They Call Us Monsters – A Look Inside the Juvenile Justice System: A Film Review and Commentary

Author: Kennedy Womack

Throughout my time in quarantine due to COVID-19, I have been watching many movies that I may not have had the chance to watch prior to the pandemic. I recently watched an incredibly moving documentary, titled They Call Us Monsters, currently being shown on the Starz channel. I happened to catch onto this documentary, knowing nothing about it. I later learned it was quite popular and won a lot of awards.. I turned it on because the subject matter piqued my interest, as I have been interning in the Hamilton County Juvenile Public Defender Office for almost a year now, and I wanted to hear a story regarding juvenile justice that would give me more insight into the topic. What I did not realize is how truly moved I would be following the documentary, as it followed the story of three young men in the system. 

As a matter of background, They Call Us Monsters goes behind the walls of the Compound, a high-security facility where Los Angeles houses its “most violent” juvenile criminals. PBS Independent Lens posits the following message when describing the film’s juvenile protagonists: “To their advocates, they’re kids. To the system, they’re adults. To their victims, they’re monsters.” 

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Source: The M Report

The film follows three young offenders who sign up to take a screenwriting class with producer Gabe Cowan as they await their respective trials. Arrested at age 16, Jarad faces 200-years-to-life for four attempted murders. Juan, also arrested at 16, faces 90-to-life for first-degree murder; Antonio was arrested at 14 and faces 90-to-life for two attempted murders. As the boys work with Gabe on their screenplay, their complex life stories are revealed. Halfway through the screenwriting class, Antonio returns to juvenile court and is released with time served but, back in the neighborhood he came from, he quickly falls into the same patterns of drug use and gang life that led to his incarceration in the first place. Meanwhile, the realities of Jarad’s and Juan’s crimes and their pending trials set in. One of the victims of Jarad’s shooting is only 17 and is permanently confined to a wheelchair. And, even if he is released, Juan faces deportation and separation from his family, including his infant son.  

In the film’s Director’s Statement, director Ben Lear writes:

The Compound is a jail within a jail—a high-security facility in the middle of Sylmar Juvenile Hall. Outside its gates, kids play soccer and kickball on a grassy field. These minors are being tried as juveniles for non-violent crimes. They will return home in a matter of months. Inside the Compound, the kids look the same—almost entirely Hispanic and African-American boys dressed in county grays—only they’re not allowed on the grass. They won’t be going home anytime soon. They are LA County’s high-risk juvenile offenders, tried as adults for violent crimes and facing decades, if not hundreds of years in adult prison.

Lear continues in the statement: 

When I first entered the Compound in early 2013, I expected to find stocky, steely-eyed gangsters staring me down, wishing to jump me if given the chance. Either I’d forgotten how young teenagers really look, or I’d watched too much Locked Up Raw, but I couldn’t have been more wrong. Instead I met a classroom full of kids, giddy and eager to tell their stories. They went around the room and shared their career goals. Sixteen-year old Martin said, ‘I might want to be an architect. Or an artist. There are so many things I don’t even know about yet. But I’m excited to learn!’ Then he paused and added, ‘I just hope I get the chance.’ He faced 100 years to life for first-degree murder. For days after, I couldn’t stop thinking about this world I’d stumbled into. The narrow space between a lost childhood and a stolen adulthood where these kids managed to live, laugh and discover their potential. When I learned about an upcoming California Senate Bill that would provide them the opportunity for a second chance, I knew I had a film to make. 

As a law student who has worked in juvenile justice, I can attest to exactly what Lear describes. His words, “the narrow space between a lost childhood and a stolen adulthood” hit home for me. Time and time again, I have witnessed children charged with crimes that could put them behind bars for years. But they are CHILDREN. I constantly think about where I was at that age. I cannot imagine being 15 or 16 and forced to live the rest of my life in a cell. These juveniles are so young and have their whole lives ahead of them, so how can our system take that away? 

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Source: American Structurepoint

On October 8, 2014, the 20th anniversary of his 1994 crime bill, President Bill Clinton predicted that sentencing reform would become one of the hot-button issues in 2016. “We basically took a shotgun to a problem that needed a .22,” he admitted in his statement. Many years later, we are still dealing with the consequences of “tough on crime”: heavily overpopulated prisons, a dearth of educational programming and reentry services, and a recidivism rate of over 80percent, according to the Department of Justice . Chief among these problems is our treatment of juvenile offenders. While juvenile crime has steadily decreased since 1994, we have continued to pass tougher and tougher juvenile crime laws. 

State juvenile courts with delinquency jurisdiction handle cases in which juveniles are accused of acts that would be crimes if committed by adults. In 45 states, the maximum age of juvenile court jurisdiction is age 17. Five states – Georgia, Michigan, Missouri, Texas, and Wisconsin – now draw the juvenile/adult line at age 16. Missouri raised the age of juvenile court jurisdiction to age 17 in 2018 and the law will go into effect January 1, 2021. Michigan raised the age of juvenile court jurisdiction to 17 in 2019 and that law, too, will go into effect in 2021. 

However, all states have transfer laws that allow or require young offenders to be prosecuted as adults for more serious offenses, regardless of their age. Four forms of transfer laws are: 

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Source: The Playlist
  • Statutory Exclusion – State law excludes some classes of cases involving juvenile age offenders from juvenile court, granting adult criminal court exclusive jurisdiction over some types of offenses. Murder and serious violent felony cases are most commonly “excluded” from juvenile court. 
  • Judicially Controlled Transfer – All cases against juveniles begin in juvenile court and must literally be transferred by the juvenile court to the adult court. 
  • Prosecutorial Discretion Transfer – Some categories of cases have both juvenile and criminal jurisdiction, so prosecutors may choose to file charges in either the juvenile or adult court. The choice is considered to be within the prosecutor’s executive discretion. 
  • Once an adult, always an adult” Transfer – The law requires prosecution in the adult court of any juvenile who has been criminally prosecuted in the past, usually regardless of whether the current offense is serious or not. 

The message of state legislatures regarding treatment of juvenile offenders rings loud and clear: “These kids are lost, defined by and no better than their worst act.” But due to recent advances in brain science and a handful of Supreme Court decisions, we have started to once again see juveniles as different from adults. A series of recent landmark cases in the U.S. Supreme Court has evolved to change our legal responses to juvenile offending. They have abolished the death penalty for crimes committed during adolescence, found mandatory life-without-parole sentences for murder in violation of the 8th Amendment, and eliminated life-without-parole sentences for crimes less than murder. In Massachusetts, life sentences for juveniles were ruled unconstitutional, and the review of cases in which those sentences were given in the past has already started. A significant part of the argument for these decisions included an understanding of adolescent brain development. While society’s attitudes will ultimately dictate the shape of law, science can be used to confirm and dispel common ideas about teenage behavior to forge a more scientifically sound and financially viable system for adolescent reform.  

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Source: Ohio Department of Youth Services

Scientists have confirmed that the adolescent brain is still developing, that it is highly subject to reward and peer influence, and that its rate of development varies widely across the population. They have developed basic tools that offer data with which to judge the potential for juvenile desistance, recidivism, and rehabilitation. With its ability to examine the workings of the teenage brain, neuroscience is improving our understanding of adolescents, and potentially, juvenile offenders. Through their window into the brain, neuroscientists understand, for example, that adolescents mature at markedly varied rates. The presumed trajectory of brain development, demonstrated in existing “bright line” age cutoffs for voting, military service, and drinking, however, is not reflective of this variability in brain maturity. Similarly, neuroimaging research by CLBB faculty clarifies that it is teenagers’ heightened vulnerability to reward that drives risky behavior, contrary to long-standing beliefs that teenagers are unable to gauge risks. They can often recognize risks, but incomplete development of brain mechanisms related to modulation of impulsive behavior reduces their tendency to heed those risks. 

Science may also help us understand which juvenile offenders are likely to commit future crimes and which may not. A longitudinal study, “Pathways to Desistance,” has collected significant data on factors such as substance abuse and instability in daily routine that lead to youth recidivism. The seminal paper, “Rewiring juvenile justice: the intersection of development neuroscience and legal policy,” elucidates how key new scientific findings about the development of the adolescent brain may inform policy. 

Now that science has confirmed what juvenile justice advocates have been pushing for, there is a new movement for a change in societal attitudes towards juveniles. But the fight is not over. Sentencing reform must be enacted in states where juveniles are possibly subject to a “life without parole” sentence. Juveniles should be given the opportunity to go before a parole board for possibility of release when tried as adults. Juveniles should be given graduated sentencing, rather than immediately being locked up. And, importantly, rehabilitation should be considered as the main goal for juvenile justice. These are, ultimately, kids. As the film They Call Us Monsters illustrates, at the end of the day, they are adolescents who made mistakes. They deserve a second chance and a life to lead. They have the ability to be upstanding citizens, if we give them the chance. This film deeply motivated me to fight for them, and you should too. I encourage each of you to watch this film, follow their stories, and empathize with each of them. And then get out there on the frontlines and push for justice – for them and for all juveniles incarcerated. 

72485825_2788363118056691_6498498089664380928_n Kennedy Womack is a University of Cincinnati College of Law Graduate (Class of 2020). During her time at UC Law, she was active in various student organizations, including the Freedom Center Journal, Human Rights Quarterly, Student Ambassadors, Student Bar Association, and the Willem C. Vis International Commercial Arbitration Moot Court Team. She has shown a consistent dedication to community and pro bono work, holding volunteer internship positions at the Ohio Justice & Policy Center and the Hamilton County Public Defender – Juvenile Division. She currently is studying for the bar exam and will be moving to Florida afterwards, where she has accepted a position as a public defender in Fort Myers.

My Big Gay Playlist 

Author: Elizabeth Gatten

I came out as bisexual in 2018 after many years of confusion, frustration, and self-hate. There are a lot of damaging notions out there about bisexuality — that it isn’t real, but just a pitstop to “gay town”; that bisexual people are promiscuous; that being bi makes you less part of the LGBTQ+ community than others. I bought into some of those stereotypes when I was younger, which delayed my acceptance of myself. Now, however, I am an out and proud member of the LGBTQ+ community! In honor of my queer brothers and sisters (and friends beyond the gender binary), I have created this Super Gay™ playlist. It features artists who identify in some way as members of the LGBTQ+ community. Some of the songs speak to the artist’s experiences as a queer person, while others are just bops that happen to be written by queer folks!  

1. Tegan & Sara — “Closer”  

I wanted to start off with one of my old standbys — it is honestly amazing that I didn’t realize I was queer sooner considering how long I have been obsessed with Tegan and Sara. The Canadian musical duo are identical twins; both of the sisters are openly gay. Their genre is “indie-pop.”

I love “Closer” because it reminds me of the feeling you get when you have a crush and you start to realize they might also have a crush on you too. It perfectly captures that butterflies-in-your-stomach sensation:  

“All I want to get is a little bit closer Couple

All I want to know is 

Can you come a little closer? 

Here comes the breath before we get 

A little bit closer 

Here comes the rush before we touch 

Come a little closer.” 

The music video captures this nostalgic feeling by featuring high schoolers at a party playing spin the bottle, dancing, hiding out in blanket forts, and kissing on top of cars. Plus, the song has an incredible beat to jump up and down to while singing into your hairbrush.  

 

2. Hayley Kiyoko — “Girls Like Girls”   

When I first discovered Hayley Kiyoko, I knew she looked familiar. After some digging, I realized I recognized her from a brief stint she had on the Disney channel show, Wizards of Waverly Place. Kiyoko has definitely come a long way from her Disney Channel days — she is now known as “Lesbian Jesus” amongst her fans. Her music is aimed at normalizing homosexual relationships in our heteronormative society. For example, “Girls Like GIrls” features the lyrics: 

“Saw your face, heard your name, gotta get with you.  

Girls like girls like boys do,  

Nothing new.”  

Kiyoko also seeks to control the narrative of what it means to be a lesbian in a world that often fetishizes women loving women.

I encourage you to check out more of Hayley Kiyoko’s music, which discusses not only her own experiences but also various issues faced by LGBTQ+ individuals.  

 3. iLoveMakonnen — “Tuesday” 

This song takes me back to my college party days. “Tuesday”, released in 2014, was a staple on any party playlist. In 2017, the singer announced he is gay via Twitter: “As a fashion icon, I can’t tell u about everybody else’s closet, I can only tell u about mine, and it’s time I’ve come out.”

 

4. Le1f — “Wut”  

Le1f (pronounced “leaf”) is perhaps the most successful openly gay rapper out there. Raised in New York City, the artist began exploring the world of underground dance-music as a teen and spent years after working on his craft. In 2012, Le1f released “Wut” on the website, WorldStarHipHop. Rocking booty shorts and perching on an oiled-up man, Leif showed the world in “Wut” that he has no intentions of being anything other than unapologetically himself. I personally can’t get enough of it!  

 

5. St. Vincent — “Los Ageless”  

I’ll admit, I first heard of St. Vincent when she was dating supermodel, Cara Delevigne. However, after looking into her music, I discovered St. Vincent is iconic…plain and simple. She has shapeshifted through multiple genres with ease — rock, pop art, indie rock. As a queer woman in a field dominated by men, she has no qualms about disrupting the system. And why should she? She is one of the most talented lyricists and musicians out there.  

“Los Ageless” is a perfect example of just how otherworldly St. Vincent is. The lyrics and video, first set to a new wave disco beat, poke fun at the fear of growing old in Los Angeles. As the song progresses, it somehow seamlessly ramps up to a raw, emotional climax with the repeated lament of “How can anybody have you? How can anybody have you and lose you? How can anybody have you and lose you and not lose their minds, too?”  

 

6. Tom Goss — “Son of a Preacher Man”  

Two time winner of The Washington Blade’s award for Best Gay Musician, Tom Goss isn’t afraid to flip traditional masculine concepts on their heads. For example, his song “Lover” explores the experience of partners of gay servicemembers. Another touching piece from Goss is his cover of the Dusty Springfield song, “Son of a Preacher Man.” In Goss’s version, the implications are much different than the original — the video opens with a preacher condemning homosexuality. This spin gives the original lyrics “bein’ good isn’t always easy, no matter how hard I try” a much deeper meaning. Goss’s take on this classic song is equal parts beautiful and heartbreaking. However, be warned that the video features violence and suicidality. 

 

7. Tyler Glenn — “Shameless”  

You might know Tyler Glenn from his former days as the frontman for Neon Trees. In 2014, the singer finally came out after nearly a lifetime of suffering in the closet. Glenn comes from Utah and was raised Mormon. The Church of Jesus Christ of the Latter-day Saints condemns same-sex relationships. In turn, Glenn (who at first tried to continue as a practicing Mormon after coming out) has now condemned the Church’s views. In “Shameless”, Glenn demonstrates radical self-acceptance, with lyrics such as:  

“Why not take me now as I am? 

Why not take me now like a man? 

You hate what you don’t understand 

I live a life so shameless 

Oh no, I don’t give a damn.”  

The pop-rock song features Glenn wearing a mesh top, shiny silver pants, and eyeliner. He sings to a tied up, masked figure that is meant to represent the founder of Mormonism. He dances around with “[full-bodied], hairy dudes.” The song is not only a message to the Mormon church but to everyone, including the gay community, that Glenn intends to “do it in [his] own way.” Denouncing the Grindr culture of “no fars, no femmes”, Glenn told an interviewer for Billboard: “I wanted the video to represent me authentically. I’ve never felt like I fit into any group and know there are other people that feel the same way. There isn’t just a stereotypical one-way, even in the gay community.”  

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8. Orville Peck — “Dead of Night”  

Described in the comments to his “Dead of Night” music video as “like Quentin Tarantino kissed Roy Orbison with a mouthful of whiskey,” Orville Peck isn’t afraid to push the envelope of country music. Orville dresses like the Lone Ranger with one fun twist– his mask is totally decked out in fringe! The singer, who identifies as gay, is a New Yorker in his early 30s.  

 

9. Lil Nas X — “Old Town Road”  

If I’m going to talk about new-age cowboys, I would be remiss to leave out Lil Nas X. The singer became a viral sensation at just 19 years old with his country rap single, “Old Town Road.” At first thwarted by the gatekeepers of the country music industry, Lil Nas X was vindicated when country legend Billy Ray Cyrus stepped in to collaborate with him.  

Raised in a small conservative community outside of Atlanta, Georgia, the singer witnessed a lot of homophobia and believed he would never come out of the closet. Now, however, the singer is out and not afraid to show it! He has had some iconic looks that demonstrate his multifaceted nature. For example, his daring outfit for the 2020 Grammys: a studded, pink leather suit worn overtop a mesh shirt and harness, and accompanied by a matching cowboy hat.  

 

10.  Kehlani — “Honey” 

Like Hayley Kiyoko, Kehlani’s music is doing the good work of bringing same-sex relationships, particularly between women, into mainstream music. Kehlani opens the song, “I like my girls just like I like my honey: sweet.” It’s a matter-of-fact introduction of her sexuality that I appreciate — she’s not making the fact that she likes women into a big deal, because it shouldn’t be one.  

Kehlani had been on the music scene for awhile, and has also been openly queer. However, in releasing “Honey”, Kehlani chose to live her truth not just in her personal life but in her music. I’m thankful to artists like Kehlani and Hayley Kiyoko who recognize that representation matters and  who generate music that young, queer people can relate to. (For an added bonus, check out their collaboration, “What I Need.”

 

11. Hollie Col — “Unholy”  

Traditionally offering up indie-folk songs, Hollie Col traded her usual sound for a more electric one in “Unholy.” Hollie Col is a Sydney, Australia, native and her talents seem boundless — not only is she a talented singer/songwriter, but she also wrote, directed, produced, and starred in all of her music videos. As eloquently stated in an article spotlighting the artist, “Hollie has a knack of getting to the nitty gritty centre of love, life, and heartache….” I couldn’t agree more. In less than five minutes, “Unholy” tells the story of a girl in a strange love triangle with another girl who is in a relationship with a boy. Col described the song as an “upbeat guitar pop anthem for the hopeless romantics that loved too hard and were left on the sidelines.” 

 

12.  GRLwood — “Vaccines Made Me Gay”  

As a Kentucky native, I had to include these “Kentucky Fried Queerdos.” If you were a baby punk rocker who loved to go to clubs and slam dance, then GRLwood would definitely be your jam. The punk duo has “a knack for wielding masculine braggadocio like the blunt, absurd thing that it is” and they aren’t afraid to be subversive, aggressive, or even flat out bizarre. The generous helping of personality being served by the GRLwood pair is matched by their talent. That personality and talent can both be found in “Vaccines Made Me Gay,” a tongue-in-cheek social commentary on the anti-vaxx movement that features smooth guitar riffs and wide-ranging vocals.  

While I would be remiss as a Kentuckian to leave out these two, I would also be remiss as a bisexual woman to not comment on the negative implications of the duo’s song, “Bisexual”, which contributes to the erasure of bisexuality (particularly for bi folks who happen to be in a heterosexual relationship) by other members of the LGBTQ+ community. For more information on this song and why it is troubling, check out this article from the queer news and culture site Into.   

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13.  Cakes Da Killa — “Gon Blo” (feat. Rye Rye)  

Cakes Da Killa, when asked to describe his music in one word, replied, “energetic.” That is certainly true of “Gon Blo” which opens with a refrain of “just pump the beat” that makes you instantly start dancing. In the middle of the song, Cakes demonstrates his skills at spitting rhymes and, let me tell you, it is seriously impressive!  

Like Le1f (who Cakes describes as one of his musical influences), Cakes had been on the scene for a while before his official musical debut of Hedonism in 2016. Cakes chooses not to center his sexuality in his music, and in fact resents the label of being a “gay rapper.” In an interview for the gay news site them., Cakes stated, “It just shows that even in 2019, people still have these little weird hangups with gay people, and also confident gay people. But that’s been my life’s work to just be like, ‘Hey, I’m gay. Shut the fuck up.’” I certainly appreciate him making the point that a person’s sexuality is not the most interesting thing about them, and his goal of normalizing out-and-proud queerness in the music industry without it having to be someone’s schtick.  

 

14. Rina Sawayama — “XS” 

I could’ve sworn I was listening to vintage Britney Spears when I first heard Rina Sawayama’s music. Her songs transport me to my childhood, but they have an added layer that most of those early 2000s hits didn’t have: social commentary. Sawayama explained her inspiration for “XS” (excess): 

“‘XS’ is a song that mocks capitalism in a sinking world. Given that we all know global climate change is accelerating and human extinction is a very real possibility within our lifetime it seemed hilarious to me that brands were still coming out with new makeup palettes every month and public figures were doing a gigantic house tour of their gated property in Calabasas in the same week as doing a ‘sad about Australian wild fires’ Instagram post. I mean I’m guilty of turning a blind eye too, because otherwise it makes me depressed. We’re all hypocrites because we are all capitalists, and it’s a trap that I don’t see us getting out of. I wanted to reflect the chaos of this post-truth climate change denying world in the metal guitar stabs that flare up like an underlying zit between the 2000s R&B beat that reminds you of a time when everything was alright.” 

It’s this type of frankness that makes Sawayama so relatable to her millennial fans. On a personal level, I identify with Sawayama’s struggles with self-acceptance as a bisexual/pansexual person, which she addresses in her song, “Cherry.”

Finally, Sawayama has provided important representation for queer Asians. One YouTube commenter noted on the “Cherry” video, “I think this means an incredible amount to me because [she’s a] Japanese queer icon?? My mum is insanely bigoted and […] Japanese media and society in general is v[ery] unaccepting and I hate it so I needed this.”  

 

15. Mary Lambert — “Secrets” 

Mary Lambert is an angel! At the very least, you are probably familiar with her from “Same Love”, the Macklemore/Ryan Lewis track that featured vocals from her song, “She Keeps Me Warm.” She has been representing queer women so proudly for so long that my repressed teenage self used to change her music because I didn’t like the part of me that identified with it.  

Lambert bares her soul to the world in a way that not a lot of artists do — she “has long been open about trauma, depression, and coping with being bipolar in her spoken word anthems and her songs.” For example, in another of her more popular songs, “Secrets,” Lambert opens with, “I’ve got bipolar disorder, my shit’s not in order, I’m overweight, I’m always late, I’ve got too many things to say.” Her candor is refreshing, as well as her presentation as a feminine lesbian woman in a world that often separates femininity from identifying as a lesbian.  

Returning to her music after coming out, I realized I identify with Lambert’s lyrics even more than I previously realized. In the hook for “Secrets,” Lambert sings: 

“They tell us from the time we’re young 

To hide the things that we don’t like about ourselves 

Inside ourselves 

I know I’m not the only one who spent so long attempting to be someone else 

Well I’m over it.”  

Rehearing those lyrics from one of the artists who helped me begin the process of coming to terms with my sexuality made me emotional. It is true, I spent a long time attempting to be someone else. And, when the time came that I was ready to come out, I felt the same way as Lambert when she breezily sings, “I don’t care if the world knows what my secrets are.”  

ElizabethGatten

Elizabeth Gatten is a rising 3L dedicated to public interest work. She currently serves as the EJW Rural Summer Legal Fellow at Cincinnati Legal Aid. As a bisexual woman, Elizabeth is passionate about championing the LGBTQIA+ community. In her free time, Elizabeth loves baking, and spoiling her pug, cat, and bearded dragon.

Segregation

Author: Matthew Doktor 

There is a not-so-subtle irony involved in teaching the 1954 U.S. Supreme Court decision Brown v. Board of Education of Topeka. When I had the privilege of teaching modern American history, the days preceding Brown examined the oppression of Jim Crow. The class would read the Brown that famously concluded “in the field of public education, the doctrine of ‘separate but equal’ has no place. Separate educational facilities are inherently unequal.” Then would I ask the students to look around and reflect. The inherent inequality that Chief Justice Warren spoke of in Brown was on display in the racial and ethnic makeup of my students. But that was not separate but equal. Inequity in the facilities and administrative practices compounded the racial segregation. Derrick Bell, a lawyer who personally worked to desegregate schools in the deep South concluded in a 1993 article, “the Brown decision, while never overturned, has become irrelevant.” Looking around the classroom, the permanence of racism and segregation in this country could not be clearer. According to Bell, there is good reason to celebrate Brown, but the continued racial segregation in schools combined with inferior resources in predominant Black and Latinx schools tell the real story.  

Despite the judicial and legislative initiatives to combat discrimination, non-compliance is more the rule to the exception. In place of lawful discrimination arose a racially tiered society with underpinnings of poverty. As Bell noted, while the lawful racial barriers of America’s slave society and later Jim Crow were replaced with more subtle forms of discrimination, America was hardly less discriminatory.  

Yes, Chief Justice Warren was correct in his assessment of education in Brown, calling it “the most important function of state and local governments.” That fundamental role of education accentuates the tragedy of American racial segregation. And that racial inequality is compounded by economic inequality, as poor students of color are concentrated in schools and neighborhoods.

I. Poverty & Race 

         Poverty is an amorphous concept. For most Americans and most Cincinnatians, we are only confronted with the realities of poverty when we see the vestiges of life on the streets or are asked to help ease the financial burden of our neighbors. While poverty is typically defined by income, leading scholars consider it a more dynamic experience that includes issues related to social and cultural exclusion.   

Throughout America’s history, race privilege has consistently translated into class privilege. According to current census data, people of color disproportionately experience poverty compared to their white counterparts.  In terms of real dollars, the median net worth of a white household in 2016 was $143,000 compared to the $12,920 for Black households, $21,420 for Latinx households, and $5,700 for indigenous households. Across the United States and particularly in the Rust Belt, individuals experiencing poverty have been concentrated into economically declining neighborhoods. As the white residents who fled to the suburbs are now fleeing those suburbs, suburban neighborhoods are increasingly becoming areas of poverty concentration.  

As Ta-Nehisi Coates observed in The Case For Reparations, systemic plunder of the Black community continued well into the 20th Century. Private and public sectors working in tandem destroyed the possibility of investment in Black neighborhoods and plundered Black residents. Coates pointed to the Chicago suburb of North Lawndale as a case study of white-imposed Black disadvantage where developers price-gouged housing  and sold homes on contract to Black buyers. Contract sales of homes, unlike traditional mortgages, limited the equity accrued in the home and risked complete forfeiture of the home and dollar paid with one missed payment. That system of plunder generated profit for white contract sellers, plundered Black home buyers, and destroyed neighborhoods.   

People of color are disproportionately more likely to live in economically declining areas, with 35 percent of all Black residents living in declining economic areas. These shifts correspond to gentrification in major metropolitan cities that cause displacement of existing residents. In the 50 largest U.S. cities, approximately 464,000 low-income residents have left gentrified neighborhoods. That gentrification is disproportionately white, with only 9 percent of Black residents living in gentrified areas.    

Families of color not only face segregated neighborhoods and schools, but segregated financial, health, and food systems. In the U.S., Black individuals are at higher risk for diabetes, hypertension, and heart disease. That is due in part to food insecurity and barriers in communities of color across the U.S. In 2013, a U.N. report acknowledged the role of systemic and structural barriers that limit communities of color from better socio-economic communities.  

Those barriers, built on white supremacy, deny essential services like fresh and healthy food to segregated and isolated communities. Black children have a 500 percent higher death rate from asthma compared to white children. And disproportionately lower quality healthcare for Black patients due to implicit biases and structural barriers that limit access to healthcare creates a two-tiered healthcare system. This is all compounded by racism-induced stress that increases mortality rates in Black infants and Black mothers. Individuals living in segregated neighborhoods of color are more likely to be isolated from good jobs or the transportation necessary to reach those jobs.  

 According to a recent Census Bureau Report, despite a slow decline in overall poverty, the elderly increasingly experience poverty. While the number of white Americans experiencing poverty has decreased, the poverty rates for Asian, Black, and Latinx Americans have not moved. One out of every five Black Americans, or 8.9 million people, are currently experiencing poverty. Two out of every five children living with single mothers experience poverty in America. Research by HUD shows that poor neighborhoods are isolated from money, goods, jobs, and resources. Individuals who experience that isolated poverty in turn face problems related to crime, education, and health.  

Research by the New York Academy of Sciences reveals that children who experience poverty risk long-lasting consequences related to cognitive development and academic performance. Interventions beyond simple economic aid help offset those effects, like science-driven intervention programs that provide enrichment to children and their families. 

As a whole, media portrayals of the realities of poverty are limited to “bootstrap human interest stor[ies]” that ultimately amount to shaming the poor and equating success into a moral indicator. And when class and race intersect, individual Black ascent into higher tiers of socioeconomic status are cited to dismiss claims of racism and racial injustice.   

Not only are poor people of color disparaged with success stories, poor people of color experience poverty that is different in kind. Poor people of color are more likely to live in neighborhoods of concentrated poverty. In Chicago, poor people of color are ten times more likely than poor whites to live in high-poverty census tracts (neighborhoods with a 40 percent  poverty rate).  

Even worse, systemic inequalities at the intersection of race and poverty are often deployed to pathologize people of color. After the passing of the Civil Rights Act 1964, then advisor to President Nixon Daniel Moynihan authored a report on the Black family commonly known as the Moynihan Report. Its assessment of the Black community as a burdened community rested on an indictment of Black women. According to Moynihan, the matriarchal structure of the Black family disadvantaged poor Black males in education.  

Moynihan and his modern counterparts ignore what are the innate and inherent state and institutional barriers that exacerbate the effects of poverty among people of color. Problematically, the law fails to see intrinsic barriers. In 1896, Justice Harlan dissented to the maligned Plessy v. Ferguson, but declared the Constitution to be race-neutral, declaring the Constitution “color-blind, and neither knows nor tolerates classes among citizens.” According to Harlan, the Court “takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

II. Poverty in Cincinnati 

           In the aftermath of significant inner-city unrest in major cities across the United States, then President Lyndon B. Johnson formed the National Advisory Commission on Civil Disorders to examine the violence. As one of the Kerner Commission’s “profiles of disorder“, Cincinnati’s history of racial inequality was evidence of the need for civil rights legislation like the Fair Housing Act. The commission singled out Cincinnati’s high rate of poverty, limited access to housing, and limited access to jobs in the Black community in the 1960s. Things have not changed. 

         According to most indicators, Cincinnati is on the wrong end of racial and income equality. Despite the promise of housing legislation, integration is a myth and historically poor communities still have less opportunity. Cincinnati remains one of the most segregated cities in the country. Across the city, streets like Section Avenue, McMicken Avenue, and Vine Street define stark racial dividing lines.  Cincinnati is one of the five poorest cities with at least 250,000 residents with nearly 28 percent experiencing poverty. Despite the general recovery from the 2008 Recession, more people in Cincinnati and across the country feel the effects of poverty now than they did in 2007. 

III. School Segregation 

While the U.S. Supreme Court in Brown v. Board of Education struck down segregation in America’s public schools, the question remained: how to fix the problem. In Green v. County School Board of New Kent, the Supreme Court explained that a school board opening the doors to students of color begins, not ends, the abolition of segregation. Instead, the Court charged school boards with a duty to implement changes to eliminate racial discrimination “root and branch.”  

Then, in 1974 the Supreme Court retreated from that notion of broad restructuring with its decision in Milliken v. Bradley. In Milliken, Detroit parents and the NAACP challenged segregation within the Detroit Public School System. The Supreme Court rejected a broad multi-district remedy to segregate Detroit schools; instead it required proof that “racially discriminatory acts of the state or local school districts” substantially caused inter-district segregation. The Court distinguished between de jure segregation, segregation caused by intentional acts of the state, and de facto segregation, segregation caused by forces other than the state. The Court ultimately limited the ability of any federal court to create an area-wide school redistricting plan that would include surrounding neighborhoods in any restructuring. The Court also embraced colorblindness and indifference towards the history of racial discrimination in America and the public and private policies causing segregated neighborhoods.  

But colorblindness turns a blind eye to systemic racism and historic oppression. Both legal conservatives and liberals embrace colorblindness. For white liberals, colorblindness is a convenient default mode of perspective “without any apparent perceived need for justification.”   

Instead, Barbara Flagg argues against the Court’s colorblind Equal Protection doctrine. According to Flagg, Equal Protection disparate impact jurisprudence fails due to the requisite finding of racially discriminatory intent in “facially neutral” decisions. Instead, she argues that neutral imposition of white norms is active maintenance and participation in white supremacy. Equal Protection jurisprudence falls short when it ignores facially white neutral decision-making and unconscious discrimination, and then permeates historic racial oppression.  

As recently as 2007, the U.S. Supreme Court struck down Seattle and Louisville’s integration program designed to create district-wide racial proportionality in Community Schools v. Seattle School District No. 1. According to the Court, the 14th Amendment’s guarantee of equal protection requires governments to treat citizens as individuals rather than members of a race, religion, or gender. The Court embraced a race-neutral analysis, that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In the Court’s eyes, racial proportionality would ensure race would always be relevant in American life and ultimately derail the goal of eliminating race from government decision-making.  

IV. Ohio School Segregation

In 1842, a white school teacher challenged integration in Ohio classrooms in Chalmers v. Stewart. According to the Supreme Court of Ohio, in Chalmers, white children only had the privilege of common schools.  After the Civil War, Black parents challenged Ohio’s segregated schools after the ratification of the 14th Amendment based on the Equal Protection Clause – that no state shall “deny any person within its jurisdiction the equal protection of laws”, and the Privileges or Immunities Clause — that “[n]o state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States.” Yet, in cases like State ex rel. Garnes v. McCann, the Supreme Court of Ohio ruled that segregated schools and the laws that govern them “do[] not deprive” Black children of their rights. According to legal scholar Davidson Douglass, enforcing Ohio’s anti-segregation legislation was complicated by legitimate fears of the Black community surrounding integration. Those same fears resurfaced after the U.S. Supreme Court’s opinion in Brown, when Black parents feared sending their children to white areas where their children would be in physical danger. 

After Brown, Cincinnati schools faced its own federal school segregation challenges. In 1963, Black parents brought a class action lawsuit against the Cincinnati Board of Education in Deal v. Cincinnati Board of Education that challenged racial imbalances in the schools. Specifically, the parents challenged the Board of Education’s refusal to accept the concept of de facto segregation and refusal to bus students to attempt to create a racial balance in the schools.  Because the court did not find a discriminatory intent in the design of the school, the court declared that the parents “failed to establish a deprivation of rights under the law or under the Constitution of the United States.”  

Then, in 1975 Black parents again challenged the Cincinnati school system in Bronson v. Board of Education. After ten years of litigation, the Board of Education agreed to a settlement with the parents that gave the Board of Education flexibility in the methods for desegregating. According to the settlement, $35 million would be spent on development and expansion of alternative schools and remedial programs. The agreement produced a 1991 deadline to reduce district-wide segregation.   

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Today, most children in Cincinnati attend segregated schools. Schools are not only segregated by race, but by income as well. The result is a system of separate and unequal schools.  

Cincinnati’s public high schools are predominantly attended by students of color. What’s more, all but two schools are concentrations of poverty. In eleven of the thirteen public high schools listed above, over 95 percent of the student population experience poverty.  The public high schools without concentrations of poverty are more integrated. In contrast, Cincinnati’s private high schools are predominantly white. In four of Cincinnati’s private high schools, over 90 percent of the student population is white. The immediate question is: why? While some private schools provide scholarships to their students, none of the schools surveyed claimed to provide a full scholarship covering the entire tuition. Moreover, most of Cincinnati’s private schools were founded in the Jim Crow era. Referral systems and admissions criteria that include legacy status perpetuate racial disparities in Cincinnati’s private schools. 

Cincinnati Public Schools 
School  Percent of White students  Percent of students-of color  Percent of economically disadvantaged students 
Aiken High School  5.4%  94.7%  96.2% 
Clark Montessori High School  38.3%  60.6%  36.2% 
Dater High School  18.8%  80.3%  97.2% 
Hughes Stem High School  6.6%  93.2%  96.2% 
Gamble Montessori High School  17.8%  81%  97% 
Oyler School  43%  55.2%  98% 
Riverview East Academy  38%  60.2%  97.1% 
Taft High School  3.1%  96%  97.1% 
Shroder Paideia High School  3.8%  94.3%  97.5% 
Walnut Hills High School  59.1%  40.8%  17.5% 
Western Hills High School  13.5%  85.6%  96.1% 
Withrow University High School  4.1%  95.8%  96.5% 
Woodward High School  2.2%  97.3%  96.6% 

 

Cincinnati Private Schools 
School  Percent of White students  Percent of students of color  Price 
Summit Country Day School  70%  26.7%  $21,800 
St. Xavier High School  82%  18%  $14,995 
Ursuline Academy  85.6%  14.4%  $13,695 
Elder High School  92.6%  7.4%  $10,800 
Mount Notre Dame High School  90.4%  9.5%  $11,995 
Roger Bacon High School  60%  39.7%  $8,850 
La Salle High School  85.7%  14.4%  $11,575 
Seven Hills  64%  34.7%  $26,570 
Cincinnati County Day  68.9%  22.5%  $25,380 
Cincinnati Hills Christian Academy  78.6%  21.5%  $15,675 
Archbishop Moeller High School  86%  13.7%  $14,350 
Miami Valley Christian Academy  82.7%  15.6%  $9,500 
Archbishop McNicholas High School  94.2%  5.8%  $10,950 
Mercy McAuley High School  94%  3%  $10,950 
Seton High School  92.3%  7.8%  $10,400 

 

The problem is not just enrollment demographics. The unconscious discrimination and history of racial oppression permeates American education. As Gloria-Ladsen Billings and William Tate argue in Toward a Critical Race Theory of Education, America developed an education system that exists without authentic voices of people of color, that confers whiteness as a positive behavior trait, that provides inadequate facilities and curricula, and ultimately one that segregates students both inside and outside of the school through student tracking and “gifted” programs.  

In 2018, the Legal Defense Fund released a report titled Our Girls, Our Future,on the disproportionate punishment that  students of color across the country face. It explained the degree to which Black girls face exclusionary and punitive measures that push Black girls out of school for dress code violations and subjective offenses like “disruption”, “defiance”, and “speaking out”. Black students were the only students arrested in Baltimore City school. Black girls were five times more likely to be referred to Maryland’s juvenile justice agency and faced longer periods of detainment. This disparate treatment of Black girls in schools is also the focus of Dr. Monique Morris’s book, Pushout, which describes the cultural disconnect between Black girls and educators that creates a hostile environment at school, rather than a nurturing space for growth.  

The disparate treatment of Black students is not unique to Baltimore schools. According to the U.S. Department of Education’s Office of Civil Rights, in 2015, Black students were disproportionately suspended and were the only students expelled in Cincinnati public schools.  

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Source: United States Department of Education Office of Civil Rights, Cincinnati District Discipline Report, 2015 (https://ocrdata.ed.gov/Page?t=d&eid=27210&syk=8&pid=2539 

Despite the pronouncements of Brown v. Board of Education and later school desegregation cases, Cincinnati remains at the mercy of its old foe, segregation. Throughout the city, color lines etched into neighborhood borders restrict access for people of color. City structures grown out of an era of racial subordination perpetuate white supremacy through colorblind policy measures or pernicious administration. Despite the recent U.S. Supreme Court pronouncements, the way to stop discriminating on the basis of race is to first acknowledge discrimination on the basis of race. Then, we can talk.  

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Matthew Doktor is a 2L at the University of Cincinnati College of Law. He is currently a fellow at the Ohio Innocence Project and an associate member of UC’s Law Review. Matthew’s previous work includes education and research.

Get Out of Jail Free

Guest Contributor: Darceny Winston 

           Imagine playing Monopoly, but each player starts with a different amount of funds. You start the game, buy a property, then land on “Go to Jail”. You move your piece to that space then wait until your next turn to pay the $50 to get out of jail. Unfortunately, you started the game with only $50, which you already spent on your property, so you must sit in jail to figure out how to pay the “get out of jail” fee.  While sitting in jail, you cannot collect any payment from that property and in fact, you must sell your property to make enough money to get out of jail. However, the player who started with $100 and gets sent to jail has no issue leaving the jail quickly. Essentially, this is the inequality of monetary bail.

Freedom Should Not Be a Game of Chance

            Judges set bail to ensure people attend trial and to keep the public safe by keeping violent or repeat offenders in jail. However, when a judge sets a bond too high for a person to meet, that person is restrained in jail until his/her trial.  The people affected by monetary bail are awaiting trial; they have yet to go through a trial and be found guilty of the offense they were charged with. Rather, they are forced to wait in jail for their trial solely because they cannot afford to pay bail, all while they are presumed innocent.

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Source: Chris Potter/Flickr/CC BY 2.0

            Nationally, minorities are more likely to be arrested than white individuals because of over-policing in their communities. For example, once arrested, African Americans, particularly those 18 through 29, receive higher bond fees than white individuals. The higher likelihood of African Americans having contact with the justice system blended with the expectation to pay a higher bail fee results in an inequality of minorities being detained. A 2012 study discovered that the rate of African American individuals detained in jail until trial was almost five times higher than detained white individuals.

            According to a 2015 local news report, 51percent of inmates processed in the Hamilton County Justice Center in 2014 were African American. However, the number of arrestees is twice the amount of the African American population as a whole residing in Hamilton County. This implies that the African American community in Hamilton County is disproportionately affected by the justice system. Because African American individuals are more likely to be arrested and detained, their incarceration results in long term suffering for their families and communities. Incarceration leads to job loss, which leads to income loss, which leads to eviction, and even leads to losing custody of children.

            Cincinnati is making great strides in correcting the inequality of monetary bail. In April 2019, the Cincinnati City Council approved a motion eliminating city prosecutors from requesting monetary bail for non-violent misdemeanor offenders. While this was primarily enacted to eliminate wealth as a factor in determining who is detained in jail, there was also motivation to conserve financial resources as the Ohio Justice and Policy Center discovered that incarcerating one person at the Hamilton County Justice Center costs about $69 per day.

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Source: Fandom

            Before the motion was passed, about 75percent of people arrested were forced to wait for their trial in the Hamilton County Justice Center solely because they could not afford to pay bail. City Council, led by Councilmember P.G. Sittenfeld, shifted from monetary bonds by instructing city prosecutors to seek an “own recognizance” bond that allows individuals accused of non-violent misdemeanor offenses to leave jail before trial without being subjected to a bond fee.

One Man’s Low Bail is Another Man’s High Bail

            The reform effort is not without push-back from the Hamilton County Prosecutor’s Office. Hamilton County Prosecutor Joe Deters does not believe there is a need for a bail reform effort in the county court system and is “baffled why people continue to argue that bail reform is an issue in Hamilton County.” The Hamilton County Prosecutor’s Office agrees that non-violent misdemeanor offenders do not always need to be held before trial and releasing these individuals before trial saves taxpayer money. However, the Prosecutor’s Office has discretion in seeking bonds when necessary, such as to ensure the arrestee attends trial or to protect the community. While the Prosecutor’s Office may only suggest high bonds when it is necessary, the Prosecutor’s Office is assuming the low bonds recommended are, in fact, low. By not taking into account an individual’s socio-economic status, the Prosecutor’s Office recommendation of a $1,000 bond with the requirement that $100 must be paid before leaving is effectively the same as a $100,000 bond with a requirement of a payment of $1,000 for members of low-income communities.

            The Hamilton County Public Defender’s Office realizes it is not enough to require the city prosecutor to release non-violent misdemeanor offenders without imposing monetary bail. Rather, there needs to be a complete bail reform extending to the Hamilton County Prosecutor’s Office. Since the county is not currently required to release non-violent misdemeanor offenders on their own recognizance, the Public Defender’s Office is urging the judges setting bail to consider not only the likelihood of an arrestee reoffending, but also the individual’s ability to pay when determining the bail amount. If an individual does not have an income or has a low income, requiring him or her to pay any fee in order to be released would constitute excessive bail under the Eighth Amendment. Therefore, the Hamilton County Prosecutor’s Office should adopt a blanket policy that allows for releasing non-violent misdemeanor offenders.

Goals for the Future

            While Cincinnati as a city is taking steps in improving the bail system to be less centered on a person’s wealth, there are still improvements that can be made in Hamilton County. Leading the way in improving the bail system on a national level is Harris County, Texas. In 2018, Harris County became the first case to question the cash bail system in federal courts. Harris County was using a fee schedule system to set bail based on the charge. A woman filed a lawsuit against Harris County claiming that using a fee schedule in determining her bail amount violated her due process and equal protection rights because this process allowed those who could afford bail to pay and punished those who could not. The court determined the fee schedule was unconstitutional because it discriminated against misdemeanor defendants who could not afford to pay their bail. Harris County is now implementing a policy of automatic release of low-level misdemeanor detainees, as well as providing resources to them while they await their court date, such as reminders of when they must appear in court chance-card-vintage-monopoly-get-out-of-jail-free-design-turnpikeand transportation support services.

The City of Cincinnati is working to make arraignments fair for individuals of all socio-economic backgrounds. However, Hamilton County needs to recognize the inherent discriminatory issues with monetary bail, take a lesson from Harris County, Texas, and allow all non-violent misdemeanor arrestees a “get out of jail free” card, rather than the select few who can afford it.

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Darceny Winston is a 2L at the University of Cincinnati College of Law. She has a passion for criminal defense and is currently a fellow for the Ohio Innocence Project and an executive member of the Criminal Law Society. Though originally from Louisiana, she now resides in Northern Kentucky with her 2 cats.

 

Whiteness and The Benefit of the Doubt

Guest Contributor: Caitlin Cliff-Perbix 

One swampy afternoon in September I made the mistake of convincing myself that I had time during my lunch hour to run a few errands and get a quick, healthy lunch. In the frenzy of grabbing my garment bag filled with thrifted blazers that I had planned to alter (a tip for all you public interest folks) as well as my stack of nearly-overdue library books, I forgot my wallet.

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I was sweating through my jumpsuit when I arrived at Allez —a community bakery in Over-the-Rhine.  I picked out a seltzer (lime) and a veggie sandwich from the fridge but realized my mistake when I reached into my pocket to pay.

“Don’t worry about it! Just get us back the next time you’re here!” chirped a man bustling behind the counter—kindly waving-off my stuttered apologies as he slung fresh, crusty loaves to the lunch crowd.

I am built to worry though. I rummaged through my backpack while I asked for another option to pay.

“Do you have the Cash App? Or Venmo maybe? I really don’t want to walk out of here with a sandwich without paying.”

“It’s really fine! Just come back and pay when you have your wallet on you again.”

Still, I persisted. The idea of not paying a small business for my meal made me uncomfortable.

“Could I write down my order so that when I come back you know that I’m paying for what I took?”

He smiled, shook his head, and reassured me again.

“Really, it’s okay. Just pay us back when you can.”

That week I stewed over the interaction at Allez. I wondered how the interaction would have played out if I had a visible disability, or if I appeared to be experiencing homelessness, or if I had not been white-presenting in a gentrified neighborhood.  How did the man at Allez make the judgment call to give me a free meal and believe that I would pay him back?

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Businesses have no obligation to give away their labor, services or products for free; and as long as they do not refuse a patron service based on a legally protected status, they are not breaking the law. However, what I really wanted to know was if my whiteness was acting as a symbolic promissory note. Did it make me more trustworthy? No. But did it signal to the man at Allez that I was more trustworthy? That was my concern.

The following week I returned to Allez to pay my sandwich-debt when the lunch rush had quieted.

I learned that the man who I had spoken to is the owner of Allez—Tom Mckenna. I thanked him for giving me the benefit of the doubt, then quickly added “but why did you do it? What about me indicated to you that I would come back?

To that, he simply responded “I do it for everyone.”

Tom told me that he came from a background of financial insecurity. When he had the opportunity to become a business owner, he said that he wanted to create a bakery that would feed everyone regardless of their circumstances. It is his practice to always give customers the option to pay later if they don’t have any money and he purposefully does not count his till at the end of each day.

“Most people come back and pay. Some people don’t. The point is that they are getting fed.”

If you’re reading this and thinking “He gave you a free sandwich, and you paid him back. So what?” —then you are asking the right question. What does this seemingly innocuous exchange mean in a broader cultural context?

Tom’s policy is important because instead of making judgment calls based on seconds-long interactions with patrons, he is removing an element of bias from his business practice.

He said that he has a similar blanket policy for his bathroom—the bathroom is for employees only. Although, he added that he has made exceptions for people with children.

Tom’s policy is so significant because when we choose to give people the benefit of the doubt, our biases play a role in determining who is trustworthy, and therefore deserving of our kindness.

What happens when our biases take over and we do not give people of the doubt? In 2018, a Starbucks employee in Philadelphia called the police because an African American patron tried to use the restroom before he bought a coffee. I have personally relieved myself in countless Starbucks, chain restaurants, and miscellaneous gas stations without buying anything.  No one has ever questioned my actions or right to exist in those spaces, and I am willing to bet that no one ever will.

In an even more horrific example, in 2015 a white University of Cincinnati campus police officer shot and killed Samuel Dubose, a 43-year-old African American man. The officer allegedly stopped Dubose because he had a missing front license plate[1]. I once drove my car for five months with a broken taillight. During that time, I drove through the same area where Dubose was shot and killed, and neither my white husband nor I were ever pulled over. We are always given the benefit of the doubt.

This phenomenon is not confined to our daily social interactions. It exists in every facet of American society— even within the professedly “objective” walls of the legal system.

Brock Turner and Amber Guyger are two examples of people who have been given the benefit of the doubt by the legal system because they are white. I am not angry that Brock Turner sat in jail for only three months after he sexually assaulted Chanel Miller while she was unconscious (okay, I am because three months in a county jail is hardly punishment to an affluent Stanford student). I am angry because his judge, Aaron Persky, chose to see Turner’s humanity and potential—however, despite being permitted to use discretion in his position, Judge Persky historically would not give that same benefit of the doubt to the young black and brown men coming before his bench.

I am not angry that Amber Guyger was sentenced to just ten years in prison (which I would argue is substantial, but that is another matter) for murdering Botham Jean. I am angry that it took a majority-black jury to convict a white police officer for the murder of an unarmed black man in his own home. I am angry that black and brown humans are in prison and have been in prison far longer than ten years for non-violent offenses because white judges and juries put those black and brown humans there. This is because judges and juries are given discretion under the guise of “objectivism” while overlooking that we all carry biases.

When we pretend that bias does not exist it creates a ripple effect that may begin with our social interactions but ultimately disrupts our legal system. While policy solutions may exist, what we need is a cultural shift. The United States justice system, despite what some lawyers may believe, does not exist in a vacuum. Confronting our biases is uncomfortable and painful work, but that confrontation is the only route toward creating a society that administers true justice.

I challenge my white-presenting peers to pause and evaluate the mundane social interactions that occur each day and think about how your race, sex, gender identity, gender expression, sexual orientation, age, ability and the combination of these attributes play into how you are being treated.

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I then urge you to pause and observe others. Do you see the same kindnesses being afforded to others? Do you give others the benefit of the doubt indiscriminately? While it is crucial we hold our systems accountable, we must start by looking inward first.

Caitlin Cliff-Perbix is a 2L at the University of Cincinnati College of Law.  She is the offspring of educators, musicians, & immigrants, and is a fellow for the Nathanial R. Jones Center for Race, Gender and Social Justice. She is a native of Licking County and resides in Northside with her husband.

[1] Front-license plates are required by law in Ohio.

Judge Nathaniel R. Jones: A Life of Wisdom, Courage, and Moderation

Guest Contributor: Dean Joseph P. Tomain

Giants do walk the earth. There are heroes among us. And, on January 26, 2020, Judge Nathaniel R. Jones, a legal giant and a hero to many died at the age of 93 after eight decades of fighting for civil rights, of fighting for justice.

Judge Jones was a direct legal descendent of Walter White, William Hastie, Thurgood Marshall, and Robert Carter. As a recipient of the highest awards given by the National Underground Railroad Freedom Center, the Freedom Conductor Award, and by the NAACP, the Spingarn Medal, his name is forever linked with artists such as Marion Anderson, Duke Ellington, and Richard Wright; with historical figures such as Rosa Parks, Dorothy Height, John Lewis, and John Hope Franklin; and with friends such as Leon Higginbotham and Quincy Jones. His life and service have also been recognized by world leaders including Nelson Mandela, Bill Clinton, and Barack Obama. Impressive company, indeed.

Judge Jones with Nelson Mandela
Judge Jones, along with his wife Lillian Jones, speaking with Nelson Mandela. Source — Cincinnati Enquirer.

As a lawyer, he served in private practice, as Assistant U.S. Attorney, as General Counsel of the NAACP, as a Supreme Court litigator, and, after 23 years on the United States Court of Appeals for the Sixth Circuit he was a valued Biglaw partner for two decades. His resume as a lawyer is incomparable. However, being the giant that he was even a field as capacious as law was insufficient to contain his talents and his interests. Does any reader know, for example, that he harbored a desire to captain an Ohio River coal barge? His daughter Stephanie made that happen.

Judge Jones at Fed Courthouse
Judge Jones standing outside of the Nathaniel R. Jones Federal Building and U.S. Courthouse in Youngstown, Ohio.  AP Photo/Ron Schwane

Judge Jones’ life story from his Youngstown youth to the well of the United States Supreme Court and from his membership on the Kerner Commission to serving as an election observer in South Africa is told with great grace in his 2016 memoir Answering the Call: An Autobiography of Modern Struggle to End Racial Discrimination in America. Judge Jones heard the call to fight for justice when he was a 10-year-old and he never wavered, he never ignored racial injustice, he never stopped fighting against it. He was answering the call right up to his last speech on civil rights at the dedication of the Nathaniel R Jones Center on Race, Gender and Social Justice at the University of Cincinnati College of Law on November 14, 2019.

Answering the Call is required reading for anyone who wants to know about the many lives of Judge Nathaniel R. Jones; it is also required reading for anyone who wants to understand the history of civil rights over the last 80 years.

 

One of the lesser-known aspects of Judge Jones’ career is that he was a superb teacher and scholar. His scholarship can be found in law review articles and is manifest in his many public speeches. He was a remarkable teacher in many venues. For over 30 years he served as an adjunct professor at the University of Cincinnati College of Law. He also taught at Harvard, Yale, Stanford, any number of other United States law schools, and in Cincinnati public schools. Even though he was a formidable classroom teacher, his teaching role transcended the classroom and affected every phase of his life. Just ask any of the dozens of law clerks that he has shepherded throughout his 23 years on the bench. Those clerks have become leaders in private practice, law professors, cabinets secretaries, and outstanding public servants.

Judge Jones on the bench
Judge Jones hearing a case at the Sixth Circuit Court of Appeals in 1989. John Curley/Cincinnati Enquirer

Still, his teaching reached beyond his chambers and beyond the court room. He was unstinting in his community service. As a member of corporate and nonprofit boards his teaching continued. Indeed, as a board member he might best be characterized as a CCO – chief conscience officer. His participation in board meetings was always germane and on matters of justice and civil rights indispensable.

What qualities, gave Nathaniel R. Jones such stature as a civil rights voice and leader and as a citizen committed to justice?

 

Judge Jones possessed an abundance of the virtues needed to live an outstanding life; to live the life of a hero. He possessed wisdom; he possessed a piercing intellect. Judge Jones was a principal actor in many of the key civil rights activities over the last half-century and more. He knew everyone. He knew his history, his politics, his society, and his community. He remembered everything. And, he was able to bring all of that intellect and knowledge and all of those experiences together to confront racial discrimination in the United States and in other parts of the world.

He possessed the courage to keep his eyes open and speak his mind when confronted with injustice and he had an extraordinary capacity to focus. He never wavered in his commitment to civil rights; he never lost sight of the need for constant awareness of civil rights violations and the need to recognize them where they existed. No forum was inappropriate for him to acknowledge racial bigotry and discrimination. No audience could prevent him from talking about his passion.

Judge Jones w: Prezs Carter and Clinton
Judge Jones speaking with former President Clinton, former First Lady Carter, and former President Carter. Glenn Hartong/Cincinnati Enquirer

He also possessed moderation. Politics of any kind can be intense and contentious. Racial politics can draw bloodshed and has been fatal. In the face of such contention his voice was always steady and clear; forceful and persuasive; and never shrill, never false, never expedient. He spoke his mind in the world with dignity, diplomacy, and deep humanity.

In Judge Nathaniel R. Jones, the virtues of wisdom, courage, and moderation that he possessed in such abundance contributed to and advanced the cause of justice for all of us.

Joseph P. Tomain is Dean Emeritus and the Wilbert and Helen Ziegler Professor of Law at the University of Cincinnati College of Law. He served as Dean of the College for 15 years, where he continues to teach now. His areas of expertise include energy law, land use, government regulation, and contracts. He has written numerous books, papers, and articles covering those topics and more. Dean Tomain has presented his scholarship in front of numerous distinguished groups including the Conference of Chief Justices, the Association of American Law Schools, the American Bar Association, the Federal Bar Association, the Cincinnati Bar Association, and the US Sixth Circuit Conference. He also serves on the Boards of a number of professional and civic organizations, including the Ohio Justice and Policy Center.

What is the Ohio “Heartbeat Bill,” and How Did it Come to Be?

It appears that the Ohio legislature’s 8-year wish will finally come true. The controversial “heartbeat bill” is poised to go into full effect in Ohio after both chambers of the Ohio legislature passed the resolution for the third time since it was first taken to the Ohio General Assembly floor. First introduced in Ohio in 2011, the bill was twice vetoed by former Ohio governor John Kasich, and failed to garner enough votes to override the veto both times. Now, with first-term governor Mike DeWine at the helm, the bill is sure to survive.

Passed as Ohio House Bill 68 and Senate Bill 23, the “heartbeat bill” makes abortion illegal once a fetal heartbeat is detected, which could be as early as 5-6 weeks after pregnancy. The bill only permits abortion after a heartbeat is detected if a woman is experiencing a medical emergency. The bill does not provide an exception for rape or incest.

The controversial legislation was authored by Janet Porter, a pro-life activist who lobbied for the passage of the country’s first partial-birth abortion ban, and secured passage of the Woman’s Right to Know Law. Porter says she and others “literally crafted [the] legislation to be the arrow in the heart of Roe v. Wade. It is made to come before the United States Supreme Court.” Anticipating the retirement (or worse) of the Court’s aging, liberal justices, Porter is hopeful that challenges to the bill will arrive at the Supreme Court when there are additional conservative justices that will uphold the bill once it is Ohio law and, perhaps, overturn Roe v. Wade.

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Hot Topics

Politicians and Blackface

Recently, Florida Secretary of State Mike Ertel resigned after photos of him dressed in blackface as a Hurricane Katrina victim surfaced. Ertel was appointed as Florida Secretary of State by first-term governor Ron DeSantis. Governor DeSantis, a Republican, defeated Andrew Gillum – the first African American democratic gubernatorial candidate in Florida – last November in the election. Ironically, (perhaps not), DeSantis is the same man who told Floridians just days before the election: “the last thing we need to do is monkey this up…” This was a clear reference to Mr. Gillum’s race, and a message to Floridians not to elect the state’s first Black governor. Apparently, Governor DeSantis’s Secretary of State shared some of the same racial sentiments as the man who appointed him. 

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Image from Orlando Weekly

Blackface was one of the most notable features of minstrelsy. What, ironically, started off as African American slaves mimicking slave masters and owners turned into white people putting burnt cork or shoe polish on their faces and acting as Black caricatures.

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T.H.U.G. L.I.F.E: Tupac’s Message Manifested Through a Fictitious Reality of America in 2018

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Khalil and Starr in The Hate U Give. Image from 20th Century Fox

The Hate U G[a]ve Little Infants F**ks Everybody, meaning What you feed us as seeds grows and blows up in your face”

– Tupac Shakurpac.jpg

The Hate U Give is a powerful, must-see-drama/thriller. While the film is heart-wrenching, its message leaves its viewers with much optimism. The film was inspired by a phrase coined by the late, iconic rapper Tupac Shakur: “T.H.U.G. L.I.F.E.” Throughout his 25-year life, Tupac revolutionized the music industry with hits like “Dear Mama,” “Keep Ya Head Up,” “Changes,” and dozens more that would inspire generations to come. ‘Pac also used his platform to shed light on how racism was the catalyst for social and political issues facing the Black community, such as poverty and police brutality. These are constant themes present in The Hate U Give.

In The Hate U Give, director George Tillman, Jr. highlights one of American society’s most sensitive topics: racism. Particularly, it examines racism manifested through police brutality, microaggressions, implicit bias, and cultural appropriation. The plot emanates from the shooting death of an unarmed Black teen, Khalil, at the hands of a white policer officer. Starr Carter, the main character in the movie and Khalil’s lifelong best friend, witnesses the shooting.

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Nowhere to Sleep: The Homelessness Problem in Cincinnati

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Image from Cincinnati Enquirer

This past month has been quite eventful for individuals who once called home a particular area in downtown Cincinnati – a group stricken by homelessness.

The downtown area that a group called home was under a cluster of overpasses at Third and Plum Streets. The group – comprised of around 50 individuals – set up a tent encampment under the overpass where they had slept for months, or maybe even years. The area, which is close to several parking lots used by people working downtown, housed the tent camp; hundreds of individuals passed by and through the area every day to get to and from work.

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