Can All of Us Learn from Mississippi?

William Tucker Carrington (University of Mississippi – School of Law) has posted Mississippi Innocence: The Convictions and Exonerations of Levon Brooks and Kennedy Brewer and the Failure of the American Promise (Georgetown Journal of Legal Ethics, Vol. 28, No. 123, 2015) on SSRN.

Here is the abstract:

After spending a combined thirty-two years behind bars for crimes they did not commit, Levon Brooks, sentenced to life, and Kennedy Brewer, sentenced to death, were exonerated in February, 2008, in Noxubee County, Mississippi. Close attention to innocence cases like these offer a valuable forensic opportunity to observe from ground level just how the criminal justice system works, or doesn’t. Because they occurred in rural Mississippi, the Brooks and Brewer cases present a unique opportunity to consider what contemporary scholarship refers to as our criminal justice system’s new form of Jim Crow: a system of facially colorblind criminal laws that as applied and prosecuted currently imprison masses of poor blacks and relegates still others to lives of permanent second-class citizenship. By establishing the rich historical context in which these two cases occurred, and then engaging in a first-hand account of the crimes, investigations and trials, this article argues, that among other scholarship and commentary, “The New Jim Crow” school of thought neglects what is perhaps the most pernicious failure of true justice: the co-opting of formerly progressive law and policy in order to camouflage what is really nothing more than institutionally sanctioned lynching. While seminal cases like Gideon v. Wainwright and Batson v. Kentucky, for example, which guaranteed the right to counsel and minority representation on criminal petit juries respectively, are honored in letter, the ultimate effect is hortatory and cynical. They are now used to mask a much more sinister result: the affirmative manipulation of what were once true gains in due process and equal protection into measurable false promise and palpable human tragedy. Over time, the efforts to rid the criminal justice system of bias and bigotry – of “Jim Crow” – have been used instead to mask the fact that they are now built into its very structure and doctrine.

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