COVID-19 continues to kill thousands of people across the United States and devastate families, with its enormous impact on Black and Brown communities. People of color are infected and dying at higher rates than white individuals. Unemployment soars for Black communities, while it is starting to fall for white individuals. A study from Brown and Harvard universities shows, as a result of the pandemic, Black children are further behind in school compared to white children. The pandemic continues to lay bare how pervasively racism has infected every aspect of this country: health care, employment, education, housing, wealth and the legal systems. Lawyers have a special responsibility for these systems.
On May 25, 2020, George Floyd’s murder rattled our collective conscience. The confluence of COVID-19 disproportionately harming people of color, with a heightened awareness of murders, like Mr. Floyd’s, implores change and compels action. Lawyers have a special responsibility for these systems and a role to play in changing them.
Structural racism was created intentionally, it is perpetuated deliberately, and it persists because of both action and inaction. For example, although in 1954 the U.S. Supreme Court held “separate but equal” schools unconstitutional, and in 1991 the Ohio Supreme Court found the state’s system of funding schools through property taxes violates the Ohio constitution, the Ohio Legislature has failed to comply.
This country needs a period of “deconstruction” to end discriminatory policies. The urgency is different than in the past. Yet the enormity of the task — dismantling four centuries of racist laws, policies and practices — still threatens to paralyze white people. Lawyers must resist the path of denial, avoidance and accommodation, and embrace racial justice now.
Racial profiling, drug laws, sentencing policies, implicit racial bias, prosecutorial discretion and socioeconomic inequity contribute to racial disparities at every level of the criminal justice system. People of color make up 37% of the U.S. population but 67% of the prison population. The Sentencing Project has found that even though Black people are no more likely to commit a crime than white people, Black people are more likely than white people to be arrested. Once arrested, they are more likely to be convicted, and once convicted, they are more likely to face stiff sentences. A racist “justice” system suffocates Black people through incarceration and collateral consequences. Black people who are unfairly trapped by the “justice” system face health threats, lost opportunities, and denials and rejections based on criminal background. For example, a person in prison is two and a half times more likely to contract COVID-19. A person convicted of a misdemeanor for possession of marijuana faces up to 227 collateral consequences. Despite seeking employment at rates higher than the general population, formerly incarcerated individuals are half as likely to get a job and face unemployment rates five times the national average.
Upon release, a person is poor in income, health and opportunity. And yet each person released must secure housing and employment, care for family, finish their education, and avoid the police. Policies and practices that discriminate against applicants based on their criminal record make achieving these goals a Herculean task and disproportionately affect Black people, despite being no more likely to commit a crime than whites. Lawyers must do more to remove barriers for those returning to the community. To avoid these barriers, some people start their own business. People of color face inequity in the process such as limited access to capital because of low appraisal values and credit scores. The Economic Injury Disaster Loans created in the pandemic relief legislation should be responsive to these realities. Instead, small business owners who have been convicted of a felony in the last five years, are currently incarcerated, are on probation or parole, or are under criminal indictment are excluded. Lawyers should challenge such discriminatory legislation that punishes people who have been targets of a biased system.
As Bryan Stevenson said in The New Yorker, and reiterated in a recent event hosted by the Cleveland Public Library, “The great evil of American slavery wasn’t the involuntary servitude; it was the fiction that Black people aren’t as good as white people, and aren’t the equals of white people, and are less evolved, less human, less capable, less worthy, less deserving than white people. … You can’t understand these present-day issues without understanding the persistent refusal to view Black people as equals…. The police are an extension of our larger society, and when we try to disconnect them from the justice system and the lawmakers and the policymakers, we don’t accurately get at it.”
Sweeney is managing attorney for community engagement at the Legal Aid Society of Cleveland.