What problems? If I can’t presume institutional racism in Jim Crow South, then when can I presume racism? And aside from all of that, if the sentence is unreasonable or inappropriate, then it is unreasonable or inappropriate REGARDLESS of whter or not racism is the cause.
Are you saying that its unfair to all the white guys in jail that don’t get their sentences reviewed as well? Well if you can prove institutional racism against white guys in Jim Crow South then your argument would have merit.
I think people forget how horribly racist this country was within living memory.
Unfortunately, the judges back in 1960 didn’t have you and I there to tell them these laws were unconstitutional. They had to rely on what the Supreme Court told them.
Is this an inevitable habit of yours to make things up and argue against them?
If I am not mistaken, you are a lawyer. You should know that it isn’t enough to show discrimination, but you have to show harm from that discrimination.
The situation I quoted could lead to unfairness - let’s say the robber got 25 years not from a racist judge, but from a tough on crime judge. The same judge sentenced white men in similar situations to 25 years. Releasing the black man and granting him compensation while not releasing the white men convicted by the same judge would be unfair.
And no, that doesn’t mean all white criminals would have their sentences reviewed. Just that som analysis be done to demonstrate that the upward deviation in sentencing was the result of racial bias, not another factor.
Don’t confuse correlation with causality. Yes, obviously there was (and is) institutionalized racism against blacks in the United States. But that doesn’t mean you’ve proven that the conviction and sentencing of black defendants was due to racism.
Little Nemo, is it your position that a defendant has not had an unfair trial unless it is shown that the trial created a situation where it was impossible for the defendant to have been found not guilty? Do you believe that even if a defendant has had an unfair trial that violated the constitution, that defendant should not get a retrial until it is shown that the unfair trial created a situation where there was no possibility of the defendant being found not guilty?
If you’re going to correct someone you should really make sure you get your facts right. Of course when I say you I really mean me. So here we are. I am forced to admit to you that I was wrong and that you were right and that you’ve left me here eating crow.
Yeah, so? We are talking about fixing their error. I’m not saying that that is the sort of situation where we wold impeach a judge but if a black man was convicted using unconstitutional procedures, why would we ignore that?
Yes, but you still have to show harm in the individual case. Look at the Supreme Court case McClesky v Kemp, for example.
You cannot simply show a racist court system - you have to show racism in the individual case. And if a judge is sentencing white criminals in the same way, then you probably will find that hard to do.
It was really a minor issue and I’m sorry if it looked like I was belaboring the point. But I felt that it was indicative of the problem of the OP - a whole string of vague assertions, with sloppy concern for the details, leading to a universal conclusion and calling for a drastic solution.
I am using a presumption of racism to justify taking another look at black convictions in the south.
I am not presuming black prisoners are innocent, I am not presuming that racism might be the only cause for improper incarceration.
ANYONE that get exonerated would get the same sort of compensation I am talking about, but due to the history of racism and lack of due process in the south, I am willing to give them a case review by a judge but without a jury.
The underlying facts of the case would remain but I would discount inculpatory eye witness testimony (incorrect identification by eyewitnesses was a factor in over 70% of wrongful convictions, and is probably an even larger factor in Jim Crow South).
I would also measure sentencing according to the sentencing standards for white defendants during the same time period. If the difference is slight, then no problem but when you have white defendants going to jail for 5 years for mugging a little old lady and a black defendant gets 25 years for the same crime, I don’t really need to cry racism to say that there has been an injustice.
I guess it depends on what we are talking about. Your case mayargue against changing a 25 year conviction in favor of a 10 year conviction absent a showing of something more than discriminatory effect but it does not rule out setting an innocent man free regardless of effect or intent.
You seem to be saying that you can’t revisit old cases that were decided without a showing of some sort of racism in the process and I’m saying that I am presuming racism throughout the process in Jim Crow South where blacks were effectively barred from voting, serving on juries, being a policeman, marrying white people, and all that other stuff. And once you revisit the case, it doesn’t matter whether an innocent man is in jail because of racism or because of non-racist judicial error, you still have to let the guy go and provide restitution.