Thursday, February 17, 2011
Bidish Sarma (The Justice Center's Capital Appeals Project) has posted An Enduring (and Disturbing) Legacy: Race-Neutrality, Judicial Apathy, and the Civic Exclusion of African-Americans in Louisiana (Houston Law Review, Forthcoming) on SSRN. Here is the abstract:
In Louisiana, Mr. Ernest Benjamin Kruttschnitt is fondly remembered as a lawyer who championed worthy causes. He long served as the President of the New Orleans School Board, and his leadership in the Louisiana State Bar remains the stuff of legend. Indeed, his portrait adorns the atrium wall immediately outside of the Louisiana Supreme Court on the Fourth floor of the stately court in the French Quarter.
But, history has overlooked one central and irrefutable fact about Mr. Kruttschnitt: he was a white supremacist. In fact, he led the State’s effort to undermine the nation’s Reconstruction Amendments, seeking to disenfranchise and marginalize African-Americans and cleanse Louisiana of the folks he claimed “degraded our politics.” A key author of the constitutional provisions and policies designed to deny African-Americans a voice in government and civic life, he remains a revered legal luminary in Louisiana. Yet, at the time that he presided over Louisiana’s Second Constitutional Convention, his followers and colleagues knew that his goal was “to perpetuate the supremacy of the Anglo-Saxon race in Louisiana.”
Today, we remember not. His inflammatory and racist rhetoric does not taint our memory because although E.B. Kruttschnitt made his wicked agenda clear to his like-minded friends, he circumvented legal scrutiny through the deployment of race-neutral language in the laws he drafted and the Constitution he helped create. Combined with pervasive judicial apathy, this tactic succeeded, and represents his enduring, if unspoken, legacy. And, it is a tactic that was not only effective then, but also continues to disenfranchise African-Americans today.
Although African-Americans are no longer denied access to the ballot box through discriminatory property requirements and arbitrarily-enforced educational qualifications, State actors retain substantial discretion with which to discriminate in one significant aspect of public life: jury service. In all jury trials, prosecutors can utilize peremptory strikes to exclude otherwise-qualified African-Americans from serving on a jury. And, though the U.S. Constitution technically prohibits prosecutors from using peremptory strikes to purposely discriminate on the basis of race, the State has discovered that E.B. Kruttschnitt’s old trick still works in this context. Race-neutral language explaining peremptory strikes against African-Americans seems to carry the day in front of the Louisiana Supreme Court, even where overwhelming circumstantial evidence suggests that the real reason for such strikes is race. Judicial apathy, expressed as uncritical deference to race-neutral language, remains. Until it is invalidated, the State will continue to fulfill E.B. Kruttschnitt’s desire to exclude African-Americans from civic life, at least insofar as jury participation is concerned.