What is judicial reform: Equal – Not equal

Liberty Bell with Philadelphia buildings

One of my concerns, over the years, has been the absence of ‘equal protection’ rights for Americans.

I live in Minnesota, and as an attorney I have for a decade represented Minnesotans who have attempted to assert their ‘equal protection’ rights, in both state and federal courts.

Many people do not realize that in addition to the US Constitution, each State has its own Constitution.  The US (federal) Constitution provides the “floor” – the level of individual rights below which the states cannot go.  States can provide more rights to their citizens.  That is, they can interpret their own Constitutions to provide for rights above the “floor” mandated by the federal constitution.

The Bill of Rights (the first 10 amendments to the US Constitution) secures for Americans those individual rights that were presumed before the creation of the nation state of America.  They were, at first, not included in the US Constitution, because they were presumed by the framers to have existed before the constitution was created.

To me, this philosophical foundation is important to understanding our democratic form of government and all of constitutional law.  The basic notion is this:  the public (that is, the citizenry, the private, non-government people) ceded its power to government, so it could to govern them in the collective good.  This transfer of power was not a gift.   This transfer of power was in exchange for the inalienable, individual rights that became enumerated in the Bill of Rights.

You can read my prior posts on this topic, in particular relating to the courts, and my version of judicial reform, by going to the category, “What is Judicial Reform?”

During the national discussion of the proposed constitution, some in the Americas grew doubtful – what if government ‘forgets’ that it promised us (the public) these inalienable, individual rights in exchange for the power?  What if government just starts to do whatever it wants with that power?  To address that concern, the individual rights were codified in the Bill of Rights.

Surely that was enough to protect each individual American, right?

The Bill of Rights supplements the three-branch structure of government found in the main body of the Constitution.  This has been referred to as a system of “self-governance.”  Of course, it is also called our democracy.

It is not a pure democracy (like that in the ancient city of  Athens), because even by the time the US Constitution was created, there were already too many people for each to have his or her own voice in the way the government daily governed.  In America, the founder created a system of representational democracy, meaning that we vote for representatives to carry our voice in the roundtable discussion that is known as the legislative branch.

But like the ancient Greeks, we Americans each retained our power to challenge government.  We are specifically permitted to tell our government that we disapprove of the way it is using the power that we entrusted it with.

Of course, we can also tell government how it can do better in the future.

Those are our rights.  A right is something of substance that we can enforce.  A right is useless (and it is not really a right), if we cannot enforce it.  For example, you don’t really have the right to freely speak, if you have to withstand years of government investigation and prosecution, because you spoke.

If we don’t remember these philosophical roots, in my opinion, we go quickly astray.  The risk is that once government has our power, that it will function by and for government, and ignore the original pact with the public that created its power in the first place.

In the Civil War reconstruction era, the Fourteenth Amendment was passsed by Congress, then adopted by the People.  It overruled the US Supreme Court’s decision in Dred Scott v. Sandford (1857), which had held that Black people could not be ‘citizens’ of the US.

The Fourteenth Amendment also contains what has become known as the “due process clause,” which restricted state and local government deprivations of life, liberty, or property.

The Fourteenth Amendment also contained what is now called the “equal protection clause.”  This phrase promised all Americans equal protection under the law.  It specifically mandated that each state provide equal protection to its citizenry.

This is all found in Section 1 of the Fourteenth Amendment:

Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No 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 due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis addded.)  Despite the plain language of the Fourteenth Amendment (a part of our constitution adopted by the People), the case law in the federal courts began to chip away at the right to equal protection.  Around the country, federal courts began to narrow and limit the plain language that promised equal protection for all.

Although a much longer discussion of the analysis federal courts used over the next 35 years to limit the plain language of the equal protection clause is warranted at some point, this post is intended as a summary.

In 1966, at the height of the ‘civil rights era,’ the US Supreme Court decided two cases on the same day:  City of Greenwood v. Peacock, 384 U.S. 808, and Georgia v. Rachel, 384 U.S. 780.  Lower federal courts have interpreted these cases somewhat differently.  See, for example, Perkins v. State of Miss., 445 F.2d 7 (5th Cir. 1972):

This sentence had led many interpreters of Peacock to conclude that the Supreme Court, despite the painstaking elaboration of removal criteria in Rachel, intended to limit the removal remedy exclusively to prosecutions in which the conduct charged as a criminal offense is protected by a Federal equal civil rights law (see discussion of the “scope of conduct” theory, infra).  It plainly did not.

Other lower federal courts cited to Rachel and Peacock to limit the removal of criminal cases by statute (the text of which tracks the Fourteenth Amendment almost exactly), based on the notion that Congress intended to benefit only the newly emancipated race.

This is just one example of how federal courts constrained the plain language of the equal protection clause.  For years, nearly every equal protection action brought under §1983, was dismissed based on the notion that the American seeking equal protection of the laws must first prove he was a member of “the” protected class, former slaves.

Since filing a removal petition of a state criminal case in 2002 (State v. Yeazizw (prosecuted by City of Minneapolis), 02-cv-4134), I have studied these phenomena.  My client base in state criminal cases has been largely African American.  Even if we assume that the intended beneficiary of the Fourteenth Amendment was the newly emancipated race, then how do we explain the record numbers of African Americans sent to prison, in clearly disproportionate numbers?  If that race was the intended beneficiary, then clearly we are viewing a failure.

In the year 2000, the US Supreme Court decided a case that could have set this right.  In City of Willowbrook v. Olech, 528 U.S. 562 (2000), in a PER CURIAM opinion, the High Court held:

The [equal protection] Clause secures every person within a State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by a statute’s express terms or by its improper execution.

528 U.S. 562 (2000), emphasis added, case here.

No longer did Americans need to prove they were former slaves to deserve the equal protection of the laws.  In fact, they no longer had to prove they were part of a protected class, at all.  Olech adopted the First Circuit’s doctrine, that any American can be a “class of one,” and demand equal protection – equal enforcement – of state laws.

This made sense.  Not only did Olech acknowledge the plain language of the Fourteenth Amendment (which we the Public adopted), it acknowledged a fundamental principal of our democracy:  that everyone is equal before the law.

So why hasn’t Olech had impact in the lower courts?  I leave scholars and jurists to ponder this question, which I will address in a later post.

As part of this look-back, I point out that in Peacock, the US Supreme Court, when narrowly construing the removal statute, listed other ways that Americans being wrongfully prosecuted in a state’s criminal justice system could come to the federal courts for help.  Sadly, nearly every avenue on this list is now gone.

The Peacock list (p. 383-84) Current state of the law
The US Supreme Court can accept the case on certiorari after the highest state court acts or declines to act, as occurred in Shuttlesworth v. Birmingham, 382 U.S. 87 (1965). “The US Supreme Court received 7,738 petitions for Writ of Certiorari (requests for case review) in 2008… This represents about a 20% increase over the number of cases submitted a decade earlier, and 234% more than the 2,313 the Court received in 1960.”  Opinions are written in about 75 of petitions filed (or around 1%).  Note 1 (emphasis added).
“Cases where Negroes are prosecuted and convicted in state courts can find their way expeditiously to this Court, provided they present constitutional questions.”  England v. Medical Examiners, 375 U.S. 411 (Concurrence by Douglas, J.) Not really….  In that case, plaintiff sought an injunction in federal district court, which abstained and sent the parties back to state court.  Supposedly, the plaintiffs could have come back to federal court after the state court ruled on the state question, but because the plaintiffs litigated their federal constitutional question in state court and lost there, they were  not able to litigate the constitutional question in federal court.  See also the Pullman abstention doctrine and the Rooker-Feldman doctrine.
If the state prosecution or trial on the charge of obstructing a public street or on any other charge would itself clearly deny their rights protected by the First Amendment, they may, under some circumstances, obtain an injunction in the federal court.  See Dombrowski v. Pfister, 380 U.S. 479. Although it’s true, injunction is appropriate in certain cases, the trend has been for federal courts to deny these motions, sending the litigant back to state court for the criminal case.  See also the discussion of the Heck bar, below.
If they go to trial and there is a complete absence of evidence against them, their convictions will be set aside because of a denial of due process of law. Thompson v. Louisville, 362 U.S. 199. That case was the grant of certiorari, very rare now (see above).
If at their trial, they are in fact denied any federal constitutional rights, and these denials go uncorrected by other courts of the State, the remedy of federal habeas corpus is freely available to them. Fay v. Noia, 372 U.S. 391. Uh, no.  See AEDPA.
If their federal claims at trial have been denied through an unfair or deficient factfinding process, that, too, can be corrected by a federal court. Townsend v. Sain, 372 U.S. 293. That was a habeas case.  See above.
Under 42 U.S.C. § 1983 (1964 ed.) the officers may be made to respond in damages not only for violations of rights conferred by federal equal civil rights laws, but for violations of other federal constitutional and statutory rights as well. Monroe v. Pape, 364 U.S. 167. In 1994, Heck v. Humphrey barred numerous such cases.  Other impediments to §1983 cases abound but are beyond the reach of this summary.


So despite the guilt list in Peacock (you know, we are blocking you here, but you have all these other avenues), the ways in which Americans were supposedly able to keep the state criminal justice system in check through the federal courts, most of those are effectively gone.

This has left our country in a state where state court judges can do, literally, whatever they want, ignore the federal constitution, put innocent Americans in prison, use the criminal justice system to protect police and other government workers from civil liability, knowing that statistically, they will likely get away with it.  (This is a summary, but it is based on a decade of observations and litigation in which I have vigorously fought these very issues.)

And sadly, Americans have had little, if anything, they can do about it.

This is not to blame any specific judge or even court.  It is to paint an overview, to perhaps inspire new ways.

Perhaps each of these abstention doctrines, over time, had a good motive.  Perhaps they were always, as they appear to be, a way to control the workload of the federal courts.  I understand that there are not resources to try every case twice.  And I believe federal judges are overworked (they are currently expected to manage crushing loads).  But the answer is more judges, not less justice.  If instead of paying to keep innocent people in prison each year, we used those public monies for more judges, we could solve this problem.

Or, even with limited resources, if now and then, federal judges granted a removal petition, or enjoined a state criminal action, it would send a deep, resounding message through the state courts, a message much louder than any individual voice can make on its own.

Collectively, these abstention doctrines, the federal courts’ unwillingness over the past 35 years to plow into the problems in the state criminal justice systems, needs a fresh look.


In the next post in this series, I’ll discuss the Minnesota Constitution’s “equal protection” clauses.

Note 1, see Wiki answers.com, here