September 20, 2013 (New York, NY) – Today, the Puerto Rican Bar Association (“PRBA”) – the oldest ethnic bar association in New York – announced its support for a Constitutional Amendment to remove age restrictions on the New York State judiciary (Proposition 6). The PRBA Board of Directors asks New York State voters to vote YES on Proposition #6. This constitutional limitation, originally passed in 1869, operates today as a discriminatory and arbitrary rule, one which should have been eliminated decades ago. As a matter of law, this constitutional retirement age requirement for judges is the only one of its kind remaining in New York State. Ironically, it has been the public policy of New York State since the 1980’s to prohibit employers from subjecting their employees to mandatory retirement in both the public and private sectors. The time has come for voters to do away with this constitutional prohibition by voting YES on Proposition #6. Court filings have increased 56% over the past 30 years, while the number of judicial positions has only increased a paltry 8%. Voting YES on Proposition #6 is a matter of sound public policy to help curb our crowded court dockets. A YES vote on this proposal will help to reduce a backlog of cases that hampers our legal system and would make resources available where they are needed most — in poor and underserved communities. By approving Proposition 6, New Yorkers will strengthen the judiciary by retaining its most experienced judges. The Puerto Rican Bar Association is committed to working with its members and community to help pass Proposition 6 and bring New York State’s Constitution in line with the 21st century.
Melissa, a Jamaican-born mother of two, has been in detention since 2010. Eleven years ago, Melissa pled guilty to simple assault and obstruction of justice charge for breaking up a conflict between a security guard and her boyfriend in a Virginia Beach skating rink after their belongings were stolen.
Melissa served time for her offence back in 2002. But she did not know at the time that, for non-citizens, an obstruction of justice misdemeanor counts as an aggravated felony. When she tried to apply for citizenship in 2009, she was placed into deportation proceedings. More than a decade after first having contact with the criminal legal system, Melissa was forced to leave behind her family and her 5-year-old twins — one of whom is autistic and requires especial attention. She is currently fighting deportation.
By Elena Goldberg and Elba Galvan
The Supreme Court will soon issue a decision in Fisher v. University of Texas. Abigail Fisher, the white plaintiff, challenges the consideration of race in the admissions policy of the University of Texas (UT). Fisher claims that the university’s top 10 percent plan (a facially “race neutral” admissions plan that guarantees admission to the top 10 percent of all high school graduates in Texas) is sufficient to admit a “critical mass” of minorities and that the consideration of race (for the remaining spots) unfairly excluded her.
It’s easy to see why someone unfamiliar with our history and ongoing racial inequities would impulsively disagree with the use of race as a factor in admissions. We know it’s wrong to treat people differently based on their skin color. However, this does not contemplate the full narrative of UT’s admissions policies. For many institutions of higher education, failing to consider race, exacerbates a real and existing problem of social mobility among minorities.
A major justification for affirmative action-type programs in academia is the educational benefit of a racially diverse student body at colleges and universities. Grutter v. Bollinger, 539 U.S. 306 (2003). However, “affirmative action” is important for reasons other than enhancing diversity. While legally courts feel obligated to parse out the value of minority perspectives, we are also obligated to view minority underrepresentation in academia critically.
Two things make clear that affirmative action in academia has not outlived its purpose: 1) The history of discrimination against minorities, and 2) racial disparities in most sectors of society (education, employment, income, home ownership, and healthcare, to name a few). For example, Latinos are approximately 16 percent of the population, but only four percent of the nation’s lawyers.
Less than 50 years ago, we passed the Civil Rights Act, which banned racially discriminatory practices. As a nation, we have existed almost five times as long. To think that in just a few decades we have reversed our nation’s long history of discrimination is naïve. Gross racial disparaties in education and employment are a painful reminder that we have not.
It is a fiction that our Constitution mandates a color-blind society, and that legally we can’t be mindful of the underrepresentation of minorities in academia. The framers of the 14th Amendment passed numerous race-conscious initiatives to aid the integration of African-Americans. For example, the Freedmen’s Bureau Bill created a federal bureaucracy whose sole mission was to provide assistance to African-Americans, including employment and educational opportunity by creating schools for their education.
Advocates for a “color-blind” approach (as in, disallowing race as a factor into college admissions) fail to recognize the context under which “affirmative action” policies were born. For example, the African-American plaintiff in Sweatt v. Painter (1950), successfully challenged his exclusion from UT’s law school based solely on race. In contrast, Fisher did not claim a history of discrimination; the vast majority of the incoming class in 2008, the year she was rejected, was white. In fact, UT’s holistic admissions policy is very similar to the one that passed constitutional muster in Grutter. These are just a few reasons to defer to UT’s race conscious admissions process.
In order to get beyond both our historical inequities and continued racial disparities, we must accord educational institutions the deference to tailor appropriate admissions policies. One day, when minorities are truly and thoroughly included, we hope race will no longer be a factor.
By Catherine Torres and Elba Galvan
It is a well-known precept that a prosecutor’s role is to search for truth and justice and ensure that a fair trial is conducted, rather than focus on “winning” the case.
As succinctly stated in Berger v. United States, 295 U.S. 78, 88 (1935), a prosecutor “is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
A prosecutor is uniquely situated in a position of trust, someone who in effect evaluates the facts and whose presentation of the evidence carries with it the approval and endorsement of the government. As such, a prosecutor’s duty is to help ensure that criminal trials are conducted fairly to encourage confidence in our system of justice.
Notably, the progeny of cases in New York that have applied Berger emphasize that regardless of a prosecutor’s intentions, a criminal trial must be beyond suspicion of reproach and must, above all, appear fair. (People v. Savvides, 1 N.Y.2d 554 (1956), People v. Adams, 21 N.Y.2d 397 (1968), People v. Zimmer, 51 N.Y.2d 390 (1980), People v. Williams, 7 N.Y.3d 15 (2006)).
In contrast, a defense attorney whose client has declared his innocence, is obligated to zealously represent her client. In other words, a defense attorney has the duty to attempt to defeat the prosecution’s case. “If he can confuse a witness,
even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will be his normal course.” United States v. Wade, 388 U.S. 218, 257 (White, J., concurring).
A prosecutor’s duty to promote confidence in our judicial system is especially important during jury selection. We suggest that a way to improve upon the fairness in criminal trials is to eliminate prosecutorial peremptory challenges.
New York’s Law
New York law allows prosecutors to utilize peremptory challenges, that is, the ability to exclude prospective jurors without providing a justification (CPL 270.25). In other words, a prosecutor may eliminate jurors without offering a reason. Does the arbitrary exclusion of jurors by a governmental representative promote fairness?
U.S. Supreme Court Justice Thurgood Marshall suggested a quarter of a century ago in his concurrent opinion in Batson v. Kentucky, 476 U.S. 79, 107 (1986), that peremptory challenges should be eliminated:
“The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.”
We further suggest that the promotion of confidence in a prosecutor’s search for truth justifies the elimination of prosecutorial peremptory challenges.
Certainly, potentially stacking a jury in favor of conviction falls short of a prosecutor’s duty to present her case fairly. It is unlikely that a prosecutor would want a jury chosen in this manner to carry her own conviction.
The use of peremptory challenges by prosecutors inevitably affects the integrity of criminal proceedings. The practice is inconsistent with the prosecutor’s duty to seek truth because it permits a prosecutor’s conscious or unconscious bias to influence her decision making.
A prosecutor should be obligated to state on the record her specific objections to a potential juror. This would permit the defense and court to determine whether the objections are justified or merely a pretext designed to obscure bias.
Prosecutorial openness in jury selection promotes transparency and serves the objectives of a democratic government.