10, 1995 - March 18, 2018; Aaron Bailey, 1972 - June 29, 2017; Charleena Chavon Lyles, April 24, 1987 - June 18, 2017;  Fetus of Charleena Chavon Lyles (14-15 weeks), June 18, 2017; Jordan Edwards, October 25, 2001 - April 29, 2017; Chad Robertson, 1992 - February 15, 2017; Deborah Danner, September 25, 1950 - October 18, 2016; Alfred Olango, July 29, 1978 - September 27, 2016; Terence Crutcher, August 16, 1976 - September 16, 2016; Terrence LeDell Sterling, July 31, 1985 - September 11, 2016; Korryn Gaines, August 24, 1993 - August 1, 2016; Joseph Curtis Mann, 1966 - July 11, 2016; Philando Castile, July 16, 1983 - July 6, 2016; Alton Sterling, June 14, 1979 - July 5, 2016; Bettie “Betty Boo” Jones, 1960 - December 26, 2015; Quintonio LeGrier, April 29, 1996 - December 26, 2015; Corey Lamar Jones, February 3, 1984 - October 18, 2015; Jamar O’Neal Clark, May 3, 1991 - November 16, 2015; Jeremy “Bam Bam” McDole, 1987 - September 23, 2015; India Kager, June 9, 1988 - September 5, 2015; Samuel Vincent DuBose, March 12, 1972 - July 19, 2015; Sandra Bland, February 7, 1987 - July 13, 2015; Brendon K. Glenn, 1986 - May 5, 2015; Freddie Carlos Gray Jr., August 16, 1989 - April 19, 2015; Walter Lamar Scott, February 9, 1965 - April 4, 2015; Eric Courtney Harris, October 10, 1971 - April 2, 2015; Phillip Gregory White, 1982 - March 31, 2015; Mya Shawatza Hall, December 5, 1987 - March 30, 2015; Meagan Hockaday, August 27, 1988 - March 28, 2015; Tony Terrell Robinson, Jr., October 18, 1995 - March 6, 2015; Janisha Fonville, March 3, 1994 - February 18 2015; Natasha McKenna, January 9, 1978 - February 8, 2015; Jerame C. Reid, June 8, 1978 - December 30, 2014; Rumain Brisbon, November 24, 1980 - December 2, 2014; Tamir Rice, June 15, 2002 - November 22, 2014; Akai Kareem Gurley, November 12, 1986 - November 20, 2014; Tanisha N. Anderson, January 22, 1977 - November 13, 2014; Dante Parker, August 14, 1977 - August 12, 2014; Ezell Ford, October 14, 1988 - August 11, 2014; Michael Brown Jr., May 20, 1996 - August 9, 2014; John Crawford III, July 29, 1992 - August 5, 2014; Eric Garner, September 15, 1970 - July 17, 2014; Dontre Hamilton, January 20, 1983 - April 30, 2014; Victor White III, September 11, 1991 - March 3, 2014; Gabriella Monique Nevarez, November 25, 1991 - March 2, 2014; Yvette Smith, December 18, 1966 - February 16, 2014; McKenzie J. Cochran, August 25, 1988 - January 29, 2014; Jordan Baker, 1988 - January 16, 2014; Andy Lopez, June 2, 2000 - October 22, 2013; Miriam Iris Carey, August 12, 1979 - October 3, 2013; Barrington “BJ” Williams, 1988 - September 17, 2013; Jonathan Ferrell, October 11, 1989 - September 14, 2013; Carlos Alcis, 1970 - August 15, 2013; Larry Eugene Jackson Jr., November 29, 1980 - July 26, 2013; Kyam Livingston, July 29, 1975 - July 21, 2013; Clinton R. Allen, September 26, 1987 - March 10, 2013; Kimani “KiKi” Gray, October 19, 1996 - March 9, 2013; Kayla Moore, April 17, 1971 - February 13, 2013; Jamaal Moore Sr., 1989 - December 15, 2012; Johnnie Kamahi Warren, February 26, 1968 - February 13, 2012; Shelly Marie Frey, April 21, 1985 - December 6, 2012; Darnisha Diana Harris, December 11, 1996 - December 2, 2012; Timothy Russell, December 9. 1968 - November 29, 2012; Malissa Williams, June 20, 1982 - November 29, 2012; Noel Palanco, November 28, 1989 - October 4, 2012; Reynaldo Cuevas, January 6, 1992 - September 7, 2012; Chavis Carter, 1991 - July 28, 2012; Alesia Thomas, June 1, 1977 - July 22, 2012; Shantel Davis, May 26, 1989 - June 14, 2012; Sharmel T. Edwards, October 10, 1962 - April 21, 2012; Tamon Robinson, December 21, 1985 - April 18, 2012; Ervin Lee Jefferson, III, 1994 - March 24, 2012; Kendrec McDade, May 5, 1992 - March 24, 2012; Rekia Boyd, November 5, 1989 - March 21, 2012; Shereese Francis, 1982 - March 15, 2012; Jersey K. Green, June 17, 1974 - March 12, 2012; Wendell James Allen, December 19, 1991 - March 7, 2012; Nehemiah Lazar Dillard, July 29, 1982 - March 5, 2012; Dante’ Lamar Price, July 18, 1986 - March 1, 2012; Raymond Luther Allen Jr., 1978 - February 29, 2012; Manual Levi Loggins Jr., February 22, 1980 - February 7, 2012; Ramarley Graham, April 12, 1993 - February 2, 2012; Kenneth Chamberlain Sr., April 12, 1943 - November 19, 2011; Alonzo Ashley, June 10, 1982 - July 18, 2011; Derek Williams, January 23, 1989 - July 6, 2011; Raheim Brown, Jr., March 4, 1990 - January 22, 2011; Reginald Doucet, June 3, 1985 - January 14, 2011; Derrick Jones, September 30, 1973 - November 8, 2010; Danroy “DJ” Henry Jr., October 29, 1990 - October 17, 2010; Aiyana Mo'Nay Stanley-Jones, July 20, 2002 - May 16, 2010; Steven Eugene Washington, September 20, 1982 - March 20, 2010 and Aaron Campbell, September 7, 1984 - January 29, 2010,

I dissent.

Note that I am not opining on the specifics of each case or whether the individuals committed crimes that deserved prosecution. I am simply emphasizing that they were not granted the meaningful opportunity to access the justice system, so that a legal determination of their guilt or innocence could be established by the criminal justice system. In these situations, the question should never be whether the individual was guilty of a crime of some sort. Instead, the question is whether the individual had equal access to the same rights our criminal justice system guarantees all people. Disproportionately, they did not.  Disproportionately, and far too often, African Americans do not.

As members of the Civil Rights and Social Justice Section, what can you do? What does dissent look like for us? The ABA and this Section have a longstanding history of calling out injustice by passing policies through the ABA House of Delegates. In August, the American Bar Association dissented when the House of Delegates passed our Section’s policing and qualified immunity policies.  These will prove to be effective miles on the road to change. But we have to remain consistent and we have to continue to speak out until change occurs. As a Section, we can speak out by raising these issues through our programming—including webinars, seminars, and podcasts. Likewise, there are numerous opportunities to write. As a member of CRSJ, the opportunities to make a difference are endless so do not remain silent. As we embark upon this historic bar year, I encourage you to channel the same passion that was within RBG and so many others.  The Honorable John Lewis, our dear friend and 2019 Thurgood Marshall Award recipient said, “When you see something that is not right, not fair, not just, you have to speak up. You have to say something; you have to do something.” I look forward to working with you this year.

Angela J. Scott is the 20-21 Chair of the ABA Section of Civil Rights and Social Justice and past member of the ABA Commission on Disability Rights.  The views expressed in this article are her own opinions. She has written this column in her personal capacity and not on behalf of her employer, the U.S. Department of Health and Human Services, or any component of the U.S. government.