Today, in Washington D.C., the Liberty and Justice for All Initiative wrapped up a conference at which churches have been asked to make racism and racially-motivated violence a thing of the past.
With that in mind, I stood before my class at Dedman School of Law at Southern Methodist University, where I am a regular invited guest lecturer, and set the groundwork for the students’ understanding of Race and the Death Penalty. I focused on two marriage equality cases decided by the Supreme Court to lay the foundation for the rest of the lecture. I want to share those cases with you today.
In 1881 a black man by the name of Tony Pace and his wife, Mary Cox, a white woman, were indicted under the Alabama Code, Section 4189, which in pertinent part read:
“If any white person and any negro, or the descendant of any negro to the third generation, inclusive, though one ancestor of each generation was a white person, intermarry or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary or sentenced to hard labor for the county for not less than two nor more than seven years.”
Both were sentenced to two years in jail. The U.S. Supreme Court upheld the convictions and penalties, stating:
“Whatever discrimination is made in the punishment prescribed in the two sections is directed against the offense designated and not against the person of any particular color or race. The punishment of each offending person, whether white or black, is the same.”
One might expect this in a Southern state in 1881, but for the Supreme Court to not have ruled against anti-miscegenation statutes is still disturbing to me.
Even more alarming was that this statute remained in the books in Alabama until 2000 and at that time, 41% of Alabama voters voted to maintain the law on the books! This despite the Supreme Court having ruled in Loving vs. Virginia in 1967, deeming anti-miscegenation laws unconstitutional.
Next, I took my students out to the West Coast and Perez v. Sharp , 32 Cal.2d 711 decided on Oct 1, 1948. This was California’s first anti-miscegenation statute, enacted in 1850, to be read along with two other statutes enacted at the same time, Those statutes read, in pertinent part, as delineated in the Perez opinion as follows:
“No black or mulatto person, or Indian, shall be permitted to give evidence in favor of, or against, any white person. Every person who shall have one-eighth part or more of Negro blood shall be deemed a mulatto, and every person who shall have one half of Indian blood shall be deemed an Indian.” (Stats. 1850, ch. 99, § 14, p. 230; repealed Code Civ. Proc., § 18, 1872.) “No black, or mulatto person, or Indian, shall be permitted to give evidence in any action to which a white person is a party, in any Court of this State. Every person who shall have one eighth part or more of negro blood, shall be deemed a mulatto; and every person who shall have one half Indian blood, shall be deemed an Indian.” (Stats. 1850, ch. 142, § 306, p. 455; repealed Code Civ. Proc., § 18, 1872.)
In 1854, this court held that Chinese (and all others not white) were precluded from being witnesses against white persons on the basis of the statute quoted above. (People v. Hall, 4 Cal. 399, 404.) The considerations motivating the decision [32 Cal.2d 720] are candidly set forth: “The anomalous spectacle of a distinct people [Chinese], living in our community, recognizing no laws of this State except through necessity, bringing with them their prejudices and national feuds, in which they indulge in open violation of law; whose mendacity is proverbial; a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown; differing in language, opinions, color, and physical conformation; between whom and ourselves nature has placed an impassable difference, is now presented, and for them is claimed, not only the right to swear away the life of a citizen, but the further privilege of participating with us in administering the affairs of our Government.” (People v. Hall, supra, at pp. 404-405.) For these reasons, therefore, “all races other than Caucasian” were held to be included in a statute referring only to a “black or mulatto person, or Indian.”
California courts are not alone in such utterances. Many courts in this country have assumed that human beings can be judged by race and that other races are inferior to the Caucasian. Respondent’s position is based upon those premises. He justifies the prohibition of miscegenation on grounds similar to those set forth in the frequently cited case of Scott v. State, (1869), 39 Ga. 321, 324: “The amalgamation of the races is not only unnatural, but is always productive of deplorable results. Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength, to the full blood of either race.” fn. 2 Modern experts are agreed that the progeny of marriages between persons of different races are not inferior to both parents. fn. 3 Nevertheless, even if we were to assume that inter-racial [32 Cal.2d 721] marriage results in inferior progeny, we are unable to find any clear policy in the statute against marriages on that ground.
Against this backdrop, we moved on to a concept that was shot down (no pun intended) in the case of People v. Du (Superior Court, L.A. Co., 1991, No. BA037738 and on appeal People v. Superior Court (Du), 7 Cal.Reptr.2d 177 (1992). A black teenager, Latasha Harlins was shot and killed by a 51-year-old Korean shop owner who accused the girl of shoplifting and was briefly pummeled by the teen. The shooting took place thirteen days after the Rodney King beating.
Mrs. Du was convicted on Voluntary Manslaughter and for using a deadly weapon in the commission of a felony. The judge sentenced Mrs. Du to five years probation, 400 hours of community service and a $500.00 fine. The district attorney didn’t actually use the words “Black Lives Matter” but the sentiment was the same. The judge wrote in rejecting the DA’s argument:
“Statements by the district attorney, (which) suggest that imposing less than the maximum sentence will send a message that a black child’s life is not worth protection, (are) dangerous rhetoric, which serves no purpose other than to pour gasoline on a fire.”
All of this occurring 23 years before the inception of the Black Lives Matter movement.
So as our communities of color seek, no cry out, for criminal justice reform, it comes from a history that I have outlined above. This is merely the tip of the iceberg.
According to Edwin Grimsley, a Case Analyst for The Innocence Project:
“Many of the consequences of how race affects the larger criminal justice system can be seen in innocence-related efforts. An analysis of the 297 DNA exonerations reveals minorities make up approximately 70% of those proven innocent through DNA testing. Similarly, African-Americans represent the vast majority of these exonerations – 63% of those exonerated by DNA testing.
Cumulative non-violent arrests can lead to future suspicion for violent crimes, as seen in the stories of those exonerated by DNA testing. A number of our clients who have been exonerated through DNA testing had their mugshot photos entered into a photo array lineup culminating in a misidentification. For example, Rickie Johnson of Louisiana had a mugshot on file because of a misdemeanor traffic violation. The victim identified his mugshot and he was later erroneously convicted of aggravated rape. In total, nearly 75% of the DNA exoneration cases involve an eyewitness misidentification – approximately 42% of which are cross-racial misidentifications. Research studies have shown how victims or witnesses can have difficulty identifying facial characteristics of a dissimilar race.
The attitudes depicted in the cases and statutes highlighted above, have led to a shameful environment of racism and implied bias that we all have been born into, bias and prejudice that is invisible to many of us because, like water to a fish, we are born into it.
I wholeheartedly pray that The United Methodist Church, through its Office of Christian Unity and Interreligious Relationships and The General Commission on Religion and Race, will take seriously the challenge outlined by our Pan-Methodist communions, and join in the continued battle to fight racism in our communities and in our pews.