When I think of civil rights, I initially think of a time when school lessons that encompassed a handful of heroes whose messages were reduced to “I have a dream.” Something very important was missing from those lessons – that there was (and still is) an ongoing civil rights movement. Untold numbers of people were (and still are) standing up and courageously joining the potentially fatal strife for access, opportunity, and escape from poverty. Looking back now, my leg up in life was apparent when compared with many of the kids in Cloquet, but that realization didn’t hit me until later in life.
I didn’t see the nature of the ongoing poverty and discrimination problem in part because of the school system that taught civil rights as a history lesson rather than a continuing social studies narrative. Our nation’s legacy of institutionalized oppression carries forward to this day in forms similar to those that brought the Civil Rights Movement.
The Civil Rights Movement should not simply be a subject in history class but should be a constant education in social studies. The Movement has now branched out into issues of privacy, and the right to a fair trial. As an attorney, I am vocal in protecting these and other basic civil rights.
A Little Privacy, Please
Freedoms infringed on by government or circumstance limit options and opportunities. Minnesotans face very real problems that stifle our access to progress. Privacy is one of the most inherent and important freedoms we have. In Minnesota, we recently faced warrantless cell phone data nabbing by Stingray and Kingfish data programs, the capture and suspicionless surveillance of license plates at the Mall of America, and the endless tirade of data breaches that have plagued us from Jimmy John’s to Sony’s Playstation. With today’s technology, everywhere we go and anything we do creates data that becomes a virtual tattoo, and is used, at will, with only a click-through End User License agreement to which Facebook and other applications force users to into.
Two cases, United States v. Jones and Riley v. California, illustrate missed opportunities for the State of Minnesota.
In Jones, a tracking device was placed on a vehicle outside the boundaries delineated in a warrant. The government argued that placing tracking device on someone’s vehicle was not a search under the Fourth Amendment. Despite the Court finding the placement to be a search, the tracking device was a major invasion of Jones’ privacy.
In Riley v. California, police searched a man’s personal cell phone without a warrant, and then attempted to incriminate him without any semblance of due process. No briefs in support of privacy were filed by the State of Minnesota. The Supreme Court’s decision was 9-0 in favor of individual privacy for electronic devices.
Our current Attorney General should have been right alongside decisions like Jones and Riley, driving the conversation to protect personal privacy and liberty but wasn’t. I get the feeling that these privacy issues simply don’t matter to people until Edward Snowden explains them in terms of dick pics sent to a partner.
The feeling that you are constantly watched negates dignity. Companies negligently lose data, fail to adhere to laws relating to the warrant process for electronic communications, and there doesn’t seem to be any ubiquitous legislative efforts to expand laws respecting Minnesotans and their need for privacy. The concept of privacy should encompass our digital footprints. The State should afford us complete control over our digital selves.
They’re Trying to Build a Prison
Along with the fight to end sexual and gender identity discrimination, there is a fight to end discriminatory law enforcement practices. Lawyers should interject themselves into places where law enforcement oversteps its boundaries and should hold governmental officials to the same standard as the people they represent and serve. Discriminatory law enforcement practices have congealed to constitute what Michelle Alexander and others call “the New Jim Crow.” The United States has the highest incarceration rate in the world, another terrible reminder of how far we have gone to criminalize our society. According to “One in 31, The Long Reach of American Corrections,” a Pew report released in 2009, 1 in 31 citizens are currently under some type of correctional control, a statistic follow-up reports confirmed. (See http://www.convictcriminology.org/pdf/pew/onein31.pdf)
A recent report by the ACLU reported black people in Minneapolis were:
- 11.5 times more likely to be arrested than a white individual for marijuana possession;
- 8.86 times more likely to be arrested than a white individual for disorderly conduct;
- 7.54 times more likely to be arrested than a white individual for vagrancy; and
- 16.39 times more likely to be arrested than a white juvenile for curfew/loitering.
During my time as board chair for Minnesota NORML, we sponsored a study to look at racial disparity of cannabis arrests. Minnesota 2020 found that, although use rates were similar, the disparity in enforcement was quite different. In 2011 black people were 6.4 times more likely to be arrested for cannabis possession than their white counterparts. (See Minnesota 2020’s Collateral Costs Report: http://www.mn2020.org/issues-that-matter/economic-development/collateral-costs-racial-disparities-and-injustice-in-minnesotas-marijuana).
The roots of the problem go deep and some rest in failed drug prohibition directly resulting from racist and discriminatory practices of the early 20th century. For those targeted by the prison industrial complex, the failed drug war is a sure-fire way to stamp them for the rest of their life. The drug war and the “New Jim Crow” are driving poverty and oppression.
Even an arrest for a low-level offense can make someone a negative economic unit within their community. I saw Minnesotans marched through the court system who walked out the other side branded for life. Most of them would not have seen the terrible unemployability and disenfranchisement if they were born into privilege or with a different color of skin.
I will be an attorney who is willing to publicly acknowledge these trends and move to resolve them. I feel called to openly work to end these types of disparaging trends. We must fight together to put an end to this system that cripples and impoverishes our citizens.
The Right to an Attorney
“They are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court, and the country man at plough.”
Unable to afford an attorney for his defense, Clarence Gideon received justice; the justice a person comes to expect from a drastic lack of funds. Gideon was found guilty for a felony charge in Florida and was to be sentenced after being pushed through the court system without a lawyer.
Minnesota’s very own Walter Mondale stepped in risking political suicide to stand by Gideon’s right to an attorney. I absolutely believe he made the right decision. Criminal law and procedure are convoluted enough to trip up even trained professionals, so anyone without a legal background is effectively doomed without a lawyer. The decision in Gideon is what probably led to the later decision in Miranda, and thus the Miranda warning of “you have a right to an attorney; if you cannot afford one, one will be appointed for you. Gideon went back through the lower court with an attorney and was found not guilty. Walter Mondale’s efforts were heeded.
But today, over 50 years after the decision in Gideon v. Wainright, the right to counsel is still impaired. Gideon would probably not qualify for a public defender under the current rules, and this is a serious problem that exacerbates the widening justice gap between those who can afford defense and those who cannot. Eyewitness misidentification, improper or unvalidated forensic science, false confessions, government misconduct, biased informants, and just plain bad lawyering give real reason for requiring adequate representation. While Justice Black probably never could have foreseen the massive expansion of mass incarceration. Since 1963 incarceration rates have exploded prosecutions have expanded because of the war on drugs and tough on crime measures.
I am looking for opportunities to persuade the court on breaches of Gideon’s protections but I also go a step further as to suggest that the legislature adopt the Brennan Center for Justice at NYU Law School’s “Eligible for Justice” recommendations for fixing these issues. (See: http://brennan.3cdn.net/c8599960b77429dd22_y6m6ivx7r.pdf).
Additionally, the Supreme Court should revisit the issue of non-attorney licensing to aid in providing more equal access to justice. The Minnesota Paralegal Association recently released a paralegal certification program, which offers a credential to educated and seasoned non-attorneys in an effort to confirm their competence in legal practice. Arizona, California, and Washington all have implemented limited licensing programs for areas such as family law and bankruptcy. There is no reason Minnesotans need to be denied access to justice because they can’t afford a lawyer, when there are professionals available to help them.
The work to solidify the law’s foundation in human dignity and respecting autonomy is continuous. Freedom requires security in one’s personhood and autonomy. Freedom is not an unattainable ideal. It is a concept that drives an individual’s ingenuity, creativity, and ability to produce solutions for society. Freedom cannot be bolstered when legal measures leave a person cabined in, surveilled, and unable to live life to its fullest. The government’s role in upholding civil rights is the most important one, and must be guided by the constitution.