By Lorentz Hansen, Copy Editor
On Thursday evening, Vermont Law School Dean Shirley Jefferson moderated an online panel discussion entitled “Embedded Racism in the Law.” The panel gathered several VLS professors to explore “the multitude of implicit and explicit bias that exists in law and policy across a broad spectrum of areas, including criminal law, environmental law, and property law,” wrote Britny Town in an email. Over 150 students, faculty, staff, alumni, and members of the public participated in the discussion.
Professor Robert Sand, founding director of VLS’s Center for Justice Reform, opened the discussion by analyzing Minnesota homicide laws and the charges facing the officers who killed George Floyd on May 25. Prof. Sand began by sharing his surprise at the speed with which the four Minnesota police officers were charged. The officer who knelt directly on Floyd’s neck was originally charged with third-degree murder, but the charge was changed to second-degree a few days afterward. Three other officers were charged as accomplices for aiding in the commission of a homicide. Minnesota law defines first-degree murder as a premeditated intentional killing, which in this case the prosecutors did not believe they could show. Second-degree murder in Minnesota requires an intent to affect death, but not premeditation. Prof. Sand noted that the claim police responded to in the first place––that George Floyd used a counterfeit 20 dollar bill––is not actually a crime unless the counterfeit bill is used with the intent to defraud.
Professor Mark Latham continued the panel with a discussion about police use of force. Prof. Latham began with the question: why do officers continue to use excessive force to such a degree, particularly against people of color? Prof. Latham attributes this problem to two unresolved parts of American history that have been overlooked by our society: the genocide of indigenous people in North America, and the use of slavery as the labor force to build this country. Both components, he noted, share the common denominator of white supremacy, exemplified in the idea of “manifest destiny” that fueled European colonists’ belief that they were entitled to the land and prosperity that this genocide and slavery produced. Pseudoscience was employed well into the early 20th century to support these beliefs. Prof. Latham referenced one of Chief Justice Marshall’s decisions, in which the Indian Reorganization Act of 1934 was codified. Justice Marshall described the Native Americans’ relationship to the U.S. government as that of “a ward to his guardian.” White supremacy has been codified into U.S. law, said Prof. Latham, to suppress Black Americans. Through Jim Crow laws, lynch mobs, the “war on drugs,” stop-and-frisk policies, and broken windows policing, the state has continuously promoted white supremacy in its laws, said Prof. Latham. All of these policies have led to a significant increase in the presence of police and prosecution of people of color for “every little thing,” said Prof. Latham.
Dean Jennifer Rushlow followed with the ingrained racism both the rules of evidence and their application. Though there are no longer any facially discriminatory rules of evidence, Dean Rushlow explained the ways in which the rules of evidence disparately impact Black people and people of color in the U.S. Dean Rushlow provided the trial of Michael Dunn for murdering Jordan Davis as an example. Under “stand your ground” laws in Florida, where Davis was killed, an individual is entitled to use deadly force against a perceived threat without first retreating. The jury in this case found it credible that the rap music that Davis and his friends were listening to, as well as Davis’s stature and appearance as a 17-year-old Black teenage boy, would constitute a threat to Dunn, a middle-aged white man. The grand jury, which is not subject to the federal rules of evidence, placed much more weight on Dunn’s testimony than that of Davis’s friends who were present for the murder, and the grand jury declined to indict Dunn. Dean Rushlow also described the different evidentiary standards that are applied to a case when a police officer is involved, which often lead police shootings to go unpunished. Dean Rushlow encouraged participants to reexamine the rules of evidence and other procedural standards in trying to root out racism from the legal system.
Visiting Professor Marianne Engelman-Lado focused her discussion on the ways in which racism has been baked into environmental law and decision making. Environmental benefits and burdens are distributed unevenly depending on race, said Prof. Engelman-Lado. This unequal distribution leads to more health problems in communities of color, such as asthma, lead poisoning, greater exposure to pollutants, and more. Prof. Engelman-Lado noted that “race is the most powerful predictor of toxic exposure and the location of factories.” Just as in other facets of society like access to education, housing, healthcare, etc., environmental laws create and perpetuate racial discrimination in the U.S.
Professor Jonathan Rosenbloom provided the final presentation, in which he discussed racism in property law. Prof. Rosenbloom discussed how property law in the U.S. has evolved, citing Johnson v. M’Intosh, an 1823 case that ruled Native Americans were not entitled to property rights under the law. Approximately one century later, as a result of the National Housing Act passed in 1934 under the New Deal, red-lining became more prevalent, and in many “detrimental areas” people could not purchase land unless they had the exact purchase price. These practices contributed to other factors which limited the number of Black Americans who could purchase land and/or homes. Since this Act, people of color have been left out of the housing boom in the U.S., and the discrepancy in homeownership between white and Black Americans has continued to increase. This disparity grew again after the financial crisis of 2008, after banks explicitly targeted homeowners of color with subprime mortgages and predatory lending practices. These practices gave people of color a higher risk of defaulting on their loans and having to foreclose their property. Home ownership is directly tied to other important parts of life, like: wealth, quality of education, proximity to toxic sites and factories, and access to food other than a “food swamp” of fast-food chains, noted Prof. Rosenbloom. The racism baked into property law in the U.S., therefore, is an essential area to end institutionalized racism. Prof. Rosenbloom ended his presentation by referencing legal positivist Jeremy Bentham, who believed that the “law is what we say it is” and “there are no property rights until we say there are.” Prof. Rosenbloom encouraged attendees to keep this philosophy in mind in the fight to end racial discrimination in the law.
The panel concluded with a question and answer period in which attendees asked panelists how both students and VLS as an institution can do more to regularly challenge discrimination and racism in the law. The panelists encouraged attendees to continue exploring these issues through the law school’s clinics, courses, and in daily conversation.
Dean Jefferson ended the panel by thanking all the speakers and attendees for tuning in and by sharing her hope for similar panels on this topic to continue in the future. The panel was recorded for those unable to attend, and can be accessed here.