Nick asks Adrian Kamada, Stacey Eads, Michael Acosta…
Equity
How do you plan to combat systemic racism in our local criminal justice system? What work have you done previously to promote systemic equity?
— Nick
Responses
Michael Acosta
RACIAL INEQUITY
[Part I]
IT TAKES A GENERATION TO REMOVE SYSTEMIC RACISM
When talking about systemic racism, it’s hard not to begin with the United States Supreme Court’s decision in Brown v. Board of Education of Topeka 347 US 483 (1954), which held that intentional and discriminatory institutional segregation based on race in public schools violated the the fundamental right of Equal Protection as guaranteed by the 14th Amendment of the United States Constitution, overturning 58 years of “separate but equal” jurisprudence following Plessy v. Ferguson 163 US 537 (1896). What most people, including attorneys, don’t realize is that the first case to actually hold that segregation itself violated the Equal Protection Clause of the 14th Amendment was a case filed by a Jewish civil right lawyer named David Marcus for members of LULAC (the League of United Latin American Citizens), and co-counseled by future Supreme Court Justice Thurgood Marshall from the NAACP (the National Association for the Advancement of Colored People), called Mendez, et al v. Westminister School District of Orange County, et al, 64 F.Supp. 544, aff’d, 161 F.2d 774 (1947), which ended the “de jure” segregation of Mexican-American students in California schools. [Well, almost ended it, as I will explain.] Cases prior to Mendez filed by the NAACP had only argued that segregated schools violated Equal Protection because of the disparity in resources, not that racial segregation itself was unconstitutional. Marcus’s legal arguments in Mendez essentially “beta tested” the legal arguments Thurgood Marshall would use years later before the Supreme Court in Brown to overcome the problematic arguments of Plessy, and convince the Court that separate was not equal.
On May 17, 1954, Chief Justice Earl Warren’s delivered the unanimous opinion in Brown v. Board, nearly 18 months after Thurgood Marshall’s oral argument on December 9, 1952. It took that long after the case was submitted just to make a ruling, and though the Court ordered the end of intentional and discriminatory institutional racial segregation in public schools “with all deliberate speed,” it didn’t give any guidance whatsoever on how to do it. A right without a remedy, or at least an unspecified remedy, was awarded to the Topeka, Kansas plaintiffs in Brown, which gave rise to years of litigation all over the country. Back in California, where the legal arguments for those Equal Protection rights had been perfected in Mendez, litigation to find that remedy was initiated in 1963 against the Los Angeles Unified School District as a class action lawsuit called Crawford v. Los Angeles Board of Education 458 US 527 (1982) [with published opinions in the various lower and intervening courts at 200 Cal.App.3d 1397 (1988), 113 Cal App 3d 613 (1980), 69 Cal.App.3d 66 (1977), 17 Cal.3d 280 (1976).] During the course of its two and a half decades of litigation, Crawford both mandated and implemented, and then reversed and abandoned, the practice of “busing” students as a method of desegregation in selected Los Angeles schools. One of those schools was Mountain View Elementary, where I started my education, in a place known as Sunland-Tujunga, CA, where I lived until the fourth grade.
It’s important to note how my family came to live in Tujunga. My father, now retired, was a very hard-working, self-made man all his life. At the time of these events in the late 1970s, my father had been working full-time for LAUSD as a P.E. teacher and Varsity basketball coach at Franklin High School, while moonlighting for his Ph.D. in Educational Philosophy at Claremont-McKenna College. He was transitioning into a new administrative position downtown at the LAUSD Board of Education’s main office as the Director of Certified Personnel Recruitment and Selection. My father’s capacity for success had doubled when he married my mom, a Callahan from Glendale, who was a feminist pioneer in her own right, having rejected the dated construct that a woman’s mutually exclusive choice was to raise a family or to have a career. She also worked in the field of education, received her master’s degree in bilingual education while raising three children, and taught English as a Second Language to elementary school children in East Los Angeles. So, before they met, while my father had been working his way from living in a Mexican neighborhood on the east side to a White neighborhood, my mother had been living in a White neighborhood in Glendale, working toward her teaching career in a Mexican neighborhood on the east side. And so they crossed paths.
Born during WWII in the 1940s, my father’s first bedroom, which he shared with his dog, consisted of a walk-in cupboard in an enclosed back porch at the family home on the east side of Los Angeles. Public education, for many people of color back then, was the key to upward mobility and integration in our society. That was so for my father, who knew that the educational opportunity of his father Philip had ended in the fourth grade, when full-time employment became necessary to financially support the family. So my father was thankful to have the opportunity to pursue his public education further than his father. I don’t really think he even consciously thought about his own racial integration into society, because that just came naturally in America with upward mobility. But what he did consciously envision at an early age was personal success through a commitment to study, so he prioritized being a student and then dedicated his career to the field of public education, both because he believed it was the key to success for minorities and because it was a stable source of professional employment.
For the first half of the 20th century, East Los Angeles was the only part of Los Angeles Mexican-American families could buy homes in due to racially restrictive covenants, which were deed clauses used to prevent the migration of people of color into White neighborhoods, and were especially prevalent in California and Massachusetts until declared unconstitutional and contractually unenforceable by the U.S. Supreme Court in Shelley v. Kramer 334 US 1 (1948). Those covenants were the original reason why certain races of people were concentrated in certain parts of Los Angeles, and therefore the real reason certain schools were homogeneously of one race (like South Central’s schools being mostly African-American and East L.A.’s schools being mostly Mexican-American.) The racially segregated neighborhood in which my father was raised, in the era of “de jure” segregation, had, therefore, been systemically established not by racist government policies, but by “peer to peer” racism in thousands of private real estate transactions. This fact is one that escaped the initial reasoning of the Trial Court in the Crawford litigation, thereby condemning it, however, paved with good intentions, to creating a race-erasing remedy that did not itself draw constitutionally offensive distinctions based on race, and, furthermore, to accelerating, through judicial intervention, the elusive goal of integration, however, quantified. It was thought by the Crawford court, as with many courts around the country trying to do the same, that such a noble effort would complete the circle and write the final remedial chapter of the sage opinion in Brown that, in retrospect, had so prudently left unwritten that final chapter and its impossible circle of logic.
So in 1970, the year in which I was born, the Crawford trial court found that the pupil assignment boundaries of various LAUSD schools constituted “de jure” segregation, and without any documentary evidence of discriminatory government intent, ordered LAUSD to create a plan for desegregation by 1977. This was immediately controversial because of the high degree of judicial intervention, the logistical practicalities of its ambitious goal, and the low probability of finding an effective solution that didn’t cause other procedural Due Process or race-related Equal Protection problems along the way. Governor Ronald Reagan, in a press release issued within a week of the trial court’s decision in Crawford called it an “utterly ridiculous judicial decision” and President Richard Nixon echoed his sentiment.
In these circumstances, my parents bought their first house together in 1970, in the relatively safe, predominantly White, middle-class neighborhood of Sunland-Tujunga. I was enrolled in Mountain View Elementary School, and was the only kid of Mexican ancestry in my grade for each of five years. In 1978, I was in the fourth grade, and after a flurry of litigation by Bustop, Inc., the
[^ Trombley, William (January 22, 1977). “4,000 Students Boycott 9 Schools in Busing Protest”. Los Angeles Times. p. 3. ProQuest 158155563.
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^ Boyarsky, Bill (May 15, 1977). “How Bustop Became Force in School Suit”. Los Angeles Times. p. C1. ProQuest 158292925.
^ Klunder, Jan; Maltun, Alan (August 17, 1980). “Sunland-Tujunga Parents Make It Clear at Meeting: They Don’t Want Busing”. Los Angeles Times. p. GB3. ProQuest 162879387.Sunland-Tujunga based grassroots anti-busing group touting a membership of 65,000 parents,]
Mountain View Elementary School was being required by the trial court’s 1970 ruling in the Crawford litigation to implement busing. I am still unclear if the selection of students for Mountain View Elementary School’s desegregation bus was done manually or was computer-assisted, but my parents were surprised to be informed that somehow, someway, the only student of Mexican ancestry in the fourth grade, which was me, was selected to be on the desegregation bus. Being of the same optimistic disposition as my father at an early age, the busing didn’t bother me at the time, because in fourth grade, you don’t know what “de jure” means, nor do you catch the political irony. You just go where the Teacher tells you, and the Teacher was pointing at the bus. So onto the bus, I went, to the 210 freeway, and many miles to an unfamiliar school and neighborhood. My father, now Dr. Michael P. Acosta, went to Mountain View Elementary to tell the school administrator that 1) it defeated the purpose of the desegregation mandate to bus the only Mexican-American student enrolled in Mountain View Elementary to a predominantly Hispanic school, and 2) he, a minority homeowner living in Tujunga, had already attained for his family through his commitment to public education and without government intervention, the goal of integration that busing hoped to achieve.
But, upon deaf ears, his plea fell, and so I, the only student of Mexican-American descent in the fourth grade of Mountain View Elementary School continued to be bused out of my predominantly white school to a predominantly Hispanic school in a neighborhood closer to East Los Angeles for the balance of the semester until my parents moved us out of LAUSD’s territory to Orange County.
And so it was, that, in 1978 under the Crawford plan for school desegregation following Brown v. Board of Education, and Mendez v Westminister which held that “de jure” racial segregation in public schools violated Equal Protection, I was bused “de jure” out of my school and inter-generationally re-segregated back to a Mexican-American school. True story…
I want to thank the individual who asked this question because it forced me to synthesize this personal experience with the history upon which it was based (which was an uncomfortable task) and to memorialize this experience in writing for the first time in my life, not coincidentally, I think, when my son Michael is in the fourth grade, as I was when this happened, and like my grandfather, Philip Acosta was when his educational opportunities ended.
The lesson that I take from this personal experience with systemic racism is that it takes a generation to root out systems of racism because they are not always “de jure.” Peer-to-peer systems are decentralized, generally privatized, and embedded in culture, so there is no one plug to pull.
Michael Acosta
ADDRESSING SYSTEMIC INEQUITIES
[Part 2]
I, Preface: Systemic Inequity Can Effect Us All
Much of my career has been dedicated to combating institutional oppression of human diversity, which often involves systemic racism. I will preface the discussion of my solution to racial inequities in the criminal justice system by saying that discrimination of many types of identity differences (in race, class, nationality, gender, sexuality, ability, religion, political belief, and scientific ideas} have triggered disproportionate institutional punishment by courts throughout history. As an insight into how the potential for systemic inequity could somehow impact each of us, I would like to highlight the case of Galileo Galilei, who was an educated, white male, with a highly paid and tenured university position, but who was nonetheless criminally prosecuted in 1633 by the Vatican, found guilty of heresy, and sentenced to imprisonment for life simply because his mathematical conclusions indicated that the earth moved around the sun. So when we talk about our experiences with systemic racial inequity here, it is important to note that we all have an equal stake in this discussion, including white males, because you never know how or when a hegemony will draw the next identity line in the sand to segregate one of us from the rest of us. Any one of us may someday wake up to find that our beliefs are considered heresy. As the Preamble of the Constitution enumerates exactly six purposes for the formation of our country, we should always remember that the anchor of our founders’ purposeful enumeration was and is to “secure the Blessings of Liberty,” because they were well aware that power corrupts and absolute power corrupts absolutely.
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Racial Inequity in Our Criminal Justice System
The disparity in sentencing along racial lines cannot be ignored or denied. In 2016, black male offenders received sentences on average 20.4 percent longer than similarly situated white male offenders in federal courts. Fortunately, the solution to this problem is simple, and we have already implemented half of it by tracking the data. All that is left is to reference that data before each plea negotiation and/or sentencing hearing, rather than just analyzing how inequitable our sentences were in retrospect.
Ultimately, it’s the Court that sentences those convicted of crimes, but, other than sentencing hearings following jury verdicts, 90 percent of sentencing hearings are based upon negotiated plea bargains, and the District Attorney has control over 50 percent of those negotiations. It is an abandonment of the interest of justice, therefore, for prosecutors to passively participate in sentencing hearings in light of documented evidence of racial disparities therein. In representing all of the people of the state, and given the broad prosecutorial discretion that the interest of justice allows, it is incumbent upon the Office of the District Attorney to monitor, reference, and reduce to a negligible percentage the racial disparity that exists in the sentencing of similarly situated defendants. Prosecutors should not only track relevant data on racially disparate treatment, but they must reference that data before making an offer to resolve a case or before each sentencing hearing that follows a jury verdict of guilt. I would require as part of the District Attorney’s standard operating procedures that all prosecutors conduct racial disparity checks at those times. This would solve the problem of racial disparity in sentencing, and, frankly, I am not sure why this solution hasn’t already been implemented.
III. Socioeconomic Inequity in Our Criminal Justice System
There is significant demographic overlap between race and class, but my impression is that, in terms of advantage or disadvantage, wealth has become the most salient variable of unequal justice in the criminal justice system. The fact that a defendant who is poor typically ends up with a different result than a person who is wealthy seems obvious and is just recently being addressed. Bail schedules that aren’t income-adjustable unfairly keep lower-income defendants in pretrial detention, even when they pose a minimal threat to society, and so the presumption of innocence, which has nearly been obliterated already by the unethical pretrial use of the media by police and prosecutors, becomes totally meaningless for a low-risk defendant who cannot make bail before trial. Lower-income people are also appointed to public defenders, whose offices receive only $5 million in the County budget compared to the $9 million budgeted for the District Attorney’s office, including an inexplicable $1 million dollar difference in Measure Z funding for the current fiscal year.
Then there are “front end” socioeconomic inequities in the enforcement of laws, the biggest offender of which is the selective enforcement of controlled substance laws. First of all, most of us probably don’t recall that the War on Drugs was initiated on June 17, 1971, as “a new all-out offensive” against “drug abuse” by President Richard Nixon, who stated that the program would consist of three things: worldwide intervention into “sources of supply,” government-wide coordination of research on rehabilitation under the auspices of Dr. Jerome Jaffey, and a nationwide program of education regarding drug abuse, all inspired by the plight of soldiers returning from Vietnam with heroin addictions.
Dr. Jaffey was a medical doctor who headed the new Special Action Office for Drug Abuse Prevention. The direction Dr, Jaffey took, which President Nixon must have known since he appointed a medical doctor and not a law enforcement officer to head this offensive, was to establish methadone programs, detoxification programs, and therapeutic communities. Those clinical programs were supposed to be the entirety of the nationwide offensive on drug abuse.
[Nixon’s Press Conference can be viewed at https://www.youtube.com/watch?v=y8TGLLQlD9M]
But thanks to ill-conceived asset forfeiture laws, which established both financial incentives and the opportunity for financial autonomy to law enforcement agencies, Nixon’s Offensive on Drug Abuse to help returning Vietnam veterans lost its way during the Reagan supply-side economics years and became the War on Drugs. The worldwide interdiction effort for the “sources of supply” of heroin became a self-funding domestic interdiction effort. And instead of “drug abuse” being “public enemy number one,” as Nixon had stated, drug abusers became public enemy number one. Once this subtle change in rhetoric was made, from drug abuse being the enemy to the addicts themselves being the enemy, the War on Drugs and its newfound profiteers catapulted the United States to the status of being the “most incarcerated country” in the world and in the history of the world. Forgotten was the fact that President Nixon’s intention was to have a medical doctor in charge of the entire domestic effort. Forgotten were the tenets of Dr. Jaffey’s approach of stabilization, therapy, and then detoxification.
Why is this an issue of inequity? Because the investigative and prosecutorial resources dedicated to domestic interdiction have an inverse relationship to wealth. You’ve probably never read about a drug raid at Morgan Stanley or Merrill Lynch or an investigation into drug trafficking on Wall Street. The focus on low-income and minority communities as targets and the resulting disparate impact that the War on Drugs has had on those communities has exacerbated poverty by exclusion from employment, disqualification from government benefits such as public housing, and mistreatment in the provision of health care, the latter of which has become so serious that in 2017 the United Nations, along with the World Health Organization, called for the decriminalization of drugs in order to end discrimination in the provision of health care.
https://www.who.int/news/item/27-06-2017-joint-united-nations-statement-on-ending-discrimination-in-health-care-settings
That is to say, the War on Drugs has been detrimental to world health. Adopting the United Nations’ recommendation, and joining the company of countries like Germany, Portugal, Belgium, Netherlands, Czechia, Norway, Switzerland, Spain, and Estonia who have all recognized the sound basis for that recommendation, would be a major step towards reversing mass incarceration, improving world health, and, relevant to our discussion here, substantially reducing class-based inequities in the enforcement of criminal laws.
The international movement in the direction of better public health is rapidly gaining momentum. Just yesterday, May 31, 2022, the Canadian government approved a trial run of drug decriminalization for the province of British Columbia.
https://www.washingtonpost.com/world/canada-to-temporarily-decriminalize-certain-drugs-in-bc/2022/05/31/ca6e3f56-e11b-11ec-ae64-6b23e5155b62_story.html
The United States, California, and the County of Humboldt being the cannabis capital of the nation, in the greatest state of the union, and as the leader of the free world, should not be so slow on the draw to make such an obvious call.
In conclusion, addressing classism is probably the greatest challenge to eliminating inequities in our criminal justice system, because it must be approached through a combination of income-adjusted bail scheduling (which we have control over locally), equalization of resources between the public defender’s offices and the District Attorney’s office (also a local issue), and legislation (or local criteria) for the decriminalization of crimes that are inequitably enforced against low-income communities.
IV. Gender -based Inequities in Our Criminal Justice System
Finally, I would like to address the growing systemic sexism against men in the criminal justice system. No one wants to talk about this issue, because it’s not yet politically correct, and that makes it uncomfortable, But just about anyone who has spent a significant amount of time in the courts of Humboldt County can tell you that, on average and all other things being equal, men are arrested and prosecuted more often than women and receive harsher consequences for the same crimes. I’m not necessarily talking about the obvious bias in domestic violence cases either, because it is present in just about every category of crime.
For example, if a man and woman are detained and the man is in actual possession of contraband or drugs, the woman is typically not arrested or prosecuted, even when the woman tries to “take the charges” by confessing because the police won’t believe her or won’t want to believe her. However, if the woman is in possession of the contraband or drugs, and the man tries to “take the charges,” it is more likely that the police will allow the fiction of his constructive possession and allow the man to substitute as the offender. I’m not sure whether to label this phenomenon discrimination against men (because they are getting arrested more often) or discrimination against women (because the police don’t take a woman’s confession as seriously as they do a man’s confession.) All I know is that it is a gender-based inequity in our system of criminal justice.
Similarly, inside the courtrooms, when males and females are criminal co-defendants, there is typically this unspoken bias that irrationally assumes that the man is somehow more culpable than the woman, all other things being equal, simply because he is a man. And this is true no matter what type of crimes are involved. This unequal treatment needs to end, and, since I am the only one making an issue out of it, as politically incorrect as it is and as I am, I presume that I am the only one of the candidates that will do anything about it.
Therefore, I commit to prosecuting all cases in a gender-neutral manner, such that charges brought will be based on the actual facts and circumstances of the case, and not some gender-biased fiction of constructive possession. I will also commit to prosecuting DV cases without a presumption that the male is usually at fault because it’s just a fact that some of the women here in Humboldt are as crazy and volatile as the men. I promise you that all DV cases will be approached in a gender-neutral manner.
One final situational commitment: Often times in DV cases, there is no third-party witness, and so if the involved parties reconcile, and do not want to proceed with the prosecution, it ends up being a waste of the court’s time. So, I will institute a policy that if circumstances indicate that a situation was truly “mutual combat” or that the aggressor cannot with reasonable diligence be determined, then it will be considered “mutual aggression” (in which case both male and female parties could be prosecuted if either one wants to press charges, or neither would be prosecuted if neither wants to press charges.)
Erasing gender-based inequities of these sorts will be a priority if I am elected District Attorney.
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