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The University of theDistrict of Columbia Law Review,Volume 6 Fall 2001 Number 1RESHAPING ADVOCACY IN THE NEW MILLENNIUMINTRODUCTIONDilllOlle G. LongA TRIBUTE TO PROFESSOR DAVE N IBLACKIN MEMORY OF MICHAEL C. MORGAN, IIARTICLEWI-l EN LAWYERS BREAK TilE L AW: How TH E D ISTR ICf OFCOLUMBIA COURT OF ApPEALS DISCIPLI NES MEMBERS OFTHE B A R WHO COMMIT C rH MESLarry CunninghamCOMMENTSCAPITAL P UNISHMENT. 2 1 sT CENTURY LYNCIlINGSerena L. HargroveMAN DATO RY MINI M UM SENT ENCES COUPLED W ITHM ULTI - F ACET I NTERVENTI ONS: AN E FFECTI VE R ESPONSETo D O/l.'I ESTIC VIOLENCEAngela M. KillianTHE ROLE OF DISCRIMI NAT ION AND DRUG P O LICY INEXCESS IVE I NCARCERATION IN TH E UNITED STATESSlevell 1. BorerosRETH IN KI NG T HE DISCIIAI{GE O F PRE- P ETITION ATrORNEYF EES IN CHAPTER 7 B ANK RU PTCY; A D EBTOR ORI ENTEDP E RSPEcn VEJalll es L. NeherNOTEBLACK P LA INTIFFS AND CLASS A cnON EMPLOYMENTDISC RIMINATION LAWSU ITS IN CORPORATE AMERI CAMichael Green

THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWTHE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW (ISSN 1063-8601) ispublished once annually by students of the University of the District of Columbia Schoolof Law, University of the District of Columbia, 4200 Connecticut Avenue, N.W., Building48, 2nd Floor, Washington, D.C. 20008. Manuscripts should be sent to the ExecutiveArticles Editor at this address. The opinions expressed in articles are those of the signedauthors and do not necessarily reflect the views of the University of the District ofColumbia School of Law or the LAW REVIEW.Subscriptions are accepted for the entire volume. 1 Subscriptions are payable inadvance or billable. Domestic & Foreign: $25.00. Mailing Address: The UNIVERSITY OFTHE DISTRICf OF COLUMBIA LAW REVIEW, The University of the District of Columbia,4200 Connecticut Avenue, N.W., Building 48, 2nd Floor, Washington, D.C. 20008.Telephone: (202) 274-7362. Earlier versions can be obtained from William S. Hein & Co.,1285 Main Street, Buffalo, New York 14209.Subscriptions are renewed automatically upon expiration unless the subscriber sendstimely notice of termination. All notifications of change of address should include oldaddress, including zip code, and new address, including zip code. POSTMASTER: Sendaddress change to The UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW,University of the District of Columbia, 4200 Connecticut, N.W., Building 48, 2nd Floor,Washington, D.C. 20008.Unless a claim is made for nonreceipt of LAW REVIEW issues within six months of themailing date, the LAW REVIEW cannot be held responsible for supplying those issueswithout charge.All articles copyrighted © 2001 by The UNIVERSITY OF THE DISTRICf OF COLUMBIALAW REVIEW, except when otherwise expressly indicated. For all articles in which it holdscopyright, The UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW permits copiesto be made for classroom use, provided that the user notifies The UNIVERSITY OF THEDISTRICf OF COLUMBIA LAW REVIEW that the user has made such copies, that the authorand The UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW are identified, andthat proper notice of copyright is affixed to each copy. Except when otherwise expresslyprovided, the copyright holder for every article in this issue for which The UNIVERSITY OFTHE DISTRICf OF COLUMBIA LAW REVIEW does not hold a copyright grants permission forcopies of that article to be made for classroom use, provided that the user notifies theauthor and The UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW that the userhas made such copies, that the author and The UNIVERSITY OF THE DISTRICf OFCOLUMBIA LAW REVIEW are identified, and that proper notice of copyright is affixed toeach copy.Information for Contributors:The LAW REVIEW invites submissions of unsolicited manuscripts. All manuscriptsshould be double-spaced, and all footnotes should conform to The Bluebook: A UniformSystem of Citation (17th ed.). As a matter of policy, the LAW REVIEW encourages the useof gender-neutral language. Please enclose an envelope with return postage if you wouldlike your manuscript returned after consideration.Send all correspondence to The UNIVERSITY OF THE DISTRICf OF COLUMBIA LAWREVIEW, The University of the District of Columbia, 4200 Connecticut Avenue, N.W.,Building 48, 2nd Floor, Washington, D.C. 20008.1 To be cited as 6 D.C. L. REV. - (2001).

KENNETH SEALLS, B.A., J.D., Adjunct Professor of LawWALLACE E. SHIPP, B.A., J.D., Adjunct Professor of LawCOLLINE E. SILVERA, C.P.A., J.D., Adjunct Professor of LawSUSAN E. SUTLER, B.S., J.D., Visiting Professor of LawJOHN F. TERZANO, B.A., J.D., Adjunct Professor of LawALICE MARTIN THOMAS, B.A., J.D., M.B.A., Associate Professor of LawJANET R. THOMPSON" B.A., J.D., Adjunct Professor of LawJOSEPH B. TULMAN, A.B., J.D., M.A.T., Clinical Director and Professor at LawCAROLYN WALLER, B.A., M.A., J.D., Adjunct Professor of LawJANICE B. WASHINGTON, B.A., J.D., M.B.A., Associate Dean for Finance and Administrationand Visiting Professor of LawNATALIE WASSERMAN, B.A., J.D., Assistant Professor of LawSUSAN L. WAYSDORF, A.B., J.D., Professor of LawEARLE B. WILSON, B.A., J.D., Adjunct Professor of Law

The University ofThe District of Columbia Law ReviewVolume 6 Fall 2001Number 12000-2001 EDITORIAL BOARDAngela KillianEditor-in-ChiefSteven BoretosManaging EditorJim NeherExecutive Articles EditorJanet McintoshArticles EditorMaria VanderbergNotes EditorSerena HargroveLegal Developments EditorLynette CollinsSubscriptions Editor2000-2001 ASSOCIATE EDITORSRobin AllenKenneth BallardVanessa CasonPerry ForemanRosalind LewisFACULTY ADVISORProfessor Alice M. Thomas

The University ofThe District of Columbia Law ReviewVolume 6 Fall 2001Number 12001-2002 EDITORIAL BOARDDimone LongEditor-in-ChiefJanell ForgyDeputy Editor-in-ChiefTYrona DeWittManaging EditorKosiso OnyiaExecutive Articles EditorChristal MimsArticles EditorRasheda JilesExecutive Notes EditorTamala EarleNotes EditorPrigati ParikhLegal Developments EditorKirk AdairTechnology and Subscriptions EditorGuana WilliamsCitation EditorASSOCIATE EDITORSAmy CastrovinciRick HallockJanelle RyanFACULTY ADVISORSProfessor Alice M. ThomasProfessor Laurie Morin

The University of the District of ColumbiaLaw ReviewVolume 6 Fall 2001 Number 1INTRODUCTIONDimone G. Long lI am truly proud to introduce this monumental issue of the University of theDistrict of Columbia Law Review, which takes a progressive approach at addressinglegal issues that will assist in reshaping advocacy in the new millennium. Thisedition of the University of the District of Columbia Law review is unique in thatit explores an array of legal doctrines from domestic violence to bankruptcy law,while keeping true to the Law Review's firm commitment to grappling with issuesin public interest law.THE ARTICLEThe first article is from an outside author, Larry Cunningham, who is currently aLaw Clerk for the Honorable Claude M. Hilton of the U.S. District Court for theEastern District of Virginia. Mr. Cunningham explains how lawyers who commitcrimes face two punishments: a court sentence and a disciplinary review by thestate bar association. If a lawyer is charged with a crime of "moral turpitude,"then the lawyer is automatically disbarred. Thus, the Court's decisions are crucialto the career of the lawyers before them. The District of Columbia Court ofAppeals has struggled to define "moral turpitude" through interpretation of D.C.statutes. Mr. Cunningham argues that despite the criticism given to the D.C.Court of Appeals' approach in defining moral turpitude, the Court's response tothis issue has evolved over the past 30 years into an organized and routine system.This article describes the court's efforts, through analysis of dozens of cases,to create a comprehensible, organized response system.THE COMMENTSAdditionally, four students from the University of the District of ColumbiaSchool of Law have submitted comments that focus on reshaping advocacy in the1 Dimone G. Long is the current Editor-in-Chief of the University of the District of ColumbiaLaw Review.

2 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWnew millennium. In her thought-provoking article entitled, "Capital Punishment:21st Century Lynching," Serena Hargrove presents a riveting examination of thedisproportionate impact the death penalty has on African American defendants.She begins by showing the comparisons between 19th century lynching and theimplementation of capital punishment. She goes on to identify how theprejudices of those in the legal profession work to the disadvantage of AfricanAmerican males. Furthermore, she points out how Congress has failed to adequatelyrectify this problem over the years and takes the initiative to suggestsome remedies that may enable defendants to challenge racially discriminatorypractices.Ms. Hargrove's comment is followed by Angela KilIan's in-depth look at domesticviolence in the District. Ms. Killian advocates a new response to domesticviolence in an effort to curb such abuse in, "Mandatory Minimum SentencesCoupled With Multi-Facet Interventions: An Effective Response to Domestic Violence."Her comment not only describes the history of domestic violence andthe District of Columbia's response to such violence, but she also critically evaluatesthis response, and offers her suggestions on ways to improve the District'sresponse in a way that will be effective in stopping the spread of domesticviolence.Steven Boretos presents the next article entitled, "Indications of Excessive Incarcerationin the United States," which examines criminal statutes and publicsentiments that have led to the United States being ranked first in the world inprison population. Mr. Boretos's explanations for these high numbers includeracial discrimination and public policies that have been instituted over the pastfew years, such as the "War on Drugs" and "Zero Tolerance". Mr. Boretos forcesthe reader to question whether tougher laws are the answer to solving our overloadedprison system, or whether tougher laws are already too severe for certaintypes of criminals. He advocates more social and rehabilitation programs as alternativesfor certain criminals as the answer to this recent phenomenon.In the last student comment, Jim Neher discusses new and innovative ways atreshaping advocacy in bankruptcy law in his informative comment, "Rethinkingthe Discharge of Pre-Petition Attorney Fees in Chapter 7 Bankruptcy: A DebtorOriented Perspective," Mr. Neher examines a provision in the Bankruptcy Codethat the majority of the courts have interpreted to mean that when a petitionerfiles a Chapter 7 bankruptcy, unpaid attorney's fees for pre-petition work aredischarged. He shows the fallacy in this interpretation and advocates that theminority view, which does not allow for discharge of attorney's fees unless theyare in excess, is a better solution for both attorneys and clients, as well as maintainsCongress's intent when Congress enacted the Bankruptcy Act. He concludesthat such a system would provide an incentive to more attorneys torepresent persons in bankruptcy cases.

TRIBUTE TO DAVID NIBLACK(March 25, 1934 to November 12, 2001)Long-time and beloved Professo r Dave Niblack , is most recently known for hisTrial Advocacy course at the UDC David A. Clarke School of Law, in whichDave would si mulate his actual courtroom experiences, pUlling the students in hisshoes. Afterward, Dave would explain what the court wou ld have done, andoften, what the court actually did to him under simil ar circumstances. Althoughthe purpose was to tra in students in li tigation , the process was most endearing.Dave was a gifted teacher and storyteller who inspired legions of students duringhis fifteen years with the School of Law. His Trial Advocacy course consistentlyreceived outstanding evaluations from students who often considered ali tigation practice for the first time after taki ng the course.Throughout his career, Dave also he ld academ ic positions as A ntioch Schoolof Law's Associate Dean for Clinica l Affairs ('1985-1986) and Adjunct Professorand Co-Director of the E. Barell Prellyman Fellowship Program and ClinicalPrograms at Georgetown Universi ty Law Center (1975-1978). Dave was also apolitical write r wi th the Congressional Quarterly News Service.As Chief Public Defender for the State of Wisconsin , Dave sued the State torestore funding to legal services fo r th e indige nt population. Later, Dave main-

6 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWtained an active private practice and tried over 200, often high profile, criminaljury trials.Dave had a gift for genuine empathy and turning hate to love. His death is aloss not only among wide circles of friends, but also to hundreds of isolated menand women in prisons, cop bars, and courthouse offices, who don't know oneanother, but share the feeling that they've lost the one person in the world whoever took the time to really understand them.Dave Niblack was not the sort of person you want to leave behind; he was thesort of person you desperately hope you can bring with you.

IN MEMORY OF MICHAEL C. MORGAN, II(January 28, 1973 to February 16, 2001)Micbael C. Morgan II, a member of tbe class of 2001 , and a soldie r for justice,today, is a memo ry of courage, strengtb and determina tion. After a length y ill ­ness, Micbael's li fe abruptly ended. Michael to uched many lives, and he willnever be forgollen. At the UDC David A. Clarke School of Law, he served asSenator to th e SBA Student Bar Association), President of BLSA (Black LawStudents Association) and Barbri represent at ive. In the summer, he studiedabroad at tbe U ni versity of South Africa Scboo l of Law at Jo hannesburg, wberehe was also a journ alist for the African Africa n-A merican Press. Michael was astudy partner, poe t, and a fri end.M ichae l Morga n, graduated cu m laude from Winston-Salem State U ni versity,with a degree in Pol itica l Science. H e was also a member of the O mega Psi PhiFraternity. A ltbougb Micbael died in the last semeste r of his third year in lawschool, he was nevertheless award ed the degree of Juris D octor.To Michael's mother, Carol O. Williams, and his fath er Michael Morgan, Sr.,thank you for sharing Michael with us.

WHEN LAWYERS BREAK THE LAW: HOW THEDISTRICT OF COLUMBIA COURT OF APPEALSDISCIPLINES MEMBERS OF THE BARWHO COMMIT CRIMESLarry Cunningham*"[A lawyer J is received into that ancient fellowship for something more thanprivate gain. He becomes an officer of the court, and, like the court itself, aninstrument or agency to advance the ends of justice. ,,1"Absent extraordinary circumstances . . . the commission of a crime by an attorneyrequires both for the maintenance of the integrity of the profession andthe protection of the public against future misconduct by other attorneys, thetermination of his licensure to practice law. ,,2INTRODUcnONLawyers are not immune to crime. With over one million persons possessing alicense to practice law in the United States? it is not surprising that a small minorityof our profession commits crime. For a number of reasons, such as financialhardship, greed, and substance abuse, some attorneys commit crimes, and arepunished by courts of law. 4 For a member of a licensed profession, however, acriminal conviction and sentence does not end the matter. Disciplinary authoritiesalso impose sanctions on professionals who commit crimes.* Assistant Commonwealth's Attorney, Alexandria, Virginia. Member, Virginia State Bar, NewYork State Bar. J.D., 2000, Georgetown University Law Center; B.S., 1997, John Jay College of CriminalJustice. The author was previously a law clerk to the Honorable Claude M. Hilton, Chief Judgeof the U.S. District Court for the Eastern District of Virginia, and a law clerk for the District ofColumbia Board on Professional Responsibility. The views expressed in this article are the author'sown and do not necessarily reflect the views of any employer, past or present.I would like to thank Elizabeth J. Branda, Esquire, and Father Robert Drinan, S.J., for their assistanceand advice in the writing and editing of this article. I would also like to thank Ericka Pearce forher unwavering support.1 People ex rei. Karlin v. Culkin, 162 N.E. 487, 489 (N.Y. 1928).2 In re Wild, 361 A.2d 182, 186 (D.C. 1976) (Kern, J., concurring in part and dissenting in part).3 See Leslie C. Levin, The Emperor's Clothes and Other Tales About the Standards for ImposingLawyer Discipline Sanctions, 48 AM. U. L. REV. 1,8 (1998).4 See Jay Wilson, Comment, The Definitional Problems With "Moral Turpitude," 16 J. LEGALPROF. 261, 273 (1991) ("Although members of the bar are sworn to uphold the law and to adviseothers to do so as well, attorneys and judges face the same trials and tribulations as the population ingeneral. All too often, members of the bar find themselves the subject of a criminal prosecutionrather than an advocate for an accused client. As evidenced by the large number of cases, attorneyshave been found guilty of crimes that span the entire spectrum of the penal statutes, ranging from themost heinous too [sic] the smallest infraction.").

WHEN LA WYERS BREAK THE LAW 11automatic disbarment and those that do not. Part IV will test the system by consideringdifficult cases-sad stories that from time-to-time have forced the Courtof Appeals to attempt to refine the "moral turpitude" line.I. PROCEDURAL FRAMEWORK: A ROUTINE "SYSTEM"Congress has vested the District of Columbia Court of Appeals with the powerto regulate the practice of law in Washington, D.C.'s non-federal courts. 10 Beginningon April 1, 1972, the D.C. Court of Appeals assumed the power to "censure,suspend from practice, or expel a member of its bar."11 To assist it, the Court ofAppeals created a "Board on Professional Responsibility," consisting of ninemembers-seven lawyers and two non-lawyers. 12 Each member is appointed bythe Court for three years. 13 The Board on Professional Responsibility has thepower to appoint a Bar Counsel, and assistants, to investigate and prosecute actsof attorney misconduct.A. General Due Process Protections and Procedural RulesUltimate authority for attorney discipline rests with the D.C. Court of Appeals,not with the Board or Bar Counsel. 14 The Court will defer to the Board'sfindings of fact. IS Questions of law, however, are reviewed de novo by theCourt. 16 The Board is empowered to refer matters to "hearing committees,"which can take testimony under oath and make detailed findings of fact. I ?An attorney is entitled to due process during disciplinary proceedings becausesuch proceedings are "quasi-criminal in nature."18 Bar Counsel bears the burdenof proving charges of misconduct by clear and convincing evidence. 19 An attor-10 The federal courts located in Washington, such as the U.S. Court of Appeals for the D.C.Circuit, retain the power to regulate persons admitted to practice before them. See, e.g., D.C. CIR. R.46.11 D.C. CODE § 11-2502 (1981).12 See D.C. BAR. R. XI, § 4(a).13 See id. § 4(c).14 See Laughlin v. United States, 474 F.2d 444, 447 (D.C. Cir. 1972).15 See In re Dwyer, 399 A.2d I, 11 (D.C. 1979).16 The question of whether a crime is one of "moral turpitude" is a question of law, not of fact.See In re Shillaire, 549 A.2d 336, 343 (D.C. 1988) ("In any event, we think that the ultimate issue ofmoral turpitude is one of law rather than of fact.").17 See D.C. BAR. R. XI, § 5.18 In re Williams, 464 A.2d 115, 118-19 (D.C. 1983).19 See id. at 119.

12 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWney is entitled to notice of the charges against him.2o However, attorneys are notipso facto entitled to every protection that a criminal defendant receives. 21There is no statute of limitations for the institution of disciplinary proceedings.22 The purpose of disciplinary rules is not simply to punish attorneys, but toalso protect clients and society.23 "[A]n attorney is in a continuing position oftrust toward clients, the courts, and society in general. ,,24 Accordingly, bar certificationis also a continuing process.B. Procedure Upon Conviction of a CrimeThe procedure upon an attorney's conviction of a crime is governed by D.C.Code § 11-2503(a) and Section 10 of Rule XI of the District of Columbia BarRules. D.C. Code § 11-2503 provides in pertinent part:(a) When a member of the bar of the District of Columbia Court of Appealsis convicted of an offense involving moral turpitude, and a certifiedcopy of the conviction is presented to the court, the court shall, pendingfinal determination of an appeal from the conviction, suspend the memberof the bar from practice. Upon reversal of the conviction the court mayvacate or modify the suspension. If a final judgment or conviction is certifiedto the court, the name of the member of the bar so convicted shall bestruck from the roll of the members of the bar and such person shall thereaftercease to be a member. Upon the granting of a pardon to a member soconvicted, the court may vacate or modify the order of disbarment.Section 10 of Rule XI of the District of Columbia Bar Rules specifies the proceduresto be followed upon an attorney's conviction of a crime. Upon receipt ofa certified copy of a record demonstrating that an attorney has been convicted ofa "serious crime," the Court of Appeals immediately suspends an attorney frompractice. 25 If the crime is not "serious," Bar Counsel may institute charges ofmisconduct. If the crime is "serious," the only question to be answered by theCourt is the "nature of the final discipline to be imposed. ,,2620 See In re Washington, 513 A.2d 245 (D.C. 1986). "It is elementary that a fundamental requirementof due process is notice that apprises the interested parties of the pendency of the actionand affords them an opportunity to present their objections. . . . The same principles apply to disbarmentproceedings." In re Colson, 412 A.2d 1160, 1164 (D.C. 1979).21 See In re Williams, 513 A.2d 793, 796 (D.C. 1986).22 See D.C. BAR. R. XI, § 1(c). However, in Williams the Court cautioned that Bar Counsel'sunjustified delay in instituting disciplinary charges that later results in prejudice to the attorney couldconstitute a due process violation. See Williams, 513 A.2d at 797.23 See id. at 795 ("The disciplinary rules protect clients from wayward attorneys, maintain theintegrity and competence of the legal profession, and save the judicial process from corruption.").24 Id. at 796.25 See D.C. BAR R. XI, § 10(c).26 See id. § 1O( d).

WHEN LA WYERS BREAK THE LAW 13The attorney's case is then referred to the Board on Professional Responsibility.As is discussed in the next section, the Board proceeds on either one of twocourses. If the crime the attorney has been convicted of has previously beenadjudicated by the Court of Appeals to be one of moral turpitude, the Board'sonly function is to determine whether "the certificate of conviction ... establishesthat the attorney, in fact, has been convicted of the crime charged.,,27 If the particularcrime has not been previously considered by the Court, the attorney andBar Counsel can brief and argue the issue of moral turpitude before the Board. 28However, the attorney is not free to "retry his criminal case before [t]heBoard. ,,29 The focus is not on the specific facts of the attorney's case but, rather,on the type of crime committed. 3D The attorney cannot challenge the facts thatled to conviction; he can only address the question of whether the crime itself isone of moral turpitude.Both the attorney and Bar Counsel can challenge the Board's finding of moralturpitude, as the Court of Appeals has the final say on attorney discipline in theDistrict. 31 Once the Court of Appeals has ruled definitively on whether a particularcrime constitutes moral turpitude, that decision cannot be revisited except onen bane review. 32An attorney's "guilty plea represents both a conviction of a crime and an admissionby the accused of the underlying facts. ,,33 An attorney's Alford 34 pleawill not save him from automatic disbarment if the crime is one of moral turpitude.35 An attorney who has been convicted of a crime cannot collaterally challengethat conviction in discipline proceedings. 36C. Moral Turpitude Per Se and "On the Facts"In In re Colson,37 the Court of Appeals defined the general, substantive structurefor handling lawyer crimes. In Colson, a White House attorney pled guiltyto obstruction of justice. The Court of Appeals concluded that obstruction ofjustice was per se moral turpitude. Because the attorney was convicted of a crimeof moral turpitude, his disbarment was automatic. 3827 In re Colson, 412 A.2d 1160, 1165 (D.C. 1979).28 See id. at 1165.29 Id. at 1167.30 See infra Part II.C.31 See Laughlin, 474 F.2d at 444.32 See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971).33 In re Wolff, 490 A.2d 1118, 1119 (D.C. 1985).34 North Carolina v. Alford, 400 U.S. 25 (1970) (guilty plea with assertion of factual innocence).35 See In re Untalan, 619 A.2d 978 (D.C. 1993).36 See Laughlin v. United States, 474 F.2d 444, 454 (D.C. Cir. 1972).37 Coison, 412 A.2d 1160.38 See id. at 1165.

14 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWMoral turpitude comes in two flavors: per se and on the facts. Both moralturpitude per se and moral turpitude on the facts require automatic disbarment.The difference is in the effect of the decision in a particular case on future cases.When moral turpitude has been found per se, the Court of Appeals decrees ina case 39 that conviction of that particular crime must always result in automaticdisbarment in every future case. For example, the Court may hold in In re A that"Crime 1," by virtue of its very nature, must always result in automatic disbarment.The next time a case comes along where Attorney B, for example, hasbeen charged with "Crime 1," he will automatically be disbarred, without thebenefit of a hearing to determine whether the crime is one of moral turpitude. Inre A controls the decision in In re B. "The major difference between the pre- andpost-Colson decisions is not the court's ability to apply the appropriate sanction,but the court's discretion in weighing the facts and circumstances of each case.The Court, by its own hand, has, in effect, abdicated this responsibility.,,4oHowever, consider a case, In re C, in which the Court of Appeals concludesthat "Crime 2" does not involve moral turpitude per se (that is, the commission of"Crime 2" does not always involve moral turpitude). However, neither AttorneyC nor any others that follow are necessarily off the disciplinary hook. The Boardand Court can still conclude that the crime the attorney committed involvedmoral turpitude on the facts. If so, the attorney is still automatically disbarred.The difference is that Attorney C, Attorney D, and any others that follow are allentitled to individual hearings to determine moral turpitude.Even if a crime-whether per se or on the facts-is not found to involve moralturpitude, the attorney can still be disciplined pursuant to Rule 8.4 of the D.C.Rules of Professional Conduct, which provides in pertinent part:It is professional misconduct for a lawyer to: . . .(b) Commit a criminal act that reflects adversely on the lawyer's honesty,trustworthiness, or fitness as a lawyer in other respects;(c) Engage in conduct involving dishonesty, fraud, deceit, ormisrepresentation;Thus, Bar Counsel gets three bites at the disbarment apple. He can argue tothe Board and the Court of Appeals that:1. the offense which the attorney committed involves moral turpitude perse, requiring automatic disbarment;2. the facts of the attorney's specific case involve moral turpitude, requiringautomatic disbarment; or39 The decision of a panel can be reviewed by the Court en bane. See M.A.P. v. Ryan, 285 A.2d310, 312 (D.C. 1971).40 Michael Cline, D.C. Code Section 11-2503(a): Disbarment or Banishment?, 32 CATH. U. L.REV. 1038, 1047 (1983).

WHEN LAWYERS BREAK THE LAW153. the attorney should be disbarred or otherwise disciplined pursuant toRule 8.4. However, action under this rule does not guarantee automaticdisbarment. Only commission of a crime involving moral turpitude,whether per se or on the facts requires automatic disbarment.This approach is not without criticism. First, automatic disbarment raises concernsabout fairness to the attorney. It does not take into account mitigatingfactors, such as alcoholism,41 that may explain the attorney's behavior and explainwhy, because of changed circumstances, recidivism is not likely to occur.42However, as the Court has reminded the bar and the public on numerous occasions,the purpose of disciplinary proceedings is to protect society, not necessarilyto preserve the licensure "rights" of attorneys.43 The interests of lawyercriminalsis secondary to the interests of the public.Second, the binding effect of moral turpitude per se determinations, it could beargued, is an unfair use of stare decisis. If, in In re A, counsel for Attorney A didnot competently brief or argue the case against moral turpitude per se, that failureshould not be. imparted on future cases and attorneys. Similarly, a panel ofthe Court of Appeals could be unconsciously influenced by certain aggravatingand heinous facts and find moral turpitude per se not just on the statute, but alsoin consideration of the facts of the particular case.A related concern is that a finding of moral turpitude per se freezes the law inplace at a particular time. Apart from en banc reversal, which is rare, a finding ofmoral turpitude per se binds all future litigants. If the whole point of disciplinaryproceedings is to protect the public, should not the standard for attorney disbarmentbe able to adjust freely with public opinion?Finally, a determination of what is "moral turpitude" is a policymaking, legislativefunction. Should not the legislature (in the District of Columbia, it is Congress)decide these questions, rather than an unelected judiciary? Perhaps not.Courts traditionally have been the governmental bodies to oversee the lawyersthat practice before them. The statute vests some, but not all, discretion with theCourt of Appeals. Disbarment is not automatic for every crime, only those thatinvolve moral turpitude. Section 11-2S03(a) vests the Court of Appeals with the41 See infra Part IV.C.42 See In re Colson, 412 A.2d 1160, 1175 (D.C. 1979) (Harris, J., dissenting) ("I feel stronglyandI believe my view is shared by the great majority of persons who are knowledgeable in the field ofprofessional discipline - that the basic decisional responsibility for the sanction to be imposed in adisciplinary proceeding should rest upon the judges of a jurisdiction'S highest court, rather than uponthe members of a court-created disciplinary body.")See also Dhanda, supra note 8, at 727 ("By considering the nexus between a particular crime andan attorney's fitness to practice, the courts are better equipped to impose discipline that is appropriatefor an attorney's misconduct." ).43 See In re Wild, 361 A.2d 182, 186 (D.C. 1976) (Kern, J., concurring in part and dissenting inpart).

16 THE UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEWpower courts traditionally possess: applying and interpreting the law. The factthat a court's interpretation of the law in one case is binding on the next shouldnot be surprising. Stare decisis is at the heart of Anglo-American common law.Further, a lawyer-criminal has already received a full, thorough, and meaningfulhearing on the facts of his case: the trial of his criminal case. 44 The automaticdisbarment statute fits together perfectly with the command of Laughlin v.United States,45 a D.C. Circuit case, holding that an attorney cannot collaterallychallenge a conviction in disciplinary proceedings. 46 The principle emanatingfrom the courts is that an attorney gets one chance to test the government's evidence:at trial. In the interests of economy, it is not prudent or necessary to holda second hearing on the facts of the case. An attorney's conviction by proof attrial beyond a reasonable doubt or by plea ends any question of the attorney'sguilt.ll. SUBSTANTIVE FRAMEWORKThe question, then, of an lawyer-criminal's future in the profession comesdown to whether the crime of which he was convicted is one of moral turpitude.The statute, D.C. Code § 11-2503(a), is mandatory in its terms. The name of anattorney who has been convicted of a crime of moral turpitude "shall be struckfrom the roll of the members of the bar and such person shall thereafter cease tobe a member. ,,47A. Cases Deciding "Moral Turpitude"Before trying to synthesize the Court of Appeals' jurisprudence on the subject,I pause here to detail the crimes the Court has held to be and not to be crimes ofmoral turpitude. Nearly every single case to be decided by the Court of Appealson the subject has been found to have involved moral turpitude. Only a handfulof crimes have been found not to involve moral turpitude per se. Table 1 listsnearly all of the published decisions applying section 11-2503(a).Each decision is nearly identical. Each is usually short and conclusory. Mostare only a page or two long. Many rely and incorporate the Board's unpublishedorder in substitution of the Court's own analysis. Even in significant decisionsthat decide moral turpitude for eternity-those that find moral turpitude per setheCourt has rarely employed an analysis of more than a few sentences. This isnot surprising considering the elusiveness of the phrase "moral turpitude."In recent years, the opinions cite analogous cases more often. For example, inIn re Bateman, the Court of Appeals concluded that conspiracy to possess co-44 But see Dhanda, supra note 8, at 731.45 474 F.2d 444 (D.C. Cir. 1972).46 See id. at 454.47 D.C. CODE § 11-2503(a} (1981).

WHEN LAWYERS BREAK THE LAW 17caine with intent to distribute involves moral turpitude per se, because analogouscases, such as In re Mendes,48 held that possession with intent to distribute was acrime of moral turpitude per se.TABLE 1: DECISIONS OF THE D.C. COURT OF ApPEALS ApPLYING THEMORAL TURPITUDE STANDARDOffense Moral Thrpitude CasePer Se?Any misdemeanor no In re McBride, 602 A.2d 626 (D.C.1992) (en bane)Aiding and abetting a person to no In re McBride, 602 A.2d 626 (D.C.knowingly possess a false1992) (en bane)identification document with theintent to use the document todefraud the United States (amisdemeanor)Aiding and assisting a person to n0 49 In re McConnell, 502 A.2d 454submit fraudulent and false federal (D.C. 1985)tax returnsBank fraud yes In re Roseng~eet, 592 A.2d 1036(D.C. 1991)Bribery yes In re Glover-Towne, 626 A.2d 1387(D.C. 1993)Child abuse yes In re Wortzel, 698 A.2d 429 (D.C.1997)Conspiracy to defraud the U.S. yes In re Hirsch[\eld, 622 A.2d 688(D.C. 1993)Conspiracy to knowingly defraud the yes In re Meisnere, 471 A.2d 269 (D.C.I.R.S. 1984)Conspiracy to possess heroin yes In re Gates, No. D-32-79 (D.C.1979) (published in appendix to Inre Roberson, 429 A.2d 530 (D.C.1981»Conspiracy to possess cocaine with yes In re Bateman, 699 A.2d 403 (D.C.intent to distribute onboard a vessel 1997)Conspiracy to receive and conceal yes In re Roberson, 429 A.2d 530 (D.C.narcotics 1981)Conspiracy to sell narcotics yes In re Roberson, 429 A.2d 530 (D.C.1981)Distribution of child pornography yes In re Wolff, 490 A.2d 1118 (D.C.1985), affd en bane, 511 A.2d 1047(D.C. 1986)Embezzlement yes In re Venable, 641 A.2d 853 (D.C.1993)5248 In re Mendes, 598 A.2d 168 (D.C. 1991).49 However, the Court found moral turpitude on the facts.50 See also In re Saul, 671 A.2d 461 (D.C. 1996) (per curiam); In re Campbell, 635 A.2d 933(D.C. 1994).51 See also In re Lipari, 704 A.2d 851 (D.C. 1997); In re Matzkin, 665 A.2d 1388 (D.C. 1995).52 See also In re Hernandez, 683 A.2d 764 (D.C. 1996); In re Eberhart, 678 A.2d 1023 (D.C.1996).

18 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWEmbezzlement by a bankruptcytrusteeFailure to pay taxesFalse pretensesFiling a false tax returnForgeryFraud in the second degree (Districtof Columbia)Grand larcenyGrand theftyesnoyesnoyesyesyesyesHarassment of a federal witness yes 56Illegal campaign contributions n0 57(misdemeanor)Interstate transportation inyesfurtherance of a fraudMail fraudyesMisapplying funds of a financialinstitutionMisappropriation of funds whileserving as a fiduciaryObstruction of justice(administrative proceedings)Obstruction of justice (judicialproceedings)Offering a false instrument for filingPerjuryyesyesyesyesyesyesIn re Suga~jn, 677 A.2d 1049(D.C. 1996)In re Shorter, 570 A.2d 760 (D.C.1990)In re Anderson, 474 A.2d 145 (D.C.1984)In re Kerr, 611 A.2d 551 (D.C.1992)In re ~ihwartz, 619 A.2d 39 (D.C.1993)In re Rosenbleet, 592 A.2d 1036(D.C. 1991)In re ~oyd, 593 A.2d 183 (D.C.1991) 5In re Caplan, 691 A.2d 1152 (D.C.1997) (interpreting Californiastatute)In re Shillaire, 549 A.2d 336 (D.C.1988)In re Wild, 361 A.2d 182 (D.C.1976)In re Vaccaro, 539 A.2d 1094 (D.C.1988)In re ~ond, 519 A.2d 165 (D.C.1986) 8In re Reggie, 666 A.2d 69 (D.C.1995)In re O'Malley, 683 A.2d 464 (D.C.1996)In re Laurins, 576 A.2d 1351 (D.C.1990)In re ~olson, 412 A.2d 1160 (D.C.1979) 9In re Mirrer, 632 A.2d 117 (D.C.1993)In re Meisnere, 471 A.2d 269 (D.C.1984)53 See also In re Greenspan, 683 A.2d 158 (D.C. 1996).54 See also In re Sluys, 632 A.2d 734 (D.C. 1993).55 See also In re Solerwitz, 601 A.2d 1083 (D.C. 1992) (interpreting New York statute); In reSlater, 627 A.2d 508 (D.C. 1993); In re Sluys, 632 A.2d 734 (D.C. 1993); In re Eberhart, 678 A.2d 1023(D.C. 1996); In re Caplan, 691 A.2d 1152 (D.C. 1997).56 A reading of Shillaire, however, could lead to the interpretation that the Court believed thatmoral turpitude existed on the facts. The Court did not explicitly state that it was deciding that everyharassment of a federal witness would be moral turpitude. Nonetheless, after noting that obstructionof justice was moral turpitUde per se, the Court then went on to compare obstruction of justice andharassment of a federal witness and concluded that they were nearly identical. It is thereforeprobable that Shillaire was a statement that harassment of a federal witness is moral turpitude per se.57 This was the implicit holding of Wild, as noted by Judge Ferren in his concurrence in Colson.See Colson, 412 A.2d at 1181.58 See also In re Krowen, 573 A.2d 786 (D.C. 1990); In re Fox, 627 A.2d 511 (D.C. 1993); Inre Zimmer, 637 A.2d 103 (D.C. 1994); In re Juron, 649 A.2d 836 (D.C. 1994); In re Ferber, 703 A.2d142 (D.C. 1997); In re Bereano, 719 A.2d 98 (D.C. 1998)59 See also In re Schwartz, 619 A.2d 39 (D.C. 1993).

WHEN LA WYERS BREAK THE LA W 19Possession for sale of a controlled yes In re Hawkins, 685 A.2d 753 (D.C.substances 1996)Possession of cocaine with intent to yes In re Mendes, 598 A.2d 168 (D.C.distribute 1991)Possession of heroin yes In re Gates, No. D-32-79 (D.C.1979) (published in appendix to Inre Roberson, 429 A.2d 530 (D.C.1981»Possession of marijuana with intent yes In re Campbell, 572 A.2d 1059to distribute (D.C. 1990)Rape yes In re Phillips, 452 A.2d 345 (D.C.1982)Receiving a bribe yes In re Glover-Towne, 626 A.2d 1387Receiving a gratuityn0 60 In re Campbell, 522 A.2d 892 (D.C.(D.C. 1993)Refusal of Congressional witness ton0 61 District of Columbia v. Kleindienst,. 1987)testify or produce papers 345 A.2d 146 (D.C. 1975)(misdemeanor)Sale of a controlled substance yes In re Valentin, 710 A.2d 879 (D.C.1998) (interpreting New Yorkstatute)Sodomy yes In re Phillips, 452 A.2d 345 (D.C.1982)Soliciting a bribe yes In re Glover-Towne, 626 A.2d 1387(D.C. 1993)Taking indecent liberties with a child yes In re Sharp, 674 A.2d 899 (D.C.by a person in a custodial or 1996)supervisory relationshipTaking property without a rightn0 62In re Kent, 467 A.2d 982 (D.C.1983)Tax evasion no In re Shorter, 570 A.2d 760 (D.C.1990)Theft (felony) yes In re ~iley, 666 A.2d 68 (D.C.1995)Theft by deception yes In re Youmans, 617 A.2d 534 (D.C.1993)Theft by failure to make required yes In re Hopmgxer, 625 A.2d 290disposition of property received (D.C. 1993)Theft of government property in yes In re Milton, 642 A.2d 839 (D.C.excess of $1,000 1994)60 The Court of Appeals drew a distinction between gratuities accepted by a judge andgratuities accepted by members of the executive and legislative branches. The Court specifically leftopen the question of moral turpitude for executive and legislative employees. The Court found moralturpitude on the facts because the lawyer-criminal was a judge.61 This was the implicit holding of Kleindienst, as noted by Judge Ferren in his concurrence inColson. See Colson, 412 A.2d at 1181 n.4.62 Implied by the Court of Appeals' analysis under the former Disciplinary Rules, not D.C.Code § 11-2503(a). The Court held, by implication, that Kent's offense did not involve moralturpitude.63 See also In re Taylor, 765 A.2d 546 (D.C. 2001); In re Cohen, 742 A.2d 896 (D.C. 1999).64 Id.

20 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWUnlawful solicitation of money froma Criminal Justice Act [indigentcriminal appointment statute] clientUse of an interstate telephonecommunication with the intent, interalia, to promote racketeering andbriberyVehicular negligent homicideWire fraudThe Willcher Courtfound moralturpitude per se, butIn re McBride, 602A.2d 626 (D.C. 1992)(en banc), held thatno misdemeanor canbe a crime of moralturpitude per se.yesnoyesIn re Willcher, 447 A.2d 1198 (D.C.1982)In re Bankston, 749 A.2d 739 (D.C.2(00)In re Small, 760 A.2d 612 (D.C.2000)In re ~ond, 519 A.2d 165 (D.C.1986) 5Thus, of the several dozen cases on the subject, only approximately ten foundthat a particular crime did not involve moral turpitude. All misdemeanors, aidingand abetting a person to knowingly possess a false identification document withthe intent to use the document to defraud the United States, aiding and assistinga person to submit fraudulent and false federal tax returns, failure to pay taxes,filing a false tax return, illegal campaign contributions, receiving a gratuity, refusalof a Congressional witness to testify or produce papers, taking propertywithout a right, vehicular negligent homicide, and tax evasion, were the onlycrimes found not to involve moral turpitude.C. Synthesizing the Court of Appeals' JurisprudenceIn one of the first moral turpitude cases, In re Colson,66 the Court of Appealsrecognized that "[t]he term 'moral turpitude has less than a finite definition.,,67The Court gave guidance for future cases, however, and identified three differentdefinitions for "moral turpitude" that it said it would rely on. A crime of moralturpitude is:1. "[one where] the act denounced by the statute offends the generallyaccepted moral code of mankind. ,,682. "[a]n act of baseness, vileness or depravity in the private and socialduties which a man owes to his fellow men or to society in general,65 See also In re Chuang, 575 A.2d 725 (D.C. 1990); In re Cooper, 622 A.2d 1105 (D.C. 1993); Inre Lobar, 632 A.2d 110 (D.C. 1993); In re Ferber, 703 A.2d 142 (D.C. 1997).66 412 A.2d 1160 (D.C. 1979).67 Id. at 1167. See also Linda Capel-Galiber, Project, Disciplinary Action Against Attorneys forCrimes of Moral Turpitude, 31 How. L.J. 313, 313 (1988) ("Each jurisdiction has its own definition formoral turpitude. All are broadly dermed in order to cover all attorney misconduct.").68 Colson, 412 A.2d at 1168.

WHEN LAWYERS BREAK THE LAW21contrary to the accepted and customary rule of right and duty betweenman and man. ,,693. "[c]onduct contrary to justice, honesty, modesty, or good morals.,,7oThe Court of Appeals, however, has rarely relied on or applied the above-citedthree-part test for moral turpitude, probably because the definitions are as unworkableas the term being defined.'lBased on an independent, post hoc analysis of the moral turpitude cases, thefollowing categories of crimes of moral turpitude emerge:721. MisdemeanorsIn 1992, the Court of Appeals restructured its moral turpitude analysis. In Inre McBride,'3 the Court of Appeals held that misdemeanors could never becrimes of moral turpitude per se.'4 "[N]o conviction of a misdemeanor may bedeemed a conviction of a crime involving moral turpitude per se, even thoughthat misdemeanor may be ... held to involve moral turpitude on the facts of thecase.,,75 In other words, an attorney convicted of a misdemeanor is always entitledto a hearing to determine whether moral turpitude exists on the facts of theparticular case. 76 If so, disbarment is still automatically required.The en banc Court in McBride made a distinction between felonies and misdemeanorsfor three reasons. First, the term "moral turpitude" by its plain termsinvolves a "revulsion of society.,,77 However, misdemeanors by definition areoffenses that society, through elected legislators, has determined to be less seri­OUS. 78 Misdemeanors do not carry the same "revulsion" as felonies. Second, exceptfor In re Willcher,'9 no other case had found moral turpitude per se for amisdemeanor. so Thus, there had been in place already a de facto felony-misdemeanorbright-line rule. Finally, the Court noted that "intent to defraud," whichis a key phrase that the Court had relied on in the past in finding moral turpitude,69 Id. (quoting 2 Bouv. LAW DlcrIONARY 2247 (Rawles' 3d. Rev.».70 Id. (quoting BLACK'S LAW DlcrIONARY 1160 (4th ed. 1951».71 But see Jordan v. DeGeorge, 341 U.S. 223, 232 (1951) (holding that phrase "crime involvingmoral turpitude" is not void for vagueness).72 One commentator has noted, "Moral turpitude is best defined by example." Capel-Galiber.supra note 67, at 313.73 In re McBride, 602 A.2d 626 (D.C. 1992) (en banc).74 See ide at 629.75 Id.76 See ide at 635.77 Id. at 632.78 See BLACK'S LAW DlcrIONARY 999 (6th ed. 1990).79 In re Willcher, 447 A.2d 1198 (D.C. 1982).80 See McBride, 602 A.2d at 633.

22 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWhad a specific meaning under the criminal law that was not directly translatable to"moral turpitude. ,,812. Theft and Fraud OffensesAs previously mentioned, the Court of Appeals has sometimes latched ontolanguage in certain criminal statutes that require "intent to defraud" as an elementof a crime. In In re Meisnere,82 for example, an attorney was convicted ofconspiracy to defraud the Internal Revenue Service. The Court of Appeals summarilyaffirmed the Board's finding that conspiracy to defraud the IRS was acrime of moral turpitude per se because conviction always required proof that thedefendant intended to defraud. "Criminal offenses involving theft and fraud inherentlyinvolve moral turpitude.,,83 In this sense, the Court has almost adopteda per se rule within a per se rule: Crimes involving an intent to defraud are almostper se crimes of moral turpitude per se.In contrast, however, in In re Shorter,84 the Court of Appeals rejected argumentsfor a finding of moral turpitude per se for tax evasion. Shorter concludedthat tax evasion is not as "evil" as other offenses 85 "While this 'evil' ... impairsgovernmental objects, its motivation is mere selfishness without any further abhorrentintention, such as would characterize a calculated attempt to harm othersfor the sake of the harm. ,,86 The Court also noted that from time-to-time thenumber of people who have sought to evade paying taxes is "legion.,,87In other cases, however, the Court of Appeals has found moral turpitude perse when the offender unlawfully profits, for selfish gain, at the expense of others.For example, in In re Hopmayer,88 an attorney was convicted of theft by failure tomake required disposition of property received. The Court found moral turpitudeper se because the statute requires intentional dishonesty for personal gain.This stands in stark contrast to the tax evasion line of cases, where it was heldthat mere selfishness was not enough to justify automatic disbarment for moralturpitude. Perhaps a distinction can be made between the cases in deceptiontowards the government (in the tax evasion cases) versus deception to clients andinnocent citizens. This characterization would also help to explain why other actsinvolving defrauding innocents, such as embezzlement, mail fraud, and wirefraud, have always been found to be moral turpitude per se.81 See id.82 In re Meisnere, 471 A.2d 269 (D.C. 1984).83 In re Caplan, 691 A.2d 1152 (D.C. 1997).84 In re Shorter, 570 A.2d 760 (D.C. 1990).85 Id. at 766.86 Id.87 Id.88 In re Hopmayer, 602 A.2d 655 (D.C. 1992), affd, 625 A.2d 290 (D.C. 1993).

WHEN LA WYERS BREAK THE LAW 233. Narcotics OffensesInvolvement in the drug trade, whether as a possessor,89 distributor,90 or coconspirator,91has always been held to be moral turpitude per se despite the factthat there is often no nexus between the conduct and the attorney's profession.The Court's opinions in this area have been summarily written and conclusory intheir analysis.4. Sex-Related CrimesCrimes of a sexual nature, such as rape, sodomy, and distribution of child pornography,have been routinely and unequivocally denounced by the Court as involvingmoral turpitude. In In re Wolff,92 an attorney was found guilty in Virginiaof distribution of child pornography. The Court wrote, "The participant's desirefor . . . gratification [exceeded] his ability to demonstrate a public respect andappreciation of existing societal morals and values. ,,93 This language invoked the"good morals" definition of Colson, one of the few opinions to do so. Wolffwasalso one of the few decisions where the Court of Appeals rejected the recommendationof the Board on Professional Responsibility, perhaps indicating the seriousnesswith which the Court takes offenses such as distribution of childpornography.94In In re Phillips,95 a case in which an attorney committed rape and sodomy,one of the few cases involving violent crimes, the Court of Appeals, without hesitationand much discussion, found moral turpitude per se. The Court even wentso far as to refuse the attorney's request to resign voluntarily from the bar.96 Thiswas the holding despite the clear absence of a nexus between the crimes of rapeand sodomy and the legal profession.DI. THE DIFFICULT CASES: TESTING THE FRAMEWORKThe fraud cases have been perhaps the easiest for the Court of Appeals todecide. Not only are many of them felonies, but the statutes usually require aspecific intent to defraud. This intent to defraud goes to the integrity (or lack89 See, e.g., In re Campbell, 572 A.2d 1059 (D.C. 1990).90 See, e.g., In re Valentin, 710 A.2d 879 (D.C. 1998).91 See, e.g., In re Roberson, 429 A.2d 530 (D.C. 1981).92 490 A.2d 1118 (D.C. 1985).93 Id. at 1120 (quoting Florida Bar v. Kay, 232 So.2d 378, 380 (1970».94 Further, in In re Sharp, 674 A.2d 899 (D.C. 1996) the Court of Appeals concluded that theVirginia offense of "taking liberties with a child" involved moral turpitude per se. But see In reWortzel, 698 A.2d 429 (D.C. 1997). In Wortzel, the Court summarily adopted the recommendation ofthe Board to find moral turpitude per se in child abuse cases. While still finding moral turpitude, theopinion lacked any of the scathing language used in Wolff.95 In re Phillips, 452 A.2d 345 (D.C. 1982).96 Id. at 348.

24 THE UNIVERSITY OF TIlE DISTRlcr OF COLUMBIA LAW REVIEWthereof) of an attorney's relationship with others. If an attorney steals from hisemployer, what is to say that he will not steal from his clients?While many "greed" cases have been fairly easy and straightforward to decide,other types of crimes-particularly more "minor" offenses-have given theCourt of Appeals considerable difficulty. In this section, I consider three types ofcases that have put the Court of Appeals to the test: administration of justice,petty theft, and crimes caused in part by substance abuse.A. "Administration of Justice:" In Re Campbell & In Re ShillaireSurprisingly, the Court has had trouble dealing with attorneys who commitjustice-related offenses. That is, the Court does not seem to hesitate disbarringattorneys who commit crimes that are unrelated to the practice of law, such aspossession of narcotics or distribution of child pornography, but when it comes tocrimes that relate to the administration of justice, the Court has backed awayfrom finding moral turpitude in every offense.In United States v. Campbell,97 a former D.C. Superior Court judge, JudgeCampbell, was convicted of receiving an illegal gratuity as a public official, acrime under 18 U.S.C. § 201(g). Judge Campbell, who had a civil docket, acceptedmoving services from a trucking company that appeared numerous timesbefore him as a defendant. 98 Upon receipt of Judge Campbell's conviction infederal district court, the D.C. Court of Appeals referred the matter to the Boardon Professional Responsibility for disciplinary proceedings. The Board made aninitial determination that receiving an illegal gratuity as a public official is notmoral turpitude per se. The Board referred the case to a hearing committee forresolution of whether, on the facts, Judge Campbell's offense involved moral turpitude.The hearing committee concluded that it did not. However, a majority ofthe Board disagreed and recommended automatic disbarment because the crimeon the facts involved moral turpitude.The Court of Appeals agreed and automatically disbarred Judge Campbell forcommission of a crime that, on the facts, involved moral turpitude. 99 The Court,however, declined to hold that acceptance of an illegal gratuity was per se moralturpitude. loo The Court and the Board both seemed to be concerned that theremight be cases where an elected or appointed governmental official might accepta gratuity without being entirely blameworthy. The Board report states, "Itseems to us that citizens are prepared to accept a certain amount of human fallibilityon the part of their judges."lOl Are we?97 U.S. v. CampbeU, 684 F.2d 141 (D.C. Cir. 1982).98 See In re CampbeU, 522 A.2d 892 (D.C. 1987).99 See id. at 895.100 See id. at 894 ("We express no opinion as to cases involving government officials in theexecutive and legislative branches. We deal here with a member of the judiciary.").101 See id. at 895.

WHEN LA WYERS BREAK THE LAW 25Despite this finding, the Court and the Board both specifically condemned thefact that there was a nexus between the offense and the administration of justice.The Board report states, "[F]or judges to accept money from litigants in theircourts, even though they in fact do nothing to favor those litigants, strikes at thecore of the impartiality demanded for judges.,,102 If so, should not a finding ofmoral turpitude per se automatically follow? If the principal purpose of disciplinaryproceedings is to protect society and the courts,103 should not acceptance ofa gratuity have been high on the Court of Appeals' list of crimes of moral turpitudeper se? Should not the Court's previous decisions relating to obstruction ofjustice, such as In re Colson, one of the first moral turpitude cases, havecontrolled?One year after Campbell, the Court of Appeals decided In re Shillaire,104 acase that should seemingly be controlled by Campbell, but was not. In Shillaire,an attorney had harassed a federal witness, a crime in violation of 18 U.S.C.§ 1512(b). The Court of Appeals concluded that harassment of a federal witnessis moral turpitude per se. lOS The Court was particularly focused on the interestsof community and the protection of the judicial process. The opinion noted,"[T]he community has rights toO.,,106 Yet, the opinion did not analogize or distinguishCampbell, which had been decided only a few months before. Why arethe community'S "rights" any less important when a judge accepts an illegal gratuityas when an attorney harasses a witness?An argument can be made that Campbell is more serious than Shillaire. Acorrupt attorney's attempts to undermine the judicial system can do great damageto the system, for sure. But a corrupt judge, who has the power to makedozens of critical decisions a day, can do much more damage than a corruptattorney.This is not to say that the result in Judge Campbell's case would have been anydifferent had the Court decided that his acceptance of a gratuity involved moralturpitude per se. Both the Board and the Court found moral turpitude in JudgeCampbell's case on the facts. He was, thus, automatically disbarred. The only"problem" or "dilemma" is that, now, any future case of acceptance of a gratuityby a public official will not result in automatic disbarment. Instead, the case willbe analyzed for moral turpitude on the facts. The question must be asked: Whyshould a judge or other high ranking government official who undermines governmentalintegrity possibly receive a lesser disciplinary sanction than an attorneywho commits a crime unrelated to the functioning of the government?102 Id. at 897.103 In re Wild, 361 A.2d 182, 186 (D.C. 1976) (Kern, J., concurring in part and dissenting inpart).104 In re Shillaire, 549 A.2d 336 (D.C. 1988).105 Id. at 343.106 Id. at 338.

26 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWB. "Petty Theft:" In Re Kent & In Re SpiridionAs discussed previously, the Court of Appeals has had little difficulty findingmoral turpitude when an attorney steals or deceives people out of thousands ofdollars. lo7 But what about minor thefts? Tho cases, In re Kent l08 and In reSpiridon,109 illustrate the difficulty the Court of Appeals and the Board on ProfessionalResponsibility have had, over time, in dealing with petty thefts.In re Kent involved the discipline of a former Department of Justice trial attorney,Lorna Kent, who, "while suffering from transient emotional distress," entereda department store in Washington, D.C., and shoplifted. 11o The manner inwhich Ms. Kent-a distinguished DOJ employee-shoplifted, however, indicatedto the Court that her behavior was out-of-character for her.111 Although sufferingfrom emotional problems for several years, one day she "snapped," left work,entered a nearby department store and began randomly grabbing merchandiseand stuffing it into her bag. "She did this in an open fashion, aware that salesclerks and store detectives were observing her actions.,,112 She later pled gUiltyto taking property without right, a misdemeanor. 113The Court of Appeals concluded that Ms. Kent's unusual and out-of-characteractions were not moral turpitude under Disciplinary Rule 1-102(A)(3).114 "[T]heunusual facts and circumstances of this case clearly indicate that respondent'sactions were prompted by a neurotic desire to be caught rather than a desire forpersonal profit. ,,115 The Court found that Ms. Kent's actions involved "dishonesty,"in violation of Disciplinary Rule 1-102(A)(4), and ordered her suspendedfor 30 days.116 The Court was particularly focused on the fact that Ms. Kent'sactions were not for personal gain and her "single incident of dishonesty wascompletely unrelated to her practice of law.,,117However, in other cases, the Court has clearly rejected any practice-of-Iawnexustest. 118 Why does this factor suddenly become relevant in Kent? Perhapsone explanation is that the Court was actually placing the most weight on the107 See Theft and Fraud Offenses, infra Part II.C.2.108 In re Kent, 467 A.2d 982 (D.C. 1983).109 In re Spiridion,755 A.2d 463 (D.C. 2000).110 Kent, 467 A.2d at 983.111 See id. at 984.112 Id. at 983.113 In re Kent was not a moral turpitude case. She was prosecuted under the then-DisciplinaryRules, not D.C. Code § 11-2503(a). This is in line with the court's future holding in In re McBride thatmisdemeanors could never involve moral turpitude per se.114 See id. at 984. This was not a case being prosecuted under D.C. Code § 11-2503(a).115 Id.116 See id. at 985. The Board on Professional Responsibility had ordered a 1-year plus 1-daysuspension. See id.117 Id.118 See Sex-Related Crimes, infra Part II.C.4.

WHEN LA WYERS BREAK THE LAW 27other cited reason, the lack of personal profit motive. But is it possible to draw adistinction between a theft-type crime committed for personal gain and a thefttypecrime committed for another reason? Is there any other reason why a personwould commit theft but not be motivated by personal gain? The Court almostseems to suggest that Ms. Kent was, in fact, not gUilty of theft because she lackedcriminal intent. 119 If that is the case, what of the Court's admonition in In reColson, that a disciplinary proceeding is not an opportunity to retry one'scase?120Or, perhaps the somewhat pathetic facts of Kent led the Court to inject someequity or legal realism into its decision-making, a factor which might explain theother case concerning "petty" theft, In re Spiridon. 121 John Spiridon was licensedto practice law in Maryland, but never obtained a job as an attorney. In 1996, hewas working as a bus driver for the city of Ocean City, Maryland. He was convictedof theft, a misdemeanor under Maryland law, for stealing $18 from his busfares. He claimed that alcoholism and family troubles had led him to commit theact spontaneously. Because the crime Spiridon was convicted of was a misdemeanor,the Board had to examine the case to determine whether there wasmoral turpitude on the facts. While rejecting Spiridon's argument that he shouldnot be disbarred for stealing a "de minimis" amount of money, $18, the Boardalso rejected Bar Counsel's argument that "theft is theft" and all thefts should bedealt with equally. After taking into account Spiridon's alcoholism, family difficulties,his inability to find a job in the legal field, the blatant nature of his actions(he had stolen the money in plain view of the passengers), and the relativelysmall amount of money involved, the Board found that moral turpitude was notpresent on the facts, and recommended that the Court of Appeals suspendSpiridon for one year, with a requirement that he demonstrate fitness before reinstatement.Bar Counsel took exception to the Board's decision and filed anappeal. Bar Counsel's argument before the Court was that theft offenses whichinvolve an intent to defraud must result in disbarment on the facts, regardless ofwhether they are misdemeanors or felonies.The Court's decision explicitly rejected this argument. Calling Bar Counsel'sargument "inflexible," the Court held that "McBride and subsequent decisionsapplying it make clear that, when a misdemeanor conviction is at issue, it is notenough to look solely to the elements of the offense to determine moral turpitude,even if the offense would involve moral turpitude per se were it a felony.,,122The Court then conducted a fact-specific analysis of the case. Agreeingwith the Board that the amount of money involved ($18) was relatively small and119 Kent, 467 A.2d at 984.120 See Colson, 412 A.2d at 1167.121 755 A.2d 463 (D.C. 2000).122 [d. at 466.

28 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthat the evidence was not clear whether Spiridon took the money for personalgain or because of "'self-defeating behavior' consistent with his psychologicalproblems." 123Spiridon highlights the importance of McBride's misdemeanor-felony distinction.Since misdemeanors can never be crimes of moral turpitude per se, attorneysthat commit them must necessarily be given a chance to argue the issue ofmoral turpitude on the facts. Is this fair, though? Why should misdemeanantsreceive a chance to avoid the moral turpitude rule while felons must be automaticallydisbarred? The Spiridon Court answered the question with a "homely example:,,124the person who steals a loaf of bread to feed his starving children.Such a crime may be moral turpitude per se "if society deems it an unexcusedfelony offense, but if society has deemed it only a misdemeanor, then for Mc­Bride purposes the motive can be taken into account.,,12S The Court thus correctlyrecognizes that the moral turpitude question is largely dependent on theclassifications in the criminal codes by the political branches of government.C. Substance Abuse: In Re KerseyThe D.C. Court of Appeals and Board on Professional Responsibility are continuallyinflicted with the problem of attorneys who commit crimes or violate theRules of Professional Conduct because of alcoholism or other substance abuse.Indeed, the District of Columbia is not alone in this area; most disciplinary authoritieshave struggled with this issue. 126There is good reason to believe that the incidence of substance abuse, includingalcoholism, amongst attorneys is on the rise. 127 A 1987 survey of the Washingtonstate bar found that one-quarter of lawyers had tried cocaine sometime intheir lives. 128 Eighteen percent admitted to being alcoholics. 129 Substance abuseis also not just confined to members of the bar; law students suffer as well. A1993 study by the American Association of Law Schools (AALS) found that 9%of law students had used some illegal substance in the month prior to thestudy.13o Most had used marijuana, but others had used cocaine, heroin, andLSD. 131123 Id. at 467.124 Id. at 466.125 Id.126 See Wilson, supra note 4, at 265-69.127 See Richard M. Marano, Appropriate Discipline for the Attorney-Addict, 68 CoNN. B.J. 368(1994).128 See ide129 See ide130 See Stephanie B. Goldberg, Law Students and Drugs, A.B.A. J., Mar. 1993, at 25.131 See ide

WHEN LA WYERS BREAK THE LAW 29Alcoholism and substance abuse lead to a number of problems includingmissed filing deadlines, failure to advise clients of the status of legal proceedings,failure to appear in court as scheduled, unauthorized use of clients' funds to supportthe attorney-addict's habit, and a general inattention to work. 132Because of the seriousness of the problem, some have called for more attemptsby the bar to help fellow attorneys overcome their addictions. 133 "A policy ofhelping attorneys overcome their substance abuse would be furthered by allowinga mitigation of attorney discipline on a showing of good-faith attempts by theattorney in question to rid himself of his dependency.,,134The D.C. Court of Appeals does not consider alcoholism-or any other mitigatingfactor-in moral turpitude proceedings. That is because the statute, D.C.Code § 11-2503(a), is mandatory in its terms. The Court of Appeals held in In reHopmayer135 that the only issue in a case where an attorney commits a crime ofmoral turpitude (whether per se or on the facts) is whether a valid criminal convictionwas entered. 136In cases where moral turpitude is not found, and an attorney is being chargedwith merely violating the Rules of Professional Conduct, alcoholism can be consideredas a mitigating factor. 137 In re Kersey138 is the definitive case on thesubject. In Kersey, an attorney was charged with committing over twenty ethicalviolations. However, the Court of Appeals found that Kersey's "professionalconduct was substantially affected by his alcoholism" and ordered five years ofprobation, with a suspended order of disbarment. 139 The Court admonished,however, that, "We recognize that the path to recovery from alcoholism is notalways a straight and narrow one. Thus, any violation will not necessarily mandaterevocation of Kersey's probation.,,14o Kersey frequently drank a fifth ofrum everyday. This led his law practice to go into disarray. He missed courtappearances, arrived late, appeared disheveled, was unprepared, commingled clientfunds, and was twice arrested for drunk-driving. 141 The Court mitigated, butdid not excuse, these violations because of Kersey's alcoholism,142 "We agree132 Marano, supra note 127, at 368.133 Id. at 370 ("a crucial concern [is] helping attorneys who are substance abusers begin thelong, hard road to recovery.").134 Id.135 In re Hopmayer, 625 A.2d 290 (D.C. 1993).136 See id. at 291.137 See In re Kersey, 520 A.2d 321, 326 (D.C. 1987) ("Today we hold that alcoholism is a mitigatingfactor to be considered in determining discipline.").138 Id. at 321.139 Id. at 328.140 Id. at 328 n. 23.141 See id. at 324.142 See id. at 322 ("While no jurisdiction has ever held that alcoholism is a defense to charges ofprofessional conduct, many jurisdictions have considered it a mitigating factor when imposingdiscipline. ").

30 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWwith the Committee and the Board that a sufficient nexus between Kersey's alcoholismand his misconduct has been established.,,143 Thus, Kersey establishedthat there exists a "but-for" test in order to mitigate discipline because ofalcoholism. 144The alcoholic-attorney has the burden of proving that his or her alcoholism"'substantially affected' the charged misconduct by a preponderance of the evidence.,,14SProof varies from case-to-case. 146 However, as explained by theCourt in In re Temple,147 alcoholism does not have to be the only cause of themisconduct; there may be other factors which contribute to the ethical violations.148 "[T]he attorney must show that the factor was sufficiently determinativeof his conduct that its removal can be expected to end the misconduct.,,149 Templealso held that addiction to prescription drugs could also be considered in mitigationso long as the medicine was lawfully obtained. 150CONCLUSIONIn the Court of Appeals' three decades of jurisprudence interpreting D.C.Code § 11-2S03(a)'s "moral turpitude" language, the Court has tried to answerthe following fundamental question that every disciplinary authority must ask:For which crimes should attorneys be automatically disbarred? The answer is ascomplicated as the question.Cases such as Kent and Spiridon demonstrate that the Court of Appeals oftentries to inject equitable, case-by-case considerations into its decisions. D.C. Code§ 11-2S03(a), however, directs the Court's analysis, much to the Court's chagrin.One Board member wrote, "We, as lawyers, face with dread the determination ofwhat crimes involve 'moral turpitude.' ,,151 Despite outlining three possible definitionsof "moral turpitude" in Colson, the Court of Appeals and the Board onProfessional Responsibility continue to wallow in statute-by-statute determinationsof moral turpitude per se. While the list of statutes that have been evaluatedfor moral turpitude has grown to several dozen, there are many that havenot. What of involuntary manslaughter?152 Public intoxication?143 Id. at 327.144 See ill. at 327 ("We hold that this 'but for' test is the standard that must be met in order toprove causation in disciplinary cases involving alcoholism.").145 In re Miller, 553 A.2d 201, 203 (D.C. 1989).146 See id. at 204.147 In re Temple, 596 A.2d 585 (D.C. 1991).148 See id. at 590.149 [d.150 See id. at 586.151 In re Campbell, 522 A.2d 892 (D.C. 1987).152 The Court in In re Hoare, 727 A.2d 316, 317 (D.C. 1999), sidestepped the issue of whetheraggravated reckless homicide was a crime of moral turpitude per se. See id. ("we express no opinionon the Board's finding that respondent's conduct did not involve moral turpitude.). However, the

WHEN LAWYERS BREAK THE LAW 31Is a statutory change likely? It appears not. D.C. Code § 11-2503(a) has notbeen amended at all since the early 1970s. Congress appears content to allow theCourt of Appeals and its Board decide these cases as they appear.Notwithstanding a few bumps along the way, the Court of Appeals has decideda relatively consistent jurisprudence on lawyer crime. The consistency isthat nearly all crimes involve moral turpitude. In the few decisions that haveinterpreted those few statutes as not involving moral turpitude (at least not perse), it is not clear, however, whether the Court has been altogether consistentwith its precedent. This interpretation is not surprising given the posture inwhich section 11-2503(a) cases end up in the Court's lap.Perhaps a time will come, however, when Judge Harris and Judge Nebeker'sdissent in Colson will be resurrected. They wrote: "The majority opinion makesdisbarment appear both routine and inevitable.,,153 Given the recent literatureon substance abuse by attorneys, there might soon be a call for a return to caseby-case,rather than statute-by-statute, determinations. Section 11-2503(a)presents cases in an awkward way to the Court: Stare decisis is mandated by statute.The result is a quasi-penal code that makes virtually all illegal acts cause forautomatic disbarment.Despite this seeming imbalance in the "system," it is not clear that public orjudicial opinion can change the ebb and flow of the tide. Calls for increased, or areturn to, professionalism are only likely to lead to more in the way of automaticdisbarments, in order to protect the public from the handful of criminals who fillour profession's ranks.Court in In re Small, 760 A.2d 612 (D.C. 2000), recently held that vehicular negligent homicide wasnot a crime of moral turpitude per se.153 In re Colson, 412 A.2d 1160, 1169 (D.C. 1979).

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHINGSerena L. Hargrove*It is tempting to pretend that minorities on death row share a fate in no wayconnected to our own, that our treatment of them sounds no echoes beyondthe chambers in which they die. Such an illusion is ultimately corrosive, forthe reverberations of injustice are not so easily confined.-Justice William Brennan 1INTRODUCTIONCapital punishment is the 21st century legal lynching tool used by many statesto eliminate African American males. Today's capital punishment stems directlyfrom lynching in the days of slavery and post slavery. In those days, if you werean African American and presumed to have committed a crime against a whiteperson, lynching was an automatic remedy.2 Billie Holiday's song, "StrangeFruit," paints a vivid picture of lynching-"Southern trees bear strange fruit Bloodon the leaves Blood at the root Black bodies swinging in the southern breeze;Strange fruit hanging from the poplar trees .... ,,3 Today, it is the same story, butthe scene is not under a tree, but in the courthouse.African American males currently represent about 43 % of death row inmates.4 As of 1995, African Americans have been sentenced to death in 85% ofthe cases involving white persons. 5 This is very alarming, especially since AfricanAmericans make up about 120/0 of the population in the United States. 6 In addition,of the total 83 federal capital punishment cases, 68 (820/0) minorities weresentenced to death? Furthermore, African Americans accounted for 47 of thedefendants sentenced to death, while only 14 whites were sentenced to death.8* Serena Hargrove, J.D., The University of the District of Columbia David A. Clarke School ofLaw, 2001.1 Richard C. Dieter, Esq., Death Penalty in Black & White: Who Lives, Who Dies, Who Decides,3 DEATH PENALTY INFORMATION CENTER (June 1998), available at .2 MICROSOFT® ENCARTA® ONLINE ENCYCLOPEDIA 2000, available at .3 Jason Watts, Strange Fruit, available at .4 See U.S. DEPARTMENT OF JUSTICE BUREAU OF JUSTICE STATISTICS, CAPITAL PuNISHMENTSTATISTICS, (last revised Dec. 10,2000), available at .5 Stephen B. Bright, Discrimination, Death and Denial: The Tolerance of Racial Discriminationin Infliction of the Death Penalty, 35 Santa Clara L. Rev. 433,461 (1995).6 Stephen B. Bright, Challenging Racial Discrimination in Capital Cases, 21 CHAMPION 19(1997).7 Id.8 Bright, supra note 6.

34 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWIn June 1998, the Death Penalty Information Center reported that "race ismore likely to affect death sentencing than smoking affects the likelihood of dyingfrom heart disease.,,9 In addition, the Death Penalty Year End Report showedthat the number of people on death row was at a record high and stands at3,517. 10 Of the 68 executions in 1998, only 11 of the executions involved a blackmurder victim even though 500/0 of all murders involved black victims. I IThere have been numerous studies done on calculating racial discrimination indeath sentences. 12 These studies have all shown large overtones of racial discrimination,stemming from the bench to the jury.13 Nevertheless, the courts andlegislative bodies have done nothing to confront racial discrimination. The courtshave set a high standard to challenge racial discrimination, making it almost impossiblefor African Americans to prevail. I4 The legislative bodies have donenothing to address this problem, despite the alarming case studies on racial discrimination.1s What does this cost an African American defendant? His hope,and ultimately his life.Capital sentencing on its face is not discriminatory. It is an effective tool topunish defendants that have committed heinous, atrocious, or cruel criminal acts.However, the problem arises in the way capital sentencing is being administered.This paper focuses on the relationship between lynching and capital punishment.This paper examines how the process of capital punishment was designedto work versus how it is currently being administered; the proposed actions andthe disregard for these proposals; and ways to combat racial discrimination incapital sentencing.I. LYNCHINGWhen in Gregg v. Georgia the Supreme court gave its seal of approval tocapital punishment, this endorsement was premised on the promise that capitalpunishment would be administered with fairness and justice. Instead, thepromise has become a cruel and empty mockery. If not remedied, the scan-9 Death Penalty Information Center, The Death Penalty in 1998: Year End Report (Dec. 1998),available at .10 1d.11 1d.12 John C. McAdams, The ABA's Proposed Moratorium on the Death Penalty: Racial Disparityand the Death Penalty, 61LAW & CONTEMP. PROBS. 153, 154 (1998).13 Dwight Sullivan, Testimony for the House Judiciary Committee RE: SB 792, 805, 824, THEAMERICAN CIVIL LIBERTIES UNION 1997, available at .14 McClesky v. Kemp, 481 U.S. 279 (1987).15 Kentucky Racial Justice Act, COALmoN FOR PRISONERS' RIGHTS NEWSLETTER (Jul. 1998),available at

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHINGdalous state of our present system of capital punishment will cast a pall ofshame over our society for years to come. We cannot let it continue.-Justice Thurgood Marshall 16 35Capital punishment is currently being administered to accomplish the objectiveof lynching: to eliminate African American males. For example, under Georgialaw, an African American man that raped a white female would be punishedto death, no exceptions. 17 However, if a white female were raped by a non­African American, the defendant faced imprisonment not to exceed 20 years, butnot less than two years. 1S Nevertheless, if an African American woman wereraped, regardless of the victimizer's race, the defendant faced a fine and imprisonmentat the discretion of the court. 19 Clearly, there was an inequitable enforcementof the death penalty against African Americans as there is today.Until 1920, lynching was considered to be an appropriate and legal tool forpunishing African Americans who allegedly committed crimes against white persons.20 When a white female would allege that she was raped by an AfricanAmerican male, a mob would gather and drag the accused from his bed. Themob would beat the accused and then hang him from a tree. The whole town waspresent, men, women, boys, and girls, as it was a joyous occasion. This event wascalled justice, putting a "nigger" in his place. 21 Never did anyone consider if anAfrican American man were innocent or if a white woman were telling the truth.All the mob wanted and needed to know was that the accused was black.Lynching was used as an eliminating tool specifically targeted at AfricanAmerican males. This was due to the fact that white people felt, and still feelthreatened, by African American males. 22 There were a total of 2,805 documentedlynchings between 1882 and 1930.23 However, African Americans accountedfor 2,500 of the lynched victims. 24 Congress threatened this channel ofelimination by proposing to establish anti-lynching laws. Therefore, a new toolwas needed. The new tool would have the same effect as lynching, but be implementedin a legal fashion, withstanding judicial scrutiny. A historian stated that,"'Southerners. . .discovered that lynchings were untidy and created a bad16 Dieter, supra note 1, at 4.17 Bright, supra note 5, at 439.18 Id.19 Id.20 Bright. supra note 5, at 440.21 Mark Gado, Lynchings in America: Carnival of Death, available at .22 Floyd D. Weatherspoon, The Devastating Impact of The Justice System on the Status of Afri·can American Males: An Overview Perspective, 23 Cap. V.L. Rev. 23, 30 (1994).23 lana Evans Braziel, History of Lynching in the United States, available at .24 Id.

36 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWpress ... [L]ynchings were increasingly replaced by situations in which the Southernlegal system prostituted itself to the mob's demand. Responsible officialsbegged would-be lynchers to 'let the law take its course,' thus tacitly promisingthat there would be a quick trial and the death penalty ... [S]uch proceedings'retained the essence of mob murder, shedding only its outward forms.' ,,25 Likelynchings, African American males are the target victims in capital punishment. 26U. CAPITAL SENTENCINGIn 1972, the Supreme Court recognized that capital sentencing process wastainted with racial discrimination. 27 Thus, the Court held that capital sentencingwas unconstitutional in Furman v. Georgia because of the discriminatory and arbitraryundertones against African Americans. 28 Moreover, the concept of legallynching develops in Furman. Furman involved three African American menwho were sentenced to death?9 Two of the three men were convicted of raping awhite woman, while the third was convicted of murdering a white person. 30 TheSupreme Court recognized that the race of the defendants as well as the victims,played a significant role in these defendants' cases. In Justice Douglas' concurrence,he stated that,it is cruel and unusual to apply the death penalty selectively to minoritieswhose numbers are few, who are outcasts of society, and who are unpopular,but whom society is willing to see suffer though it would not countenancegeneral application of the same penalty across the boards, and thatbecause of the discriminatory application of statutes authorizing the discretionaryimposition of the death penalty, such statutes were unconstitutionalin their operation. 31Justice Douglas' concurrence illustrates why there is such a gross racial disparityin capital sentencing. White persons regard African Americans as outcasts ofsociety. They are willing to see African Americans die, but will not allow whitepersons to suffer by the same penalty. That is why racial disparities are accepted.Numerous studies demonstrate the· acceptance of racial disparities.After the Supreme Court's holding in Furman, at least 35 state legislaturesenacted new death penalty statues. 32 In 1974, Congress also enacted a statute25 Bright, supra note 5, at 440.26 Sullivan, supra note 13.27 Furman v. Georgia, 408 U.S. 238 (1972).28 [d.29 [d.30 [d.31 [d. at 245 (Douglas, S., concurring).32 Gregg v. Georgia, 428 U.S. 153 (1976).

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 37that provided for capital punishment. 33 These federal and state statutes addressedthe concerns expressed in Furman primarily, "(i) by specifying the factorsto be weighed and the procedures to be followed in deciding when to impose acapital sentence, or (ii) by making the death penalty mandatory for specifiedcrimes.,,34 The Court stated capital punishment was not in itself unconstitutional,but when it is imposed. 35 Thus, in 1976, the Court reversed Furman and held inGregg v. Georgia, that the criminal sentencing process should be a guided process.36 The court set out guidelines to help states draft capital punishment statutes.The Court concluded that in order to ensure that a state's statute regardingcapital sentencing is not racially discriminatory, the statute must provide adequateinformation and guidance to the sentencing authority and provide a bifurcatedproceeding at which time the sentencing authority is "apprised of theinformation relevant to the imposition of sentence and provided with standardsto guide its use of that information."37 In 1990, the Court narrowed its holding inGregg, concluding that state statutes had to have guidelines and channel the discretionof the sentencing person. 38 Thus, "the scheme must channel the sentencer'sdiscretion by 'clear and objective standards' that both provide guidanceand make the death sentencing process rationally reviewable. ,,39The Model Penal Code provides guidelines to assist states in designing criminalsentencing statutes. These guidelines were implemented to at least reduce orpreferably eliminate racial discrimination by limiting the judge's discretion. 40However, the provision for capital punishment is minimal due to the fact thatthe guidelines themselves have no provision for capital punishment. 41 Moreover,the Code provides that, "'circumstances of aggravation and of mitigation shouldbe weighed and weighed against each other when they are presented in a concretecase.' ,,42 There are numerous factors that fall under each category when a sentencingauthority is deciding whether or not to seek the death penalty. However,the states are not required to adopt the Model Penal Code, but the states are touse the Code as a guide. In most jurisdictions, the death penalty is renderedwhen murders are considered to be "heinous, atrocious, or cruel," or when33 Id. at 180.34 Id.35 Id. at 183.36 Id. at 153.37 Id.38 Rebecca A. Rafferty, In the Shadow of McCleskey v. Kemp: The Discriminatory Impact of theDeath Sentencing Process, 21 New Eng. J. On Crim. & Civ. Confinement 271, 288 (1995).39 Id.40 Kendra Meinert, Criminal Injustice: Continuing Racial Inequities in Death Penalty Sentencing,22 SW. U.L. Rev. 1177, 1204 (1993).41 Id. at 1206.42 See Gregg, 428 U.S. at 193 (citing Model Penal Code §201.6, cmt. 3 at 71 (Tentative Draft No.9, 1959).

38 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWmurders are accompanied by another felony. A majority of the states considercertain aggravating and mitigating circumstances when deciding if the capitalpunishment is proper. Generally, the prosecutor is the one who decides whetheror not to seek the death penalty in criminal cases. The prosecutor's decision canalso be influenced by the requests of the victim's family.The next step is the selection of the jury and then the trial. If the defendant isconvicted, he or she has an automatic right to appeal the trial court's decision. Ifthe appellate court affirms the trial court's decision, the defendant is executed bythe electric chair, lethal injection, or a firing squad.In 1987, the Supreme Court was again faced with the issue of racial disparitiesin capital sentencing in the case of McCleskey v. Kemp.43 In this case an AfricanAmerican man was convicted of killing a white police officer and sentenced todeath. McCleskey filed a petition for a writ of habeas corpus claiming that Georgia'scapital sentencing process was administered in a racially discriminatorymanner, in violation of the Eighth and Fourteenth Amendments. 44 McCleskeyoffered a statistical study showing racial disparities in Georgia's capital sentencingpractices. This study is known as the Baldus Study, documented by ProfessorDavid Baldus, Charles Pulaski, and George Woodworth. 45The Baldus Study illustrated that there were gross disparities in Georgia's capitalsentencing administration. This study examined over 2,000 murder cases thatoccurred in Georgia during the 1970'S.46 In almost 90% of the cases involvingwhite victims since 1977, the death penalty was imposed. 47 The study concludedthat defendants who murdered white persons were 4.3 times more likely to receivethe death penalty than defendants who murdered black victims. 48 Consequently,in 11 % of cases involving white victims, the defendants were sentencedto death. However, in only 1% of cases involving black victims, the defendantreceived the death penalty.49 In addition, the death penalty was given in 22% ofthe cases involving black defendants and white victims, while the death sentencewas only given in 3% of the cases involving white defendants and black victims. 50Ultimately, the study concluded that out of all the factors used, such as the natureof the crime, and the occupation of a victim, the race of the victim was the pervasivefactor in determining whether a defendant should be sentenced to death.Today, lynching is still being played out on African American males. From1996-1998, Professor David Baldus, conducted an analysis of race and capital sen-43 McCleskey v. Kemp, 481 U.S. 279 (1987).44 Id.45 Id.46 Id. at 286.47 Weatherspoon, supra note 22, at 48.48 McCleskey, 481 U.S. at 287.49 Id. at 286.50 Id.

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 39tencing in Philadelphia with statistician George Woodworth. This study revealedthat African Americans in Philadelphia, like African Americans in the BaldusStudy, were 3.9 times as likely to receive the death penalty than non-AfricanAmerican defendants. 51 This study was based on case variations stemming fromthe severity of the crime to the background of the defendant. Still, after beingsubjected to numerous forms of analysis, the conclusions affirmed the continuinginjustice of race in capital sentencing: African American defendants were stillbeing sentenced to death far more than other defendants. 52In addition, Professor Jeffery Pokorak and researchers at St. Mary's UniversityLaw School conducted a national study based on capital punishment casesthroughout the country. This 1998 study revealed that white persons were almostexclusively the key decision makers in capital sentencing cases, which partly explainsthe reason for the racial disparities. 53 White persons (mostly male) accountedfor 98% of the Chief District Attorneys in counties that administer thedeath penalty, while African Americans accounted for 1 %.54In 1996, statistics of racial disparities were found to be excessive in Kentucky.African Americans accounted for 1000/0 of the death row inmates responsible formurdering white victims. However, there were no death row inmates responsiblefor murdering a black victim. Moreover, there have been over 1,000 AfricanAmericans executed since reinstatement of the death penalty.55 These overwhelmingstatistics of a gross racial disparity caused the Kentucky Legislature toaddress racial discrimination in their capital sentencing process.However, the states are not the only ones that have such a gross disparity intheir capital sentencing process. The Federal government has the worst recordregarding racial discrimination in capital sentencing. 56 Former U.S. AttorneyGeneral Janet Reno approved the death penalty in a Washington case in whichthere was little federal interest. She approved the sentence over the objection ofthe local U. S. Attorney. In addition, Reno approved death penalty sentences inher first ten cases, which were all against African Americans. 57Finally, more than three-fourths of studies on racial disparities have shownthat African American defendants were more likely than white defendants toreceive the death penalty.58 Clearly, these statistics validate the claims of racialdiscrimination in the capital sentencing process. Statistics from different states,51 Dieter, supra note 1, at 5.52 [d. at 2.53 [d.54 [d.55 [d. at 12.56 Bright et.al., The Death Penalty in the Twenty-First Century, 45 Am. U.L. Rev. 239, 296(1995).57 [d.58 [d. at 323.

40 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWas well as in the federal government, show stark similarities in the substantialimpact that race has on capital punishment. It is evident that if a defendant is anAfrican American and he is convicted of murdering a white victim, nine times outof ten, he will receive the death penalty. This gross disparity, unfortunately is anAfrican American defendants' reality. The question is what will the courts andlegislators do to counter this increasing problem of injustice?IlL THE CURRENT TRENDThe death penalty is essentially an arbitrary punishment. There are no objectiverules or guidelines for when a prosecutor should seek the death penalty,when a jury should recommend it, and when a judge should give it. This lackof objective, measurable standards ensures that the application of the deathpenalty will be discriminatory against racial, gender, and ethnic groups.-Rev. Jesse Jackson, 1996 59Today, capital punishment is underlined with racial discrimination against AfricanAmerican males. Capital sentencing is administered in an arbitrary andcapricious manner by a lynch mob: the bench, the prosecutors, the jury, and eventhe defense attorn~ys.The judge can have personal bias against African American males, which canimpair him or her from recognizing and correcting racial discrimination carriedforth by prosecutors in the sentencing process. A judge can influence the jury byinstructing the jury in an improper discriminatory manner. For example, in a casein which Attorney Ronald J. Tabak represented a Florida death row inmate, thejudge misinstructed the jury on· ten different occasions. 60 The judge told the jurythat they were not responsible for sentencing the defendant therefore, if theyrendered the death penalty as a verdict, their decision would not be on theirconsciences or shoulders because the judge could do whatever he wanted. 61 Thejudge was basically telling the jury that they could render a harsh sentence, thedeath penalty, and not feel guilty about it, because their verdict was of littleweight. 62 Clearly, that was wrong. Under Florida's law, the jury's decision carriesgreat weight. By the judge instructing the jury in such a manner, the jury couldnot render a fair verdict. 63In another case in Florida, a white judge stated during the trial penalty phaseof an African American defendant, "'since the nigger mom and dad are here59 Dieter, supra note I, at 13.60 Carter Center Symposium on the Death Penalty-July 24, 1997,14 Ga. St. U. L. Rev. 329,341(1998) (citing Dugger v. Adams, 489 U.S. 401 (1989».61 [d.62 [d.63 [d.

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 41anyway, why don't we go ahead and do the penalty phase today instead of havingto subpoena them back at cost to the state.,,,64 When the defendant, AnthonyPeek, challenged his death penalty sentence based on racial discrimination, theFlorida Supreme Court upheld the lower court's decision. 65 In addition, JudgeEarl Blackwell of Missouri stated in a press release while presiding over a deathpenalty case of an African American defendant that, '[T]he Democrat partyplaces far too much emphasis on representing minorities ... people who don't (sic)want to work, and people with a skin that's any color but white ... ,66 Aftermaking this blatant racist statement, Judge Blackwell continued to preside overthe case in which the defendant was convicted and sentenced to death. 67 DespiteJudge Blackwell's racist remark, the Missouri Supreme Court affirmedBlackwell's death sentence in Missouri v. Kinder. 68There are countless other cases that have played out the same way. Yet, despitethese blatant remarks made by the person who has a vast amount of influencein deciding whether a defendant is sentenced to death, these verdicts areaffirmed by the appellate courts. What kind of message is being sent to AfricanAmerican defendants? Their lives are not valued. They are not human. Whatabout a defendant's fundamental right to a fair trial afforded by the United StatesConstitution? Are judges given the option to follow or not to follow the laws setforth in the Constitution, despite the oath that they take to uphold theConstitution?The prosecutor also carries much weight in the capital sentencing process. Inreality, it is at the prosecutor's discretion to seek the death penalty and whetheror not to withdraw a notice to seek the death penalty as a part of negotiated pleabargains. 69 Therefore, the courts should not tolerate prosecutors racially discriminatingagainst African American defendants. However, the courts do not challengerequests by prosecutors for the death penalty in cases against AfricanAmerican defendants.The Baldus Study revealed that prosecutors sought the death penalty in 70%of the cases involving African American defendants and white victims. In addition,prosecutors sought the death penalty in 320/0 of the cases involving whitedefendants and white victims and 19% of the cases involving white defendantsand black victims. 7o There is clearly a substantial difference in the cases involvingblack defendants and white victims compared to the cases involving whitedefendants and black victims. The reason for this disparity results from a prose-64 Dieter, supra note 1, at 4 (citing Peek v. Florida, 488 So. 2d 52, 56 (Fla. 1986».65 Id.66 Id. (citing Brief for Appellant, Missouri v. Kinder, 942 S.W. 2d 313 (Mo. 1996)67 Id. (citing Kinder, 942 S.W.2d at 313).68 Id. (Brian Kinder, an African American male was convicted and sentenced to death).69 Bright, supra note 5, at 434.70 See McCleskey, 481 U.S. at 287.

42 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWcutor's racial discrimination against African American defendants. For example,in 1997 during the election campaign for Philadelphia's District Attorney, one ofthe candidates (an Assistant D.A.) had a training video for new prosecutorswhich instructed them on whom to exclude from the jury.71 The video instructedthem not to select young black women and blacks from low income areas because"'young black women are very bad' to have on the jury and 'blacks from lowincomeareas are less likely to convict.'" The video also demonstrated ways fornew prosecutors to hide racial motivation in their jury strikes.72In Missouri, the highest court reversed an African American defendant'sdeath sentence when it was shown that the prosecutor used racial slurs whenreferring to African Americans. 73 In addition, the prosecutor excluded blackpersons from the jury and refused to plea bargain with African American defendantswho were charged with murdering white persons?4 Moreover, the prosecutoroffered plenty of plea bargains to white defendants, even in a case wherepersons had murdered four generations of African Americans?5The U. S. General Accounting Office conducted a study in 1995 on capitalpunishment. From that study, the GAO concluded that the way prosecutors pleabargainwith defendants can adversely impact African Americans and interferewith the GAO Sentencing Commission's goal of eliminating racial disparity in thecapital sentencing process?6 Thus, the study recognized the racial discriminationused by prosecutors against African American defendants.Prosecutors also try to ensure that African Americans will receive the deathpenalty by using their peremptory challenges to strike African American jurorsfrom serving on the jury. This process is usually referred to as the "death qualification.,,77Thus, only one side of the community is present (white persons),which also channels in racial discrimination by bringing in one race's stereotypicalviews about another race. For example, in Lingo v. State, a Georgia prosecutorprevented African American jurors from participating in the trial by using alleleven of his peremptory challenges against them, enabling him to have an allwhite jury,1B There was another case in Alabama, where a prosecutor used 26 ofhis peremptory challenges to exclude African Americans from serving as jurors.71 Dieter, supra note 1, at 4 (citing M. Janofsky, Under Siege, Philadelphia's Criminal JusticeSystem Suffers Another Blow, N.Y. TImes, Apr. 10, 1997).72 [d.73 Bright, supra note 5, at 471 (citing State v. Taylor, 18 S.W.3d 366 (Mo. 1993); State v. Nunley,923 S.W.2d 911 (Mo. 1993».74 [d.75 [d.76 Weatherspoon, supra note 22, at 25.77 Bright, supra note 5, at 454.78 [d. at 455 (citing Lingo v. State, 437 S.E.2d 463 (Ga. 1993».

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 43In addition, he categorized the potential jurors into four lists: "strong," "medium,""weak,"and "black.,,79In Holland v. Illinois, Justice Marshall argued in his dissent that, "'raciallydiscriminatory applications of peremptory challenges improperly harm constitutionallyprotected values whether or not the defendant and [the] excluded Uurors]are from the same racial group.' "so The evidence is clear that prosecutorsracially discriminate against African Americans to ensure that a death sentencedis imposed. District Attorney Ed Peters of Mississippi publicly announced thathis policy is to "get rid of as many black citizens as possible when exercising hisperemptory challenges to select a jury."Sl He was never reprimanded for hisstatement. Is this justice? Courts have done nothing to weed racist prosecutorsout of the justice system. Instead, the courts support the prosecutors' decisions,instead of investigating the situation. Justice Brennan along with Justices Marshall,Blackmun, and Stevens stated that, "'the discretion afforded prosecutorsand jurors in the Georgia capital sentencing system, creates such opportunitiesfor racial considerations to influence criminal proceedings.' "S2The jury, which plays a vital part in the capital sentencing process, has beenknown to discriminate against African Americans. There have been many casesin which the jury was interviewed after the trial and stated that they used racialslurs when talking about African American defendants in capital sentencingcases. For example, jurors in Georgia, admitted using racial slurs during deliberations.Despite that fact, the court upheld the death penalty, stating that theevidence "'shows only that two of the twelve jurors possessed some racialprejudice and does not establish that racial prejudice caused those two jurors tovote to convict [the defendant] and sentence him to die.",s3When jurors have stereotypical beliefs about African Americans, their beliefswill surface in their decision-making process. These racist beliefs can prevent ajuror from considering other evidence about the defendant's life and backgroundas mitigating circumstances. s4Defense attorneys also bring in racial discrimination which can hurt their clients'chances of prevailing on a death penalty charge. For example, in Dobbs v.Zant, the defense lawyer expressed his racist views about African Americans.Despite the lawyer's assertion, the District Court and Court of Appeals affirmedthe defendant's conviction, stating that the defense attorney was not the person79 ld. at 448.80 Christopher E. Smith, Race-lng into the Twenty-First Century: The Supreme Court and the(E) Quality of Justice, 28 U. Tol. L. Rev. 279, 291 (1997) (citing Holland v. Illinois, 493 U.S. 474 (1990)(Marshall, J. dissenting».81 Bright, supra note 5, at 447.82 See McCleskey, 481 U.S. at 333.83 Bright, supra note 5, at 447.84 Bright, supra note 6, at 22.

44 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWwho rendered the verdict, therefore, his racist views did not affect his client'scase. 8SHow can a defense attorney represent his or her client in a sufficient manner ifhe or she regards the client in a demeaning way? That takes away from his or herenthusiasm to advocate on behalf of the client. In addition, the defense attorneywould share the same views as the racist judge, prosecutor, and jury. The defenseattorney would never try to correct or challenge racial discrimination in the trial.Instead, he or she would go along with their decisions. In order for a lawyer tosufficiently represent the client, he or she must know about the client and theclient's family, investigate his life and background, and know the people he workswith. 86 If the lawyer believes that the client's race is inferior, he or she is notgoing to represent the client adequately.87There are many ways in which racial discrimination leaks into capital sentencingcases. Unfortunately, the persons who should be untouched by racial biasesare the ones who bring racial discrimination to the forefront. How can AfricanAmericans combat this continuing problem? Who will help African Americandeath row defendants receive justice - the courts or the legislatures?IV. THE COURTS' INDIFFERENCE TO RACIAL DISCRIMINATIONThose whom we would banish from society or from the human communityitself often speak in too faint a voice to be heard above society's demand forpunishment. It is the particular role of courts to hear these voices, for theConstitution declares that the majoritarian chorus may not alone dictate theconditions of social life.-Justice William Brennan 88The courts have acknowledged that racial discrimination is present in capitalsentencing. In 1956, the Supreme Court held in Griffin v. Illinois, that the EqualProtection Clause could be violated if discrimination were evident in criminaltrials. 89 In 1972, Justice Douglas stated in his concurring opinion that, "it wouldseem to be incontestable that the death penalty inflicted on one defendant is'unusual' if it discriminates against him by reason of his race, religion, wealthsocial position, or class, or if it is imposed under a procedure that gives room forthe play of prejudices. ,,9085 Bright, supra note 5, 459.86 Bright et.al., supra note 55, at 294.87 Id.88 Dieter, supra note 1, at 20.89 Rafferty, supra note 38, at 281.90 See Furman, 408 U.S. at 242.

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 45Despite the Supreme Court's acknowledgment of racial discrimination's presencein the capital sentencing process, the Court has set a high standard for defendantsto challenge such discrimination. In McCleskey, the Court held thatracial discrimination must be proved by showing intentional discrimination, insteadof discriminatory impact. Therefore, the defendant must prove that the"purposeful discrimination 'had a discriminatory effect' on him. ,,91 This is nearlyimpossible to do, unless the defendant has concrete evidence specific to his trialthat persons acted in a racial discriminatory manner. However, even in cases inwhich a defendant has concrete evidence of blatant racial remarks made by thejudge, prosecutor, jury, or defense counsel, the courts have held that their actionsdid not affect a defendant's trial. Statistics can only be used to show intent whenthe disparate impact is "'so strong as to lead inevitably to finding of motivationand intent, absent some other explanation. . .' ,,92 So, where does that leave adefendant? Nowhere. It is like a never ending circle.The courts have also refused to require that prosecutors provide explanationsfor their decisions to request the death penalty. A prosecutor is only required toprovide an explanation for his or her decision when a defendant establishes aprima facie case of unconstitutional conduct with respect to his case. 93 A primafacie case is established when a defendant proves that (1) "he is a member of agroup that is a recognizable, distinct class, singled out for different treatment,"(2) "that there is a substantial degree of differential treatment," and (3) "showthat the alleged discriminatory procedure is susceptible to abuse or is not raciallyneutral. ,,94 Therefore, a prosecutor is allowed to use his or her wide discretion inwhatever manner he or she wants, even if it is racially discriminatory.There have been cases in which the courts have overturned capital punishmentsentences. However, the courts never mention that the cases were overturneddue to findings of racial discrimination. It is as if the courts are afraid to state intheir opinions that racial discrimination is apparent in capital sentencing cases.What are the courts trying to do? Are they covering up the truth? The courts donot want to "rock the boat." They are afraid of upsetting the majority by givingthe minority groups an avenue to challenge legal lynching.The federal courts offered minorities the greatest hope of overcoming racialdiscrimination. However, due to the Supreme Court's reluctance to provide aremedy for racial discrimination in capital sentencing cases-that hope has beendiminished. The Court has sent a message that the courts are "no longer interestedin protecting the rights of minorities."9591 See McCleskey, 481 U.S. at 292.92 Meinert, supra note 40, at 1203.93 See McCleskey, 481 U.S. 279, 297 (citing Batson v. Kentucky, 476 U.S. 79 (1986».94 See id. (citing Batson, 476 U.S. at 94).95 Bright, supra note 5, at 437.

46 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWv. CONGRESS FAILS TO AnDRESS RACIAL DISCRIMINATIONIt is the poor, and the members of minority groups who are least able to voicetheir complaints against capital punishment. Their impotence leaves themvictims of a sanction that the wealthier, better-represented, just-as-guilty personcan escape. So long as the capital sanction is used only against the forlorn,easily forgotten members of society, legislators are content to maintainthe status quo, because change would draw attention to the problem and concernmight develop. Ignorance is perpetuated and apathy soon becomes itsmate, and we have today's situation.-Justice Thurgood Marsha1l 96Since the courts have not found a solution to confront racial discrimination incapital sentencing, Representative John Conyers (D-MI) has tried to come upwith one. In 1988, Rep. Conyers introduced the Fairness in Death SentencingAct (The Racial Justice Act). The Act provides criminal defendants facing thedeath penalty with an opportunity to show racial discrimination by evidence ofdiscriminatory impact through the use of statistics, instead of discriminatory motive,intent, or purpose by any person or institution. 97The Racial Justice Act is activated when a state has racially disproportionatepatterns in carrying out the death penalty. A disproportionate pattern occurs"when the death penalty is imposed: (1) more frequently upon persons of onerace; (2) or more frequently as punishment for crimes against persons of onerace.,,98 The defendant establishes a prima facie case through statistics that showa racially disproportionate pattern in the administration in capital sentencing.The government can rebut a prima facie case by "establishing by clear and convincingevidence that identifiable nondiscriminatory factors explain the racialdisparity. ,,99The Act requires states and federal entities that impose the death penalty to"collect and maintain pertinent data regarding the charging, disposition, and sentencingpatterns for all cases that are eligible for the death penalty."lOO Moreover,a state court can only determine on the merits that a factual issue pertinentto the claim is true when the state has collected and maintained the necessarydeath penalty data. In addition, the factual determination must be made in a96 DERRICK A. BELL, JR., RACE, RACISM, AND AMERICAN LAW 338 (3rd ed. 1992).97 Racial Justice Act of 1988, H.R. 4442, 100th Cong. (1988); See also Racial Justice Act of1993, H.R. 3329, 103rd Congo (1993).98 Id.99 Id.100 Id.

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING 47court proceeding where the defendant will be afforded the rights required underthe Act. lotThe Act can be effective because it establishes a checks and balances systemwithin capital punishment sentencing. The Act also gives African Americandeath row defendants a recourse to challenge racial discrimination, which theycurrently do not have.However, the Act has passed the House of Representatives twice, but hasfailed to pass in the Senate. Congress is aware of the racial disparities that plaguethe capital sentencing process, but has chosen to remain silent. In 1995, Congressasked the GAO to conduct a report on racial disparities in capital sentencing.The GAO found that "[t]he evidence for the race of victim influence was strongerfor the earlier stages of the judicial process (e.g., prosecutorial decision to chargethe defendant with a capital offense, decision to proceed to trial rather than pleabargain) than the later stages.,,102 Congress clearly knows that some form ofsafeguard is needed to ensure that African American death row defendants receivea fair trial. So, why did the Senate reject the Act? Congress does not wantto address the issue. It is as if they condone legal lynching.Kentucky is the only state that has passed legislation similar to the Racial JusticeACt. 103 On May 1,1998, Kentucky's Governor Patton signed the KentuckyRacial Justice Act into law. 104 This bill was introduced after studies revealed thegross racial disparity in Kentucky's capital sentencing process. lOSHopefully, the passage of Kentucky's Racial Justice Act will encourage otherstates to assess their capital sentencing processes and enact "Racial Justice Acts"as well. Moreover, this passage will motivate and encourage Congress to finallyface the peril of racial discrimination and pass the Racial Justice Act, whichwould give African American defendants a chance to challenge racialdiscrimination.VI. REMEDIESIt is imperative that death row inmates have some sort of recourse where theycan challenge racial discrimination. The Fairness in Death Sentencing Act is aneffective tool that confronts racial discrimination. However, it has not passed theSenate. I still encourage some form of legislation on the state and federal levelsthat will regulate the capital sentencing process. If Congress passes legislationrequiring that death row defendants have a way to challenge racial discrimination,the legislation would provide a means of checking the system to ensure that101 1d.102 Deiter, supra note 1, at 12.103 Kentucky Racial Justice Act, supra note 15.104 1d.105 1d.

48 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWdeath row defendants are receiving a fair trial. Legislation would eliminate or atleast reduce racial discrimination by the judges, prosecutors, jurors, and the defensecounsel.A second alternative, one that the Supreme Court has ruled on in McCleskey,is allowing counsel to ask jurors, enforcement officials, prosecutors, judges, defenselawyers, and court officials about their racial attitudes on voir dire. However,this alternative is limited. It only applies to cases which involve interracialcrimes. Thus, an African American who is charged with murdering another AfricanAmerican cannot automatically ask a prospective juror about his or her racialattitudes. In addition, the judge can limit voir dire, which could lead to raciallydiscriminatory overtones leaking into the process as a result of a racially biasedjudge.A third alternative is to abolish capital punishment completely. The problemwith this approach is that capital punishment is needed to punish those who imposea threat to the community. The problem is not capital punishment, but theway its being administered. So, to do away with an effective tool would be unreasonable.Not only that, but the Supreme Court has already held that the deathpenalty is constitutional.I propose a combination of the first two alternatives, however, with a fewchanges. Under the voir dire approach, courts should extend this method to alldeath row defendants and place some sort of checks and balances system, providedby the appellate courts, to ensure that judges are using their discretion in afair manner. Moreover, McCleskey, should be overturned to allow death rowdefendants to use statistical evidence to show racial discrimination. Justice Powell,who voted affirmatively in this case, stated in his autobiography that if hecould change any of his rulings in his term on the Supreme Court, he would mostcertainly have voted against the McCleskey majority opinion, a vote which wouldhave provided death row defendants with a way to prove racial discrimination. 1OOI urge the Supreme Court to take one of their late brethren's advice, and overturnMcCleskey so that legal lynching is destroyed and African American deathrow defendants' lives are saved.CONCLUSIONThe courts, Congress, and the American people cannot continue to allow AfricanAmerican defendants to be lynched. The evidence of racial discrimination isgrossly apparent. We can no longer hide from the truth. Justice Brennan warnedthe Court that racial discrimination is not merely part of history, and cannot beignored by the present Court:106 Bright et. aI., supra note 55, at 324.

CAPITAL PUNISHMENT: 21ST CENTURY LYNCHING49At the time our Constitution was framed 200 years ago this year, blacks'had for more than a century before been regarded as beings of an inferiororder, and altogether unfit to associate with the white race, either in socialor political relations; and so far inferior, that they had no rights which thewhite man was bound to respect.' Scott v. Sandford, 19 How. 393, 407, 15L.Ed. 691 (1857). Only 130 years ago, this Court relied on these observationsto deny American sanctioned racial segregation, stating that '[i]f onerace be inferior to the other socially, the Constitution of the United Statescannot put them upon the same plane.' Plessy v. Ferguson, 163 U.S. 537,552 (1896).In more recent times, we have sought to free ourselves from the burden ofthis history. Yet it has been scarcely a generation since this Court's firstdecision striking down racial segregation, and barely two decades since thelegislative prohibition of racial discrimination in major domains of nationallife. These have been honorable steps, but we cannot pretend that in threedecades we have completely escaped the grip of an historical legacy spanningcenturies. Warren McCleskey's evidence confronts us with the subtleand persistent influence of the past. His message is a disturbing one to asociety that has formally repudiated racism, and a frustration gone to a Nationaccustomed to regarding its destiny as the product of its own will.Nonetheless, we ignore him at our peril, for we remain imprisoned by thepast as long as we deny its influence in the present. 107Unfortunately, there is no magic formula that can wipe out racial discrimination.But something must be done to prevent legal lynching from destroying theAfrican American race. Without some sort of regulation on capital punishmentsentencing from the courts or legislation, African American defendants will continueto be lynched.We can no longer tolerate racial discrimination in capital sentencing cases.Justice cannot prevail if the courts and legislatures avoid the questions of racialdiscrimination. What will be done to eliminate or at least reduce racial discriminationfrom tainting the capital sentencing process? To ignore the question willnot prevent racial discrimination from occurring. The current standards for challengingracial discrimination must be replaced with standards that acknowledgeand address this problem.There is no room for mistakes. Lives are on the line. These are not situationswhere a defendant who is falsely accused, serves two years in jail, and takes controlof his or her life again. Death is the ultimate finality, and nothing can replacea life lost. Will we continue to be silent and let the problem foster or will we act?The choice is ours. What will we do?107 Bell, supra note 95, at 335-336.

MANDATORY MINIMUM SENTENCES COUPLED WITHMULTI-FACET INTERVENTIONS: AN EFFECTIVERESPONSE TO DOMESTIC VIOLENCEAngela M. Killian*When I die bury me in my long white dress. I want a pretty blue coffin. Pleaseput socks on my feet because they are always cold. Put gloves on my handstoo, white. I'm not a witch, I'm not a witch. I'm writing this because someonekeeps saying they're going to kill me. 1INTRODUCTIONImagine being a wife, mother of two, and a prisoner of your own fear. Further,imagine being punched in the head, beaten, and threatened by your significantother in your own home. Moreover, imagine yourself contemplating death bypreparing a will and pinning a note on a dress that you wish to be buried inbecause you know that your death is inevitable. For instance, your significantother tells your children that he is going to kill you stone dead. Also, your significantother shows your children a loaded shotgun and informs them that the shotgunis for you and if they are not careful, it could be for them as well.Finally, your significant other reveals to you in a letter that time is runningshort for you and him and he is ready to go anytime to lay his body to rest.Further, he proclaims that he is not going to be alone. As a result, you seekrefuge from the court by requesting an arrest warrant for your significant other'sarrest. Fortunately, for you, the judge does not hesitate in signing an arrest warrant.Meanwhile, a day passes and the bench warrant remains unprocessed becausethe court clerk's office leaves the judge's order for your significant other'sarrest unattended. Furthermore, the courthouse is closed for a long weekend dueto a holiday. Shortly thereafter, one morning, imagine yourself preparing to go towork and all of sudden you are dismayed by the presence of your significantother. That is, your significant other unexpectedly invades your home carrying a12-gauge shotgun. Next, you struggle and argue with your significant other. Fi-* J.D., University of the District of Columbia David A. Clarke School of Law, 2001. First of all,I would like to thank God for all of his many blessings. Second, I would like to thank my entirefamily for all of their love and support. Third, I would like to thank the District of Columbia's DomesticViolence Unit, My Sister's Place, House of Ruth, Court Services and Offender SupervisionAgency for the District of Columbia, and District of Columbia'S Domestic Violence Intake Center forall of their helpful insights into this comment. Finally, I would like to dedicate this comment toanyone who has lost a loved one to domestic violence.1 Donna St. George, Murder in the Making, THE WASHINGTON POST, Aug. 27, 2000, at At.(These were the actual words taken from a note pinned on a battered woman's dress who tragicallylost her life to domestic violence on Jan. 3, 2000).

52 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWnally, with one blast from the 12-gauge shot gun, your life ends in front of one ofyour children's eyes. Shortly thereafter, with a second blast from the 12-gaugeshotgun, your significant other ends his life leaving your children parentless.Unfortunately, the above illustration is not a hypothetical and the facts are notoverstated to illicit an emotional response from the reader, but it is rather theactual life of Janice Lancaster,2 a battered woman and mother of two, who tragicallylost her life to domestic violence. Unquestionably, Ms. Lancaster tookevery legal step conceivable to protect herself and her children from her husband.Specifically, she sought counseling and a protective order, she notified the policewhen he battered her, and she left her husband. Nonetheless, these steps werenot enough to preserve her life, and now her children are motherless.More importantly, Janice Lancaster is not the first casualty of domestic violenceand, certainly, she will not be the last. Domestic violence among intimates,is the leading cause of .injury to women in the United States. 3 Every year 4.8million women are .raped and physically assaulted by their intimate partners. 4Likewise, each year, 2.9 million ~en are physically assaulted by their intimatepartners. 5 Consequently, domestic violence among intimates today is a societalepidemic. Just like any epidemic, if domestic violence is left untreated, it willcontinue to usurp the lives of millions of women, men, and children annually inour society. In recent years, the District of Columbia has made considerablestrides in confronting this epidemic, namely, its Domestic Violence Unit 6 and itsDomestic Violence Intake Center. 7 In addition, in 1994, the federal governmentmade a significant contribution to domestic violence through its enactment of theViolence Against Women Act 8 and its reauthorization of the Violence AgainstWomen Act of 2000. 9I have assessed all of these notable efforts carefully and determined that despitethe District of Columbia's and federal government's considerable efforts,the epidemic lingers on and the problem only remains partially resolved. Therefore,I recommend that the District as well as other jurisdictions adopt a revolu-2 See Donna St. George, Murder in the Making, THE WASHINGTON POST, Aug. 27, 2000, at AI.See also, Annie Gowen & Craig Whitlock, Maryland Killing Mourned, Questioned; Judicial SystemFailed Slain Wife, Officials Say, THE WASHINGTON POST, Jan. 5, 2000, at BI.3 ALYCE D. LAVIOLETTE & OLA W. BARNETT, IT COULD HAPPEN TO ANYONE: WHY BAT.TERED WOMEN STAY 4-5 (S~ge Publications, Inc. 2d ed. 2000).4 OFFICE OF JUSTICE PROGRAM, NAT'L INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE, EXTENT,NATURE, AND CONSEQUENCES OF INTIMATE PARTNER VIOLENCE (2000) (presenting findings fromthe National Violence Against Women Survey on the extent, nature, and consequences of intimatepartner violence in the United States).5 [d.6 See District of Columbia Courts 1999 Annual Report 59.7 D.C. DOMESTIC VIOLENCE PLAN 62 (1995).8 Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994).9 Violence Against Women Act of 2000, Pub. L. No. 106-386, 144 Stat. 1491 (2000).

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE 53tionary but effective approach to combating this predicament, namely,mandatory minimum sentences coupled with multi-facet interventions. There arevarious types of domestic violence such as violence among intimates, children,stepchildren, other relatives, and individuals with disabilities and their caregivers.However, this comment will principally focus on domestic violence among intimatepartners.Part I of this comment will focus on the history of domestic violence amongintimate partners. Part II of this comment will examine the current state of domesticviolence among intimate partners. Part III of this comment will discussthe District of Columbia's response 10 to alleviating domestic violence for example,its Domestic Violence Unit ll and its Domestic Violence Intake Center.12Part IV of this comment will address the federal government's response to domesticviolence in recent years, namely, its enactment of the Violence AgainstWomen Act of 1994 and its reauthorization of the Violence Against Women Actof 2000. Part V of this comment will critically evaluate the District of Columbia'sresponse to the increase in domestic violence and explain why the District ofColumbia's response has not effectively stopped the spread of domestic violence.Part VI of this comment will provide an effective response to domestic violence,specifically, mandatory minimum sentences coupled with multi-facetinterventions.I. THE HISTORY OF DOMESTIC VIOLENCE AMONG INTIMATE PARTNERSHistorically, laws seemingly did not safeguard women against domestic violencebut rather laws authorized violence against women. For instance, in thelate Roman period, laws condoned violence against women, namely wives. 13Furthermore, laws acknowledged the right and the obligation of husbands to regulateand chastise members of their family "even if it meant killing them.,,14 Fortunately,in the seventeenth century, the Body of Liberties, the first Americanreform against domestic violence, were enacted by the Puritans in Massachusettsto protect wives from spousal abuse. 15 The Body of Liberties "provided that,'every married woman shall be free from bodily correction stripes by her hus-10 The District of Columbia has taken a number of preventive measures in abating domesticviolence, for instance, it has adopted a "no-drop" policy in prosecuting domestic violence cases andenacted several domestic violence related statutes.11 See DISTRlcr OF COLUMBIA DOMESTIC VIOLENCE PLAN 55 (1995).12 [d. at 62.13 PATRICIA GAGNE, BATTERED WOMEN'S JUSTICE 9 (Robert D. Benford ed., 1\vayne Publishers1998).14 [d.15 [d.

54 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWband, unless it be in his own defense upon assault.",16 That is, the Puritans onlysought to protect wives with clean hands. 17Arguably, the Puritans enacted these laws because they were concerned withmaintaining social order. IS Nevertheless, these laws were hardly ever enforced. 19In fact, when these laws were enforced, minor sentences were imposed on thehusbands?O Furthermore, Puritan law allowed husbands to physically chastisetheir wives and denied wives the legal right to chastise their husbands. 21 Unfortunately,other colonies were not concerned at all with regulating domestic violence.22 After the colonial period, citizens were more interested in shielding thefamily from state intervention rather than safeguarding family members fromeach other. 23Not surprisingly, there were only few laws with respect to abuse of wives orother forms of domestic violence until the mid-nineteenth century since, arguably,the common law in the United States observed the English rule ofthumb. 24Specifically, the rule of thumb authorized husbands to strike their wives with rodsor sticks no thicker than their husbands' thumbs. 25 In fact, efforts to criminalizewife abuse and domestic violence were taken only after domestic violence was"perceived as a threat to social order, when the defense of the traditional familyand beliefs favoring family privacy were weakest, or when social movementsbrought attention to the issue.,,26 Subsequently, Tennessee and Georgia enactedlaws, in 1850 and 1868 respectively, in which these states made it a misdemeanorfor husbands to beat their wives. 27 Also, a string "of appellate court decisionsemerged in Mississippi in 1824, followed by North Carolina in 1864 and 1868 andby other states later in the century, which declared 'moderate' forms of wife assaultlegal and more serious forms [of wife assault] illegal.,,28 However, despitethese noticeable efforts, the courts hardly ever punished abusive husbands or protectedwives because they were more interested in maintaining privacy within thefamily.2916 EVE S. BUZAWA & CARL G. BUZAWA, DOMESTIC VIOLENCE: THE CRIMINAL JUSTICE RE-SPONSES 29 (James A. Inciardi ed., Sage Publications 1996).17 GAGNE, supra note 13, at 9.18 Id.19 Id.20 Id.21 Id.22 Id.23 See id. at 10.24 Id.25 BUZAWA & BUZAWA, supra note 16, at 28.26 GAGNE, supra note 13, at 10.27 Id.28 Id.29 Id.

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE 55Still, throughout most of the twentieth century, violence against wives wasviewed as a privacy issue. 3o Furthermore, the social issue of wife abuse as a formof accepted patriarchal control was not acknowledged until the early 1970's, notwithstanding,ample evidence which revealed that violence against wives had existedfor centuries?l Subsequently, in 1972, the battered women's movementemerged. 32 Shortly thereafter, in 1974, the first battered woman's shelter in theUnited States was founded in St. Paul, Minnesota by a feminist group, the Women'sAdvocates. 33 By the 1980's, less than one-half of shelters in the UnitedStates were established by or associated with feminist groups, approximately onefourthof the shelters were established by church groups, and approximately onethirdof the shelters were established by the YMCA and civic organizations. 34Finally, in the1990's, the federal government and various states, including theDistrict of Columbia, recognized domestic violence as a significant societal ill andbegan to take preventive measures to minimize domestic violence. Specifically,in 1994, Congress enacted the 1.62 billion Violence Against Women Act of 1994which profoundly improved the response to domestic violence,35 Also, severalstates, including the District of Columbia, have enacted mandatory arrest statutesin cases of domestic violence. 36 All fifty states including the District of Columbiahave enacted statutes authorizing Civil Protective Orders (CPO) and TemporaryRestraining Orders (TPO) to protect domestic violence victims,37 Thirty-fourstates have enacted criminal contempt statutes to enforce protective orders. 38 Finally,several state prosecutors adopted "no drop" policies in prosecuting domesticviolence. 39II. CURRENT STATE OF DOMESTIC VIOLENCE AMONG INTIMATE PARTNERSEven today, in a new millennium full of hope and promise, domestic violenceremains a significant societal ill, namely, intimate partner violence. Intimatepartner violence are crimes committed against persons by their current or formerspouses, boyfriends, or girlfriends. 4o These crimes are predominately committed30 GAGNE, supra note 13, at 11.31 Id.32 Id.33 Id.34 GAGNE, supra note 13, at 12.35 LA VIOLETTE & BARNETT, supra note 3, at 151.36 BUZAWA & BUZAWA, supra note 16, at 122.37 Id. at 123.38 Deborah Epstein, Effective Intervention in Domestic Violence Cases: Rethinking the Roles ofProsecutors, Judges, and the Court System, 11 YALE J.L. & FEMINISM 3,12 (1999) (discussing the legislature'sresponse to domestic violence).39 See id. at 177.40 See BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, U.S. DEP'T OF JUSTICE, INTIMATEPARTNER VIOLENCE 1 (2000) (updating findings presented in VIOLENCE BY INTIMATES, Mar. 1998).

56 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWagainst women. 41 Specifically, the National Crime Victimization Survey(NCVS)42 reveals that out of approximately one million estimated violent crimescommitted against intimate partners in the United States, approximately 876,340,or 85%, were committed against women 43 and about 157,330, or 15%, were committedagainst men. 44 Murder, rape, sexual assault, robbery, aggravated assault,and simple assault are among the crimes committed against intimate partners. In1998, women were victimized by their intimate partners at a rate five times morethan their male counterparts. 45 That is, for every 100,000 persons, in 1998, 767women and were victimized by their intimate partners and 146 men were victimizedby their intimate partners. 46In fact, in 1998, 1,830 individuals were murdered by their intimate partners. 47Approximately 72%, or 1,320 of those murdered were women. 48 In 1998, intimatepartner homicides accounted for one-third of the murders of women. 49 Themajority of the victims of those intimate partner homicides were killed by theirspouses. 50More importantly, there are several characteristics associated with intimatepartner violence victims and among those characteristics are race, age, annualincome, martial status, home ownership, and place of domicile. 51 Statistics byrace reveal that African Americans are more likely to victimized by their intimatepartners, at a substantially higher rates than any other race. Namely, between1993-1998, African American women were victimized at a rate 350/0 higher thanthat of their white female counterparts and approximately 2 1 k times the rate offemales of other races. 52 Similarly, African-American men were victimized at arate of approximately 62 % higher than that of their white male counterparts andapproximately 2 1 k times the rate of males of other races. 53With respect to age, women between the ages of 20-24 are more likely to bevictimized than any other race or gender. Specifically, in 1998, for every 1,000women, 21 women between the ages of 20-24 were victimized by their intimate41 Id.42 The N.C.V.S. is a statistical series maintained by the Department of Justice to learn aboutthe extent to which crime is occurring. The N.C.V.S. gathers data on criminal victimization from anational sample of household respondents and provides annual estimates of crimes experienced bythe public without regard to whether the police was called about the crime.43 Id.44 See id at 2.45 Id.46 Id.47 Id.48 Id.49 Id.50 Id.51 See id. at 3.52 See id. at 4.53 Id.

AN EFFECTIVE RESPONSE TO DOMESTIC VIOLENCE 57partners. 54 Women between the ages of 20-24 were victimized at a rate eighttimes that of their male counterparts. 55 With regard to income, women withlower annual incomes are victimized at considerable higher rates than womenwith higher annual incomes. That is, between 1993-1998, women with annual incomesof less than $7,500 were victimized at rate of about seven times higherthan that of women with annual incomes of $75, 000 or better. 56Marital status also makes a difference. Divorced or separated men and womenare more likely to be victimized by their intimate partners. Namely, between1993-1998, divorced men and women experienced the highest rate ofvictimization by their intimate partners. 57 With respect to home ownership, womenand men residing in rental housing are more likely to be victimized at a ratesubstantially higher than women and men who own their homes. 58With respect to domicile, women domiciled in urban areas are more likely tobe victimized by their intimate partners than women domiciled in suburban andrural areas. 59 Conversely, urban and suburban men are victimized at similarrates. 60 However, urban men are victimized at a somewhat higher rate than ruralmen. 61More importantly, women and men are not the only ones affected by intimatepartner violence. In many cases, children are present when violence occursamong intimate partners. Between 1993-1998, children under the age of twelvewere present in 43 % of households where violence occurred among intimatepartners. 62 Unfortunately, for children, intimate domestic violence goes unreportedin many cases. Between 1993-1998, only Ih of the victims of intimate partnerviolence reported it to police. 63 African American women are more likely toreport incidences of violence than African American men. 64 Similarly, white womenare more likely report incidences of violence than white men. AfricanAmerican women are more likely to report incidences of violence than any othergender or race. This fact might explain why studies indicate that African Americanwomen are victimized at substantially higher rates than any other gender or54 Id.55 Id.56 Id.57 Id.58 That is, between 1993-1998, women living in rental housing were victimized by their intimatepartners at a rate three times that of women living in owned housing. Likewise, men living in rentalhousing were twice as likely to be victimized by their intimate partners than that of men living inowed housing.59 Specifically, between 1993-1998, urban women were victimized by their intimate partners atrates considerably higher than suburban women and at a rate relatively higher than rural women.60 Id.61 Id.62 See id. at 7.63 Id.64 Id.

58 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWrace, and thus, the studies may indicate a distorted reality. In short, domesticviolence, as it stands today, predominately affects women, many of whom arerelatively young mothers.III. DISTRIcr OF COLUMBIA'S RESPONSE To DOMESTIC VIOLENCEIn 1995, the District of Columbia made a conscious effort to combat domesticviolence in the District of Columbia by implementing its Domestic Violence Plan("the Plan") which led to the development of its Domestic Violence Unit and thecreation of its Domestic Violence Intake Center. 65A. Domestic Violence UnitIn recent years, the District of Columbia has adopted an integrated approachto processing domestic violence cases. In achieving this objective, the District ofColumbia created the Domestic Violence Unit ("DVU"). The DVU is a unified,specialized court that adjudicates both criminal and civil domestic violence relatedcases involving assault, threats, protective orders, child custody and / orchild support, spousal support or visitation. 66 A court action is warranted in theDVU when an intimate partner is injured or threatened by his or her intimatepartner. Specifically, the DVU has jurisdiction over domestic violence affairs ifthe victim and offender "are related by blood, marriage, having a child in common,legal custody, sharing or having shared a residence, or having had a datingrelationship. ,,67Annually, three judges and one hearing commissioner are assigned to DVU ona full-time basis. 68 Generally, judges assigned to the DVU are trained on domesticviolence issues prior to beginning their assignment. 69 Every two weeks, judgesassigned to the DVU meet with a number of representatives from various agenciesand organizations involved with the DVU, namely, the prosecutor, defenseattorney, victim advocates, the clerk's office, pretrial services, probation, and thecourt administration to discuss ways to improve any identifiable proceduralproblems with the DVU?O According to the 1999 Annual Report for District ofColumbia Courts, the DVU "has resulted in a more efficient use of judicial hearingson succeeding dates that may involve criminal assault, threats, protectionorders, child custody, child and spousal support and visitation."7165 See DISTRICT OF COLUMBIA DOMESfIC VIOLENCE PLAN (1995).66 See DISTRICT OF COLUMBIA COURTS 1999 ANNUAL REPORT 59.67 OFFICE OF THE U.S. ArrORNEY FOR THE DISTRICT OF CoLUMBIA, U.S. DEP'T OF JUSTICE,KNow YOUR RIGHTS: A VICTIM'S GUIDE TO THE DOMESTIC VIOLENCE JUSTICE SYSTEM 4.68 See Epstein, supra D. 38, at 33.69 [d.70 [d.71 See DISfRICT OF COLUMBIA COURTS 1999 ANNUAL REpORT.

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE 59B. Domestic Violence Intake CenterIn addition to the DVU, the District of Columbia established the DomesticViolence Intake Center ("DVIC") "to 'provide a one-stop shopping for the victimin order to facilitate [a victim's] participation in the court system.,,72 Toachieve this objective, the DVIC staff performs a variety of tasks: The staff interviewsvictims and assists them in completing temporary restraining order applications,civil protection orders and child support petitions;73 The staff assistsvictims in modifying and extending Civil Protective Order motions,74 and assistsvictims with proposed visitation schedules and child support documentation;75The DVIC staff also explains important aspects of the court process, such as securingwitnesses who may have seen episodes of domestic violence, and preservingevidence of domestic violence such as photographs, hospital records, andphysical evidence. 76Finally, the DVIC staff provides victims with safety advice, makes emergencyreferrals to social service programs and battered women's shelters 77 and assignseach victim an advocate who will provide the victim with support and guidancethroughout the legal process. 78 For instance, the advocate may accompany thevictim in court to secure a temporary restraining order or a civil protection order.C. Domestic Violence Related StatutesIn addition to the establishing the DVU and the DVIC, the District of Columbiahas also responded to the increase of domestic violence by enacting severalstatutes related to domestic violence. D.C. has a statute which provides for civilprotection orders (CPO) in cases of domestic violence. 79 This statute prohibitsabusers from abusing and threatening victims. 8o The District of Columbia usescriminal contempt sanctions to enforce its CPOS.81 Generally, in D.C., a CPO72 See Michelle R. Waul, Civil Protective Orders: An Opportunity for Intervention with DomesticViolence Victims, 6 GEO. PUBLIC POL'y REV. 51 (2000) (discussing the role of the D.V.I.C.).73 See DISTRICf OF COLUMBIA DOMESTIC VIOLENCE PLAN 63 (1995).74 Id.75 Id.76 Id.77 See DISTRICf OF COLUMBIA DOMESTIC VIOLENCE PLAN 63 (1995).78 Id.79 See D.C. CODE ANN. § 16-1005 (c) (2000). See also Waul, supra n. 70, at 58-59 (discussing theD.V.I.C. in the C.P.O. process). See also OFFICE OF THE U.S. ATTORNEY FOR THE DISTRICf OF CO.LUMBIA, U.S. DEP'T OF JUSTICE, KNOW YOUR RIGHTS: A VICfIM'S GUIDE TO THE DOMESTIC VIO.LENCE JUSTICE SYSTEM (for a detailed discussion of the process of obtaining a civil protection order inthe District of Columbia).80 See D.C. CODE ANN. § 16-1005 (c)(1) (2000).81 D.C. CODE ANN. § 16-1005 (f) (2000). See also Deborah Epstein, supra note 38, at footnote45.

60 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWlasts for one year after it is issued and can be renewed by the victim after oneyear. 82Judges in D.C. have a great deal of discretion in customizing CPOs to assistand protect domestic violence victims in a variety of ways: Judges can use CPOsto order abusers not to threaten, assault, stalk, or physically or sexually abusevictims. 83 Judges can also include stay-away orders in the CPOs to compel abusersto stay away from their victims' homes and workplaces;84 Judges can useCPOs to award domestic violence victims temporary custody of minor children,85CPOs can include vacate orders to compel abusers to leave home during the durationof the CPO;86 judges can use CPOs to require abusers to seek domesticviolence counseling. 87 Additionally, judges can use CPOs to award court costs,attorney's fees to domestic violence victims,88 and temporary child supportfees. 89The District of Columbia also has a mandatory arrest statute that compels policeofficers to make arrests if they have probable cause to believe that domesticviolence has occurred,9o an anti-stalking statute which enjoins abusers from stalkingdomestic violence victims 91 and a parental kidnapping statute which prohibitsabusers from abducting, concealing, or harboring children from domestic violencevictims. 92 D. "No-Drop" PolicyFinally, in addition to DVU, DVIC, and a number of domestic violence relatedstatutes, the District of Columbia has a "no-drop" policy in prosecuting domesticviolence cases. 93 Specifically, D.C. prosecutors assigned to DVU treat domesticviolence as is if it was a crime against the state. 94 That is, once criminal charges82 D.C. CODE ANN. § 16-1005 (d) (2000).83 See OFFICE OF THE U.S. ArrORNEY FOR THE DISTRICT OF COLUMBIA, U.S. DEP'T OF Jus­TICE, KNow YOUR RIGHTS: A VICTIM'S GUIDE TO THE DOMESTIC VIOLENCE JUSTICE SYSTEM 11. Seealso D.C. CoDE ANN. § 16-1005 (e)(l) (2000).84 [d. at 11.85 See D.C. CODE ANN. § 16-1005 (e)(6) (2000).86 § 16-1005 (e)(4). See also OFFICE OF THE U.S. ArrORNEY FOR THE DISTRICT OF COLUMBIA,U.S. DEP'T OF JUSTICE, KNOW YOUR RIGHTS: A VICTIM'S GUIDE TO THE DOMESTIC VIOLENCE Jus­TICE SYSTEM 11.87 See OFFICE OF THE U.S. ArroRNEY FOR THE DISTRICT OF COLUMBIA, U.S. DEP'T OF Jus­TICE, KNOW YOUR RIGHTS: A VICTIM'S GUIDE TO THE DOMESTIC VIOLENCE JUSTICE SYSTEM 12.88 D.C. CODE ANN. § 16-1005 (e)(8) (2000).89 See OFFICE OF THE U.S. ArrORNEY FOR THE DISTRICT OF COLUMBIA, U.S. DEP'T OF Jus-TICE, KNOW YOUR RIGHTS: A VICTIM'S GUIDE TO THE DOMESTIC VIOLENCE JUSTICE SYSTEM 12.90 D.C. CODE ANN. § 16-1031(2000).91 D.C. CODE ANN. § 22-504 (2000).92 D.C. CODE ANN. § 16-1022 (2000).93 Epstein, supra note 38, at 14.94 Epstein, supra note 38, at 16.

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE 61have been filed against abusers in the District of Columbia, only the District candrop the criminal charges against the abusers.IV. FEDERAL GOVERNMENT'S RESPONSE To DOMESTIC VIOLENCEIn recent years, the federal government has responded to the increase of domesticviolence by enacting the Violence Against Women Act of 1994 ("VAWA1")95 and reauthorizing and strengthening the VAWA I, which is now commonlyreferred to as the VAWA of 2000 ("VAWA 11,,).96A. Violence Against Women Act of 1994VAWA I has profoundly improved the criminal justice response to domesticviolence. 97 Specifically, the VAWA I contained several acts which targeted domesticviolence, sexual assault, stalking, and gender- motivated violence. 98Among the acts were the Safe Streets for Women Act,99 the Safe Homes forWomen Act,l00 the Civil Rights Remedies for Gender-Motivated ViolenceAct,101 and the Equal Justice for Women in the Courts ACt. 102 Arguably, themost significant acts of the VAWA I were the Safe Streets for Women Act and theSafe Homes for Women Act.The Safe Streets for Women Act contained a number of criminal provisionsspecifically designed to deter domestic violence. For example, one provision ofthe Safe Streets for Women Act made it a federal crime for an abuser to crossstate lines with the intent to injure, harass, or intimidate an intimate partner if indoing so, the abuser intentionally commits a violent crime which causes an intimatepartner bodily harm. 103 Other provisions made it a federal crime for anabuser to cause an intimate partner to cross state lines through fraud, coercion,force, or duress if in doing so the abuser intentionally commits a violent crime95 Violence Against Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902 (1994).96 See Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1491 (2000).97 LA VIOLETIE & BARNETI, supra note 3, at 151.98 See The Urban Institute, The Violence Against Women Act of 1994: Evaluation of the STOPBlock Grants to Combat Violence Against Women, available at (highlighting a report prepared for the National Institute of Justice on the Violence Against WomenAct of 1994's STOP block grants)(last visited Feb. 28, 2001).99 Safe Streets for Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1903 (1994).100 Safe Homes for Women Act of 1994, Pub. L. No. 103-322, 108 Stat. 1925 (1994).101 Civil Rights Remedies for Gender-Motivated Violence Act, Pub. L. No. 103-322, 108 Stat.1941 (1994).102 Equal Justice for Women in the Courts Act of 1994, Pub. L. No. 103-322, 108 Stat. 1902,1942 (1994).103 18 U.S.c. § 2261(a) (1995), Violence Against Women Office, Summary of Criminal Provisionsof the Violence Against Women Act, available at (summarizing criminal provisions of the VAWA) (lasted visited Jan. 19,2001).

62 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWwhich causes an intimate partner bodily harm,104 or for a person to enter intoanother state with the intent to violate a protective order, 105 or the intent toinjure and harass and in doing so places an intimate partner in reasonable fear ofdeath or serious bodily harm. 106 Finally, another provision made it a federalcrime for an abuser to posses a firearm while subject to a protection order. 10 ?Conversely, the Safe Homes for Women Act consisted of several provisionsspecifically designed to further safeguard women from domestic violence, includingthe establishment of a National Domestic Violence Hotline,108 the additionof a faith and credit provision with respect to protective orders, and a provisionencouraging state arrest policies to handle domestic violence as a serious criminaloffense. 109 As an incentive, the Safe Homes for Women Act provided grantsto states for the purposes of implementing mandatory arrest policies, and developingpolicies and training in their police departments to promote the trackingdomestic violence cases. l1OThe Safe Homes for Women Act additionally provided grants over six yearsto battered women shelters, ordered the United States Postal Service to implementregulations to secure the confidentiality of domestic violence shelters anddomestic violence victims' addresses,111 and directed several federal agencies tocompile data and conduct research on domestic violence to increase the understandingand control of violence against women. 112Another commendable act of the VAWA I was the Civil Rights Remedies forGender-Motivated Violence Act ("Civil Rights Remedies Act") which created acivil rights cause of action for victims of gender-motivated crimes. 113 Congressessentially created a private right that allowed victims of gender-motivatedcrimes to seek damages from their abusers. Congress' stated purpose for enactingthe Civil Rights Remedies Act was to "protect the civil rights of victims ofgender-motivated violence and to promote public safety, health, and activities104 18 U.S.C. § 2262 (a}(2) (1995), Violence Against Women Office, Summary of Criminal Provisionsof the Violence Against Women Act, (last visited Jan. 19, 2001) .105 [d. at 18 U.S.c. § 2262 (a}(l).106 18 U.S.C. § 2261A (1995), Violence Against Women Office, Summary of Criminal Provisionsof the Violence Against Women Act, (last visited Jan. 19, 2001) .107 18 U.S.C. § 922 (g)(8) (1995), Violence Against Women Office, Summary of Criminal Provisionof the Violence Against Women Act, (last visited Jan. 19,2001) .108 Violence Against Women Act of 1994 , Pub. L. No.103-322, 108 Stat. 1902, 1925 (1994).109 [d. at 1932 (1994).110 [d.111 See id. at 1938.112 [d. at 1939. See also BUZAWA & BUZAWA, supra note 16, at 131.113 See Violence Against Women Act of 1994, Pub. L. 103-322, 108 Stat. 1941 (1994). See also42 U.S.C.S. § 13981 (2ooo).

AN EFFECTIVE RESPONSE TO DOMESTIC VIOLENCE 63affecting interstate commerce.,,114 Congress enacted the Civil Rights RemediesAct pursuant to its enforcement power under the U.S. Constitution, 14th Amendment,Section 5, and its power to regulate interstate commerce under Article I,Section 8, Clause 3. 115Subsequently, in May of 2000, the Supreme Court struck down the Civil RightsRemedies Act in U.S. v. Morrison, holding that Congress' efforts to afford a federalremedy to victims of gender-motivated cannot be upheld either under itscommerce power or its enforcement power. 116 More importantly, in Morrison,the Supreme Court did not entirely invalidate VAWA I but only the Civil RightsRemedies Act. Fortunately, since Morrison, the federal government has notbacked away from its commitment to control domestic violence. In fact, onlyseven months after the ruling in Morrison, the federal government reinforced itscommitment to domestic violence by reauthorizing and strengthening the VAWAI, which is now referred to as the VAWA 11.117B. Violence Against Women Act of 2000Arguably, the VAWA II, like VAWA I, promises to significantly improve thecriminal justice response to domestic violence because it retains several essentialgrant programs previously established by the VAWA, launches new programs,and reinforces federallaws. 118 For instance, the VAWA II now recognizes dateviolence as a crime. 119 The VAWA II also strengthens the full faith and creditprovision of the VAWA I by forbidding states from requiring notification to theabuser of the registration of an out-of-state protection order. 120 Further, theVAWA II expands the interstate stalking offense to include interstate cyberstalking.12I The VAWA II reauthorizes grants to reduce violent crimes against womenon campus and reauthorizes the shelter services for battered women and childrenprogram. 122 Finally, the VAWA II creates a new grant program to provide transitionalhousing for victims of domestic violence. l23114 42 U.S.C.S. § 13981 (2000).115 42 U.S.C.S. § 13981(a) (2000).116 United States v. Morrison, 120 S. Ct. 1740, 1759 (2000).117 See Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1491 (2000), (lastvisited Jan. 19, 2(01) ·118 See Violence Against Women Office, The Violence Against Women Act 0/2000, (last visitedApr. 4, 2(01) (summarizing the ViolenceAgainst Women Act 2000).119 Id.120 Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1494 (2000). See alsoViolence Against Women Office, The Violence Against Women Act 0/2000, (last visited Apr. 4, 2001).121 See Violence Against Women Office, The Violence Against Women Act 0/2000, available at (last visited Apr. 4, 2001).122 Id.123 See Violence Against Women Act of 2000, Pub. L. No. 106-386, 114 Stat. 1506 (2000).

64 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWv. A CRITICAL EXAMINATION OF THE DISTRlcr OF COLUMBIA'S RESPONSEOverall, the District of Columbia's and the federal government's responses todomestic violence appear somewhat practical since women experienced lowerrates of intimate partner violence in 1998 than in 1993. 124 The number of intimatepartner homicides has also decreased. l25 However, this does not changethe fact that every year 4.8 million women and 2.9 men are victimized by theirintimate partners. 126 Nor does it change the fact that 2 million women are injuredannually as a result of domestic violence. 127 More importantly, it does notchange the fact that most intimate partner victimizations are not unreported tothe police. l28 Thus, it is apparent that these notable responses have not effectivelyresolved the problem, and therefore, more aggressive advocacy is imperativein the new millennium. A critical examination of the District of Columbia'sresponse to domestic violence will explain why D.C. and jurisdictions with similarresponses have not effectively controlled domestic violence.A. Inability of the Police and the Courts to Detect and Deter UnreportedDomestic ViolenceThe underlying problem with the District of Columbia's response to domesticviolence is that D.C., like many other jurisdictions, makes a number of assumptionswith respect to domestic violence. For instance, jurisdictions assume thatmost domestic violence victims will seek protection from the police and otherdomestic violence resources, such as a specialized, integrated domestic violencecourt or a domestic violence intake center. However, this assumption ignores thesimple fact that most instances of domestic violence go unreported. 129 In fact, arecent survey revealed that only one fifth of all rapes, a quarter of all physicalassaults, and half of all stalkings committed against intimate partners are reportedto the police. 130 Therefore, it is illogical to believe that a specialized, integrateddomestic violence court and a domestic violence intake center are aneffective response to domestic violence if most intimate partner victimizations gounreported.124 See BUREAU OF JUSTICE STATISTICS SPECIAL REpORT, U.S. DEP'T OF JUSTICE, INTIMATEPARTNER VIOLENCE (2000).125 However, the number of intimate partner homicides for white women did not decrease. Infact, the number of intimate partner homicides for white women increased by 15% from 1997 to 1998.126 See Office of Justice Program, Nat'l Institute of Justice, U.S. Dep't of Justice, Extent, Nature,and Consequences of Intimate Partner Violence (2000).127 Id.128 Id.129 Id.130 Id.

AN EFFECTIVE RESPONSE TO DOMESTIC VIOLENCE 65B. Limitations of Civil Protection OrdersThe District of Columbia and jurisdictions with civil protection orders assumethat CPOs will minimize incidents of domestic violence. In fact, a number ofjurisdictions go as far as using criminal contempt sanctions in enforcing CPOS.131However, this assumption ignores the simple fact that CPOs have certain limitations:CPOs are generally at the discretion of judges and enforcement of CPOs,for the most part, is difficult. 132 Additionally, victims must initiate and seekCPOS,133 and CPOs will not likely deter hard-core recidivists. 134 A recent illustrationof the limitations of a CPO occurred just last year in the District of Columbiawhen a woman was viciously attacked by her ex-boyfriend after the courtsubjected him to a CPO.135Patricia Parker, a mother of three was harassed and stalked repeatedly by herex-boyfriend. After her ex-boyfriend stalked her and broke her apartment andcar windows, she sought a temporary protection order (TPO) from the courtagainst him. Subsequently, he was later charged with making the threats to her;however, the police were unable to locate him for two weeks to serve him withthe order. Finally, the police apprehended her ex-boyfriend on an unrelatedcharge and then they properly served him with the temporary protection order.The U.S. Attorney's Office made a request to the hearing commissioner to keepMs. Parker's ex-boyfriend in jail until his trial. Instead, the hearing commissionerdecided to send her ex-boyfriend to a halfway house. After reporting to the halfwayhouse, her ex-boyfriend attended a Civil Protective Order hearing where hewas ordered to stay 100 feet away from Ms. Parker for two years, and to not tocontact or harass Ms. Parker in any way.After the hearing, her ex-boyfriend failed to return to the halfway house and awarrant was issued for his arrest. The next day he called Ms. Parker and stated,"I got you. I got you." After receiving the phone call, Ms. Parker took everyconceivable step possible to protect herself and her children. Namely, sheprinted up fliers with her ex-boyfriend's picture and posted them in her neighborhood.She also contacted the police and informed them of places where her exboyfriendhad been seen by her associates. She even went as far as hiring a privateinvestigator to locate her ex-boyfriend. Six days after a warrant was issuedfor her ex-boyfriend's arrest, he approached Ms. Parker in the presence of herchildren and he stated to her, "I told you I was going to kill you." He threw abrick at her twice and after missing her, he punched her and stomped on her head131 See Epstein, supra note 38, at footnote 45.132 See BUZAWA & BUZAWA, supra note 16, at 193.133 [d.134 [d.135 David A. Fahrenthold, Woman Aids Capture of Her Alleged Abuser, THE WASHINGTONPOST, Oct. 27, 2000, at BOI.

66 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWwhich ultimately resulted in two broken bones under Ms. Parker's eye. After theattack, her ex-boyfriend fled and Ms. Parker was forced to go into hiding.Shortly thereafter, Ms. Parker spotted her ex-boyfriend and immediately contacted911. She and a friend proceeded to chase her ex-boyfriend with her vehicle.After Ms. Parker's friend apprehended her ex-boyfriend, the police arrivedand took him into to custody. Fortunately, for Ms. Parker, her story had a happyending; however, this is rarely the case for women who find themselves in a similarsituations. Clearly, Ms. Parker's story demonstrates that CPOs have irrefutablelimitations: Ms. Parker's CPO failed to deter her abuser who was provenhard-core recidivist,136 and the police were unable to effectively locate herabuser in order to enforce the CPO. Given the limitations of CPOs, it is seeminglyapparent that CPOs alone will not deter domestic violence.C. Adverse Effects of Mandatory Arrest StatutesThe District of Columbia assumes that mandatory arrest statutes will deterabusers and safeguard victims. 137 However, in reality, mandatory arrest statutesmay produce adverse effects with respect to domestic violence: Mandatory arreststatutes may not deter abusers at all, and in some cases mandatory arrest statutesmay heighten incidents of domestic violence.138 For instance, a fairly recentstudy from the National Institute of Justice 139 revealed that arrests increased violencewhere the abusers were unemployed and the victims were African Americans.140 Additionally, mandatory arrest statutes in many cases may deter victimsfrom reporting incidents of domestic violence to the police. 141 Finally,mandatory arrest statutes may invite arrests of battered women who fight backagainst their abusers. In fact, mandatory arrest statutes have resulted in a numberof arrests of battered women who defended themselves against their abus-136 Specifically, he had previously been incarcerated in the District of Columbia, Maryland, andVrrginia for shoplifting, assault, theft and domestic assault.137 Generally, mandatory arrest statutes eliminate police discretion in domestic violence casesand police officers are compelled by these statutes to make arrests if probable cause exists.138 See LA VIOLETTE & BARNEIT, supra note 3, at 57. See also U.S. DEP'T OF JUSTICE, OFFICEOF JUSTICE PROGRAMS, NAT'L INSTITUTE OF JUSTICE, LEGAL INTERVENTIONS IN FAMILY VIOLENCE:REsEARCH FINDINGS AND POLICY IMPLICATIONS 55 (1998) (discussing whether violence deter domesticviolence).139 The National Institute of Justice is a research agency within the Office of Justice Programwhich was established by the Omnibus Crime Control and Safe Streets Act of 1968. In recent years,the National Institute of Justice has expanded its initiatives to include new research and evaluation incommunity policing, violence against women, sentencing reforms, and specialized courts. Specifically,the National Institute of Justice investigates the causes, treatment, prevention of violence againstwomen and violence within the family.140 See U.S. DEP'T OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, NAT'L INSTITUTE OF JUSTICE,LEGAL INTERVENTIONS IN FAMILY VIOLENCE: RESEARCH FINDINGS AND POLICY IMPLICATIONS 55.141 See BUZAWA & BUZAWA, supra note 16, at 163.

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE 67ers.142 Nevertheless, mandatory arrest statutes are essential in shielding victimsfrom imminent violence. 143 Even so, mandatory arrest statutes will only protectvictims in the short run because eventually abusers will be arraigned and releasedback into mainstream society. Thus, it is relatively obvious that mandatory arreststatutes alone will not counteract the effects of domestic violence and may evenintensify violence in certain instances.D. Ineffectiveness of "No-Drop" PoliciesThe District of Columbia assumes that "no-drop" polices will prevent abusersfrom controlling the criminal justice system by pressuring their victims into dismissingthe charges against them. l44 That is, abusers will not be able to discouragevictims into dropping criminal charges against them because the statebecomes the victim in a "no-drop" policy jurisdiction. 145 However, this assumptionfails to take into account the fact that cases may be dismissed against abusersanyway for want of prosecution because victims may be reluctant to testifyagainst their abusers. For instance, just last year I sat in one of the District ofColumbia's criminal domestic violence courtrooms and observed a judge dismissa case against an abuser for want of prosecution because the prosecutor's keywitness, the victim, failed to show up to testify against her abuser. Furthermore,even if a victim does testify, there is no guarantee that a judge in a jurisdictionwith a "no-drop" policy would find the victim's testimony convincing. 146 Finally,this assumption ignores the fact that victims may be reluctant to report instancesof domestic violence in "no-drop" policy jurisdictions because it may make themfeel as that "they have lost control of the process.,,147 Thus, it is seemingly apparentthat "no-drop" policies alone will not deter domestic violence.In short, after one takes a critical examination of these efforts as a whole orotherwise, two things are certain: these efforts have not effectively controlled domesticviolence, and more aggressive advocacy is necessary to combat domesticviolence.VI.AN EFFEcnVE RESPONSE To DOMESTIC VIOLENCEGiven the serious nature of domestic violence and the fact that no responsethus far has effectively deterred domestic violence, the District of Columbia and142 LAVIOLETTE & BARNETf, supra note 3, at 57.143 See Dennis P. Saccuzzo, How Should the Police Respond to Domestic Violence: A TherapeuticJurisprudence Analysis of Mandatory Arrest, 39 SANTA CLARA L. REv. 765, 776 (1999) (discussingarguments in favor of mandatory arrest of domestic violence Offenders).144 Epstein, supra note 38, at 16.145 See Kalyani Robbins, No-Drop Prosecution of Domestic Violence: Just Good Policy, orEqual Protection Mandate?, 52 STAN. L. REV. 205, 216 (1999).146 See BUZAWA & BUZAWA, supra note 16, at 179.147 Id.

68 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWother jurisdictions should consider adopting a more aggressive and effective approachto domestic violence, that is, mandatory minimum sentences coupled withmulti-facet interventions.A. Mandatory Minimum Sentences for AbusersMandatory minimum sentences are statutory provisions which "require judgesto impose a specified minimum prison term if an offense meets certain statutorycriteria.,,148 Mandatory minimum sentences eliminate judicial discretion with respectto sentencing offenders.Since 1970, mandatory minimum sentences have received a great deal of opposition.149 Many judges are opposed to mandatory minimum sentences becausethey do not allow judges to use their discretion in sentencing. ISO Other opponentsargue that mandatory minimum sentences undermine the intended purposessuch as deterrence, reduced disparity, and just punishment becauseprosecutors can use these sentences as bargaining toolS. 151 Additionally, someopponents contend that mandatory minimum sentences are unjustly severe. 1S2In the context of domestic violence cases, these arguments have no merit.First, most of the opposition to mandatory minimum sentences arise in the contextof federal drug cases, not domestic violence cases. IS3 In fact, there has beenlittle or no advocacy for mandatory minimum sentences for domestic violenceoffenders. Secondly, eliminating judicial discretion in domestic cases may bebeneficial. For instance, Ms. Parker, arguably, would not have been violently attackedby her abuser if the hearing commissioner would have honored the prosecutor'srequest to incarcerate her abuser instead of sending him to halfway house.Thirdly, it is illogical to believe that prosecutors will use mandatory minimumsentences as bargaining tools in domestic violence cases because a number ofjurisdictions have adopted "no-drop" policies.Finally, mandatory sentences are not unjustly severe with respect to domesticviolence abusers because, arguably, the terms "prisoner" and "victim" of intimatepartner violence are synonymous. For, instance, the prison experience has beendefined by one author as the following:148 See Book Note, Determinative Sentencing and Judicial Participation in Democratic Punishment,108 fuRV. L. REV. 947 (1995) (reviewing LOIs G. FORER, A RAGE TO PUNISH: THE UNIN.TENDED CONSEQUENCES OF MANDATORY SENTENCING (1994».149 Id.; See also Julia Stewart, Sentencing Law Symposium: The Effects of Mandatory Minimumson Families and Society, 16 T.M. COOLEY L. REV. 37 (1999); Phillip Oliss, Mandatory MinimumSentencing: Discretion, the Safety Valve, and the Sentencing Guidelines, 63 U. CIN. L. REV. 1851(1995).150 See Book Note, supra note 148, at 947.151 See Oliss, supra note 149, at 1851.152 Id. at 1851.153 See Book Note, supra note 148 at 947; Oliss, supra note 151, at 1851; Stewart, supra note151, at 37.

AN EFFECfIVE RESPONSE TO DOMESTIC VIOLENCE69Prison is often a violent and stressful place. You will suffer blows to yourdignity, such as . . . indifference, threats and you will be treated as if youdon't have enough sense to blow your nose without being told. You will betold when to sleep, when to rise, when to eat, and what to wear. All of thethings that you took for granted are now privileges and subject to suspension.You must prepare your mind to deal with these things. You must notresist or refuse, this makes you appear a trouble maker. . .154A victim of intimate partner violence is nothing more than a prisoner of herabuser. For instance, an abuser subjects his victim to a violent and stressful environmentfilled with constant abuse, fear, and intimidation. In addition to receivingblows to her dignity, she also receives blows to her head and face. In additionto being told when to sleep and rise, she is also told that she is worthless. If sheresists or refuse her abuser, she is beaten. Therefore, it is only fair and just thatabusers are subjected to the same punishment that they inflict on their victims.More importantly, mandatory minimum sentences serves three important purposeswith respect to domestic violence cases: mandatory minimum sentences willdeter domestic violence because they eliminate options once available to abusers,namely suspended sentences, halfway houses, and probation and leaves abuserswith only one option, that is, prison. With only one option available, abusers willthink twice about abusing their intimate partners.Mandatory sentences will also encourage victims to report incidents of domesticviolence. For instance, a recent study revealed that most victims do not reportincidents of domestic violence because they believe that "the police would not orcould not do anything on their behalf.155 If victims had assurances likemandatory minimum sentences, they would feel more compelled to report incidentsof violence because police involvement would automatically triggermandatory minimum sentences.Most importantly, mandatory minimum sentences can save lives. If abusersare incapacitated for an extended period of time, they are not in a position wherethey can readily physically hurt their victims. That is, once an abuser is brought tothe attention of the judicial system, that abuser will be subjected to the minimummandatory sentence. For example, if Maryland had adopted a mandatory minimumsentence with respect to domestic violence prior to 2000, arguably, JaniceLancaster would be alive today. Thus, jurisdictions should consider adoptingmandatory minimum sentence with respect to domestic violence becausemandatory minimum sentences save lives.154 See Edward Charles, Prison 101: What You Need to Know Before You go to Prison, availableat (last visited Apr. 4, 2001).155 Office of Justice Program, supra note 126.

70 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWB. Multi-Facet InterventionsIn addition to adopting mandatory minimum sentences with respect to domesticviolence cases, jurisdictions must also adopt a number of multi-facet interventionsif they want to effectively respond to the increase in domestic violence.Multi-facet interventions in the context of domestic violence consist of a numberof services and programs for victims and abusers.1. Job Placement and Mentor Programs for VictimsAs previously noted, low income is one of the risk factors associated with domesticviolence. Generally, women with lower incomes are exposed to more violencethan women with higher incomes. 156 Unfortunately, when women withlittle or no incomes abandon their abusive relationships, they become more susceptibleto poverty and homelessness. 157 Therefore, jurisdictions should considerimplementing job placement programs specifically designed to prevent victimsfrom finding themselves in situations where they feel compelled to return to theirabusers. In conjunction with job placement programs, jurisdictions should implementmentor programs specifically designed for abused women. Mentors canprovide abused women with guidance, support, strength and encouragement.2. Batterer Treatment and Mentor Programs for AbusersCertainly incarceration alone will not alleviate violence among intimate partners.Battering is learned behavior that has to be unlearned. Abusers have tounderstand why battering is wrong. Further, they must learn to use nonviolentstrategies in dealing with any intense situation that they may encounter whenconfronting their intimate partners. Thus, jurisdictions should implement batterertreatment programs 158 in the community, prisons, and jails. In the Districtof Columbia, a number of abusers are required by the court to undergo a courtmonitoredbatterer treatment program. However, the District does not provideany free services to batterers who voluntarily want to participate in these programs.In other words, an abuser who has not been identified in the court systemwill not have free access to these services. Thus, jurisdictions should considerimplementing free batterer treatment programs to the entire community. Finallyjurisdictions should implement mentor programs for abusers. Mentors can serveas role models and further educate abusers about the evils of abuse.156 Specifically, between 1993-1998, women with annual incomes of less than $7,500 were victimizedat a rate of about seven times higher than that of women with annual incomes of $75,000 orbetter.157 LA VIOLElTE & BARNElT, supra note 3, at 40.158 See OFFICE OF JUSTICE PROGRAM, NAT'L INSTITUTE OF JUSTICE, U.S. DEP'T OF JUSTICE,BAlTERER INTERVENTIONS: PROGRAM ApPROACHES AND CRIMINAL JUSTICE STRATEGIES (1998)(provides a thorough discussion of current trends in batterer intervention programs).

AN EFFECTIVE RESPONSE TO DOMESTIC VIOLENCE 713. Educating Legal Community about the FactsThe American Bar Association ("ABA") believes that the legal professionplays a significant part developing and implementing coordinated community responsesto domestic violence. 159 Further, the ABA strongly recommends lawschools to consider implementing domestic violence law into their curricula. 160The ABA maintains that by doing so, law schools will produce more competentattorneys for victims and overall improve the legal system response to domesticviolence. 161 Indeed, the ABA is correct because education will help to eliminatethe myths associated with domestic violence before they have an opportunity todistort the minds of aspiring legal professionals. For instance, some legal professionalsbelieve that victims can alleviate violence by leaving their abusers. However,studies show that victims who leave their batterer increase their chances ofbeing victimized.Further, some legal professionals believe that African American women aremore likely to be killed by their intimate partners, but studies show that whitewomen are more likely to killed by their intimate partners. Finally, some legalprofessionals believe that domestic violence only occurs among people with lowerincomes, but it is evident that domestic violence is present at all income levels.Having an understanding of these facts will certainly assist legal professionals ineffectively respond to domestic violence. For example, they will not view domesticviolence as a "black thing" or "white" thing but as societal epidemic that mustbe treated. Therefore, it is essential for law schools to implement domestic violencelaw in their curricula.4. Increase Support to Domestic Violence Shelters"There are nearly three times as many animal shelters in the United States asthere are shelters for battered women and their children.,,162 This fact appears toindicate that the lives of animals are valued more than the lives of abused womenand children. Many of these shelters for battered women were created by privateindividuals using their own resources. These shelters provide abused women andtheir children with a number of services, such as shelter, clothes, food, and counseling.In many instances, shelters have to turn away abused women becausethey simply do not have enough beds or space to house them. Battered women159 Specifically, law schools prepare prosecutors, defense attorneys, family law attorneys, generalpractitioners, business leaders, legislators, lobbyists, and judges for their respective roles in oursociety.160 See COMM'N ON DOMESTIC VIOLENCE, AMERICAN BAR ASSOCIATION, WHEN WILL THEYLEARN? EDUCATING TO END DOMESTIC VIOLENCE (1998).161 [d.162 See Feminist Majority Foundation, Facts About Domestic Violence in the United States,available at (last visited Apr. 4, 2001).

72 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWshelters across the country desperately need funding and volunteers. Therefore,it is imperative that jurisdictions increase their support to these shelters.CONCLUSIONIn sum, domestic violence among intimate partners is a serious societal epidemicthat must be eliminated at all costs. There can be no "three strikes" withrespect to abusers in the new millennium because there is no guarantee that victimswill survive a second or third strike.

THE ROLE OF DISCRIMINATION AND DRUG POLICY INEXCESSIVE INCARCERATION IN THE UNITED STATESSteven J. Boretos*INTRODUcnONUnited States prisons now hold more people in confinement than ever beforein the history of any country in the world. An analysis of this situation revealsthat racial discrimination and public policies, such as the "war on drugs," "gettingtough on crime" and "zero tolerance" are to blame, resulting in government-wideviolations of individual rights. Moreover, the United States has the most racistprison system in the world. This has had a devastating impact on our society.Lives have been shattered and resources have been squandered by such policies."Nationally, for every one black man who graduate[s] from college, 100 are arrested."tWhile it has become increasingly popular to express outrage towardcrime, we cannot allow public opinion to become distorted while we blindly askfor tougher laws, without knowing whether we are already "too tough" or raciallybiased. To do so is to invite injustice and tyranny. In the words of Thomas Jefferson,"the price of freedom is eternal vigilance.,,2This paper examines the reality of excessive incarceration and compares itwith widely publicized claims that the United States is lax in punishing criminals.To what extent does incarceration victimize particular classes of individuals, suchas blacks and drug offenders? Have we become tired of attempts to implementrehabilitation and social programs to reduce incarceration? What is the purposeof locking up non-violent offenders?I. IDENTIFYING THE PROBLEMA. Effectiveness of Criminal Punishment in the United StatesWe, the people, collectively influence what laws are enacted and ultimatelywho gets arrested and imprisoned. Consequently, we are all collectively responsiblefor the size and racial make-up of our prisons. It sounds great to "get toughon crime," but in the United States, we are already too tough? The UnitedStates is not lenient with criminals; it has the highest imprisonment rate of any* Steven J. Boretos, J.D., The University of the District of Columbia David A. Clasrke Schoolof Law.1 DAVID COLE, No EQUAL JUSTICE, RACE AND CLASS IN THE AMERICAN CRIMINAL JUSTICESYSTEM 5 (1999) (citing Henry Louis Gales, Jr., The Charmer, NEW YORKER Apr. 29-May 6,1996, at116).2 Thomas Jefferson, Famous Quotations, .3 ELLIOTT CURRIE, CRIME AND PUNISHMENT IN AMERICA 7 (1998).

74 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWdeveloped country in the world. 4 The U.S. locks up its citizens "at rates five tofifteen times higher than those in other Western countries.,,5 This trend has beensteadily increasing for years while "the American incarceration rate roughly quadrupled- that is, rose by approximately 300 percent - from the early 1970s tothe mid-1990s. Between 1968 and 1987, the imprisonment rate rose by [only] 45percent in England and Wales, 34 percent in France, and 16 percent in theNetherlands. Incarceration rates decreased in other European countries. Ratesfell in Western Germany by about 4 percent and in Sweden by a remarkable 26percent.,,6 Clearly, there is a gap between talk of American "leniency" and leniencyas it exists in Europe.The criminal justice system in the United States is frequently criticized for beingineffective in stopping crime. Politicians say that "only 1 in 100 violent crimesresult in a prison sentence.,,7 Careful analysis of the data, however, shows thisstatement to be completely misleading. According to the Council on Crime inAmerica, out of over 10 million violent crimes complained of in their 1992 survey,only 4 million were reported to police. Of these, only 641,000 led to an arrest. sFor every 1,000 felony arrests, brought by the police for prosecution, only 550 arecarried forward as legally sufficient. 9 Of these, typically 520 defendants pleadguilty, so that only 30 ever go to tria1. 10 In 1994, nine out of ten defendantsconvicted of either felony robbery or rape were incarcerated. 11 Therefore, thegovernment has enough evidence to go to trial, no less than 468 out of every 520criminal defendants are incarcerated. Such a high rate of incarceration showsthat, indeed, the United States is far more effective in incarcerating its citizensthan many believe.B. Discriminatory Impact in Prosecution"The War on Drugs," "Getting Tough On Crime," and "Zero Tolerance" policieswere designed for the general welfare of society, but have done more harmthan good. These policies, as applied, have encouraged sweeping police crackdowns,mostly targeted at minorities. 12 "In the District of Columbia in 1997,nearly 50 percent of young black men between the ages of eighteen and thirty-4 [d. at 38.5 MICHAEL TONRY, MALIGN NEGLEcr: RACE, CRIME AND PUNISHMENT IN AMERICA 197(1995).6 CURRIE, supra note 3, at 15-16.7 [d. at 40.8 Id. at 40-41.9 HOWARD ABADINSKY, LAW & JUSTICE, AN INTRODUcrION TO THE AMERICAN LEGAL Sys.TEM 299 (reprinted 1993) (1991).10 Id.11 CURRIE, supra note 3, at 43.12 COLE, supra note 1, at 144 -145 (citing Dep't of Justice, Bureau of Justice Statistics Bulletin,Prisoners in 1994, 10 (1995»; see also ACLU, Arrest the Racism, Racial Profiling in America I ("Today

THE ROLE OF DISCRIMINATION 75five were under criminal justice supervision. ,,13 This is not to say that blacks areany more prone to crime than whites, or any other group of people. In fact, justthe opposite is true. "[T]wenty-four percent of white 12th graders reported illicitdrug use in 1995, compared to 18 percent of blacks and 21 percent of HispaniCS.,,14It is simply that blacks are prosecuted more vigorously. "[Blacks] servelonger sentences, have higher arrest and conviction rates, face higher bailamounts, and are more often the victims of police use of deadly force than whitecitizens.,,1sC. Prosecution of Victimless CrimeAnother sign of the times is that the vast number of those who have beenincarcerated never hurt anyone, except, perhaps, themselves; they were convictedof consensual activities, including drugs or sex and have been incarcerated foroffending society's moral standards. Regardless how altruistic the motive, theresult has been a national disgrace, and a burden upon our people. It is no longerappropriate to incarcerate anyone for their own good, because "[i]mprisonment,as it exists today, is a worse crime [of society upon the individual] than any ofthose [victimless offenses] committed by [the individual upon themselves].,,16Likewise, as a free country, we must refrain from imposing our moral standardsupon the private affairs of others.Ironically, public safety has suffered from these crackdowns. Prisons, unableto keep up with the influx of people, are forced to release violent criminals tomake room for minor drug offenders, and the like. The "War on Drugs" has notonly created a problem with violence, but has created a social problem so largethat the U.S. may not be able to win this "war" with anything less than marshallaw. "Since the latest war on drugs began in 1982, the nation's [overall] prisonpopulation more than doubled [by 1994]. Not only does the United States nowhold 2 million people behind bars-a higher proportion of our adult populationskin color makes you a suspect in America. It makes you more likely to be stopped, more likely to besearched, and more likely to be arrested and imprisoned ... "), .13 COLE, supra note 1, at 141(citing Cheryl W. Thompson, Young Blacks Entangled in LegalSystem; Report Puis D.C. Rate At 50% of Men 18 to 35 WASH. POST, Aug. 26, 1997, at B-1).14 Federal Interagency Forum on Child and Family Statistics, America's Children: Key NationalIndicators of Well-Being 37 (1997), at Centers for Disease Control and Prevention, (updated Oct. 22,2000) .15 COLE, supra note 1, at 4 (citing BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMINALJUSTICE STATISTICS - 1995, 40S, 471, 474 (1996» (indicating that, "the average sentence imposed onblack offenders sentenced to incarceration in U.S. district courts in 1992 was 84.1 months, while theaverage sentence for white offenders was 56.S months ... [second,] although they are only 12 percentof the popUlation, blacks make up 31.3 percent of those arrested ... [third,] among convicted offenders,SO percent of black defendants and 75 percent of whites are sentenced to incarceration").16 PETER MCWILLIAMS, AIN'T NOBODY'S BUSINESS IF You Do, THE ABSURDITY OF CONSEN.SUAL CRIMES IN OUR FREE COUNTRY 176 (1996) (quoting 20th century writer George BernardShaw).

76 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWthan in any other nation," but we also have the "highest rate of incarceration inthe world,,,17 which means that greater and greater percentages of the generalpopulation are finding themselves behind bars.In 1972, "600,000 people were being arrested each year on marijuana charges,most for simple possession.,,18 By 1993, annual arrests doubled. 19 State law enforcementauthorities handle most drug arrests and imprison the majority of drugoffenders. Of 1,028,800 persons incarcerated in state prisons in 1996, the mostserious crime that 234,100 of them ever committed was a drug offense. 2o Indeed,over 25% of our prison population is comprised of victimless or self-victimizedcriminals.Other victimless criminals include moral offenders, such as consenting adultswho had the "wrong kind of sex" with each other, adult pornography offenses,and assisted suicide. 21 Of the overall 15 million arrests each year, between 4 - 6million people are arrested for committing consensual activities. 22 America canno longer afford to be so draconian with respect to consensual behavior. It is atremendous waste of social resources. To the extent that many of these individualsnever harmed anyone else, it is un-American to hunt them down and incarceratethem. They are nothing more than political prisoners.D. ANALYSISA. Discriminatory Impact in Prosecution of Victimless CrimeEven if we assume that the police have facially neutral law enforcement practices,statistics show a significantly discriminatory impact:1. "In 1992, the United States Public Health Service estimated, based onself-report surveys, that 76 percent of illicit drug users were white, 14percent black, and 8 percent Hispanic-figures which roughly matcheach group's share of the general population.,,23 "Yet African Ameri-17 Eric Schlosser, Marijuana and the Law; Part 2,274 THE ATLANTIC MONTHLY, No.3, 84, 84-95 (Sept. 1994), reprinted inDRUGS, SOCIETY AND BEHAVIOR 1996-1997, 202 (Hugh T. Wilson, ed.1996).18 Jacob Sullum, Selling Pot: The Pitfalls of Marijuana Reform, 25 REASON, No.2, 20 (Jun.1993) reprinted inDRUGS, SOCIETY AND BEHAVIOR 1996-1997, 71 (Hugh T. Wilson, ed. 1996).19 Steven Wisotsky, A Society of Suspects: The War on Drugs and Civil Liberties, 122 USATODAY, No. 2578,17,17-21 (Jul. 1993), reprinted in DRUGS, SOCIETY AND BEHAVIOR 1996-1997, 155(Hugh T. Wilson, ed. 1996).20 U.S. Department of Justice Bureau of Justice Statistics, Selected Statistics, Prison populationby offense type, 1980-96, (last visited Sept. 03,2000) .21 MCWILLIAMS, supra note 16, at 631-632.22 ld at 151.23 COLE, supra note I, at 144, (citing JEROME G. MILLER, SEARCH AND DESTROY: AFRICANAMERICAN MALES IN THE CRIMINAL JUSTICE SYSTEM 81 (1996»; cf. Center for Disease Control,Table II. Estimated Total Population by Race (1999), NATIONAL VITAL STATISTICS REPORT, Vol. 49,No. 1,93 (Apr. 17,2001) (finding that on July 1, 1999 the United States population was comprised of

THE ROLE OF DISCRIMINATION77cans make up 35 percent of all drug arrests, 55 percent of all drug convictions,and 74 percent of all sentences for drug offenses.,,242. On the East Coast, "[a] study done by a committee of the MonroeCounty (Rochester, New York) Bar Association revealed that, althoughdrug use among ethnic and racial groups was roughly proportionate totheir percentages in the general population, African-Americans werebeing arrested at 18 times the rate of whites. However, 750/0 of thosewho were afforded the few drug-treatment slots available werewhite.,,253. Author David Cole researched pretextual stops in federal cases, roughlybetween 1992 and 1996, and discovered that "80 percent of the stopsinvolved minority drivers. ,,26A difference can be seen where you do not have the state going out and initiatingprosecution. For example, accidents caused by drunk driving are well-documentedand are not subject to selective enforcement. Here, "89% of thosearrested were white, only 9% black. ,,27 In fact, less blacks were arrested, percapita, than whites?8 Yet, with drug enforcement, three times as many blacks,per capita, are arrested than whites. 29 This shows that although each race hasroughly the same proportion of drug use, when the state seeks to increase itsnumber of drug arrests, it seeks out African Americans more often thanCaucsasians.In 1994, the U.S. Justice Department (DOJ) was delegated authority fromCongress "to investigate local police departments to see whether there is a 'patternor practice' of excessive force or misconduct." The police department ofPrince George's County, Maryland is among 14 police agencies nationwide nowunder DOJ investigation for repeated use of "excessive force and racial discrimination.,,30 Four Los Angeles Police officers are currently on trial "for allegedly224,610,797 White persons and 34,862,169 Black persons. The United States population on that datewas approximately 15.5% black), .24 Id. (citing MARC MAUER and TRACY HULING, THE SENTENCING PROJECI', YOUNG BLACKAMERICANS AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 12 (1995».25 MILLER, supra note 23, at 83-84 (citing MONROE COUNTY BAR ASSOCIATION, JUSTICE INJEOPARDY (May 1992) (a report to Monroe County Bar Association Board of Trustees»; See alsoSomini Sengupta, In New York, Millions Pile Up While Welfare Programs Wait, N.Y TIMES, May 5,2001, New York Region (explaining that while New York is leading the way in drug treatment, theycould be doing much more. As recent as last summer, New York reports that "[o]f the $66 million setaside to provide drug screening and treatment for addicts, roughly $12.5 million was spent.")26 COLE, supra note 1, at 40.27 MCWILLIAMS, supra note 16, at 243.28 National Vital Statistics Report, supra note 23.29 MCWILLIAMS, supra note 16, at 243.30 Craig Whitlock and Jamie Stockwell, U.S. to Probe Pro George's Police Force; Justice DepartmentPlans Civil Rights Investigation, WASH. POST, Nov. 2, 2000, at AI, AI0.

78 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWframing innocent people. ,,31 Such practice may be indicative of well-intentionedlaw enforcement officials who feel they simply cannot wait for the "wheels ofjustice" to turn. This misguided vigilantism demands conviction on circumstantialevidence, which may include as little as whether the suspect was black andwhether the suspect was physically close enough to the scene of the crime to havedone it. But just because a person appears guilty does not mean that this is true.This is why we have a court system in the first place; to dispense with the proceduralsafeguards of our legal system is to throw out all the fairness it is supposedto secure. We cannot allow justice to be dispensed on the street.B. The Impact of Prosecution on American FreedomAnother evil specter appeared when Congress quashed District of Columbiavotes to legalize marijuana for medical purposes. 32 In a country that is supposedto symbolize democracy in the free world, it is shocking that the U.S. Congresswould deliberately throw out a free election. Their purpose? The end justifiesthe means in the increasingly powerful "War on Drugs." On November 3, 1998,Alaska, Arizona, Nevada, Oregon, Washington State and the District of Columbialegalized, by referendum, marijuana for medical use. 33 However, in the caseof the District of Columbia, conservatives in Congress stepped in and "stole" theballots. It was not until ten months later, after a September 17, 1999 federal courtorder, that Congress released the election results. 34 Not only do the voters inthese jurisdictions disagree with the ban on marijuana for medical use, extremelylarge numbers of people are not following this law. In the words of the late VicePresident, Hubert H.Humphrey on what the government's role should be inserving the people, "there are not enough jails, not enough policemen, notenough courts to enforce a law not supported by the people. ,,35 As a republic, arepresentative democracy, the government should listen to and heed the will ofthe people. To do otherwise is to enslave the masses under a dictatorship oftyranny.The right to free elections is not the only constitutional right that has beencompromised since Congress implemented "The War on Drugs." As Dan Baumobserved, "The Supreme Court is steadily eroding the protections against policeexcess promised by the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments31 Rene Sanchez and William Booth, A Party, a Death and New Anger at the LAPD, WASH.POST, Oct. 31, 2000, at A3.32 James Brooke, The 1998 Elections: The States - Drug Policy; 5 States Vote Medical Use OfMarijuana, N.Y. TIMES, Nov. 5,1998, at B-to.33 ld.34 Bill Miller, Marijuana Vote To Be Released; Judge Unlocks D.C. Election Tally, WASH. POST,Sept. 18, 1999, at B-1; See also Vanessa Williams, A Tax Break For Retirees? Other Bills Introduced toCouncil Include Legal Marijuana Measure, WASH. POST, Sept. 30, 1999, at J-1.35 MCWILLIAMS, supra note 16, at 210.

THE ROLE OF DISCRIMINATION 79to the Constitution.,,36 Courts have allowed the DEA to subpoena criminal defenselawyers, and threaten them with contempt if they do not testify against theirclients in violation of the lawyer-client privilege. 37 Courts have also allowed theDEA to pose as criminal defense lawyers, in order for the DEA to negotiate theirway into joint defense groups and learn client secrets. 38Courts have condoned numerous attacks on the general populace: drug testingin the workplace; wiretapping; outside surveillance devices that enhance a policeofficer's ability to see and hear what goes on inside people's homes; road blocksand targeted stopping of cars for close visual inspections and canine searches. 39All of these probative techniques violate privacy and are used in conjunction withDEA black lists to target certain individuals for harassment and prosecution. 40The problem with victimless crimes, is that no one complains about them. Therefore,it is virtually impossible to enforce these laws without encroaching upon orviolating the Constitution. As a result, courts have permitted police previouslyunimaginable exceptions to constraints against violations of an individual's Constitutionalrights. This trend continues, as "Congress is yet again considering [another]assault on our civil liberties in the name of the 'war on drugs.' This latestattack ... includes several challenges to our rights of free speech, privacy and dueprocess.,,41 We must not continue allowing ourselves to believe that effective lawenforcement overrides an individual's Constitutional rights, lest we lose our individualrights altogether. This belief is expressed through this quote:"When they took the fourth amendment, I was quiet because I didn't dealdrugs. When they took the sixth amendment, I was quiet because I wasinnocent. When they took the second amendment, I was quiet because Ididn't own a gun. Now they've taken the first amendment, and I can saynothing about it. ,,42Society cannot forget Thomas Jefferson's warning either: "[t]hose who desireto give up freedom in order to gain security, will not have, nor do they deserve,either one,,,43 and let us not forget that "[t]hose who do not remember history36 David B. Kopel, Policy Analysis, Prison Blues: How America's Foolish Sentencing PoliciesEndanger Public Safety, No. 208, available at http://www.cato.org/pubslpaslpa-208.html (released May17, 1994).37 Wisotsky, supra note 19.38 Id.39 Id.40 Id.41 ACLU, ACLU and Drug Policy Files ("The ACLU has opposed the outright criminalizationof drugs since 1968, believing that the best way to deal with drugs is regulation, not incarceration"),.42 Quotes, Facts, jokes, and bumper stickers, (last visited Feb. 21, 2001) .43 Voices Of America - Not For Profit Non Partisan Information Site Returns Power to You, (lastvisited Feb. 21,2001) .

80 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWare condemned to repeat it. ,,44 We are faced with a government that is becomingincreasingly powerful and we must not allow it to operate without restraint.Originally, Congress sought to make street drugs illegal in the interest of promotingthe greatest good for the greatest number of people. 45 It was assumedthat anyone who used street drugs was a drug addict and incapable of decidingwhat was. best for themselves. Logically, drug offenders seemed to need stateintervention. This was an act of charity. However, politicians did not want it toappear that they were rewarding drug users for breaking the law, so instead ofreceiving treatment, drug users were incarcerated. Drug users (and abusers) becamevictims of injustice. They felt that the law was unfair, so they rebelledagainst it. As prosecution escalated, police and other authority figures were metwith violence from the drug community. Within the drug community, territorialdisputes and debt collections could no longer be resolved by legal means, due tothe illegal nature of drug transactions. The result was more violence. 46 Innocentcitizens were also endangered as the "War on Drugs," as it is euphemisticallycalled, became a war on people. Its casualties of, "epidemic infection, corruption,torture, murder and incarceration" far exceeded the speculated casualties fromdrug abuse. 47 Additionally, the high cost of street drugs on the U.S. black marketcaused many thousands of drug abusers to turn to crime in order to pay for theirhabits. "If drugs were legalized and regulated, no drug user, even the most severelyaddicted, would have to spend more than $5 per day on drugs. As it isnow, some people have $200, $300, $400 daily habits.,,48 The "War on Drugs" byits very nature, is causing the crime it purports to prevent.The military has now joined forces with the police to use their combined resourcesagainst U.S. citizens suspected of drug involvement. In the process, innocentcitizens have also been stripped of their rights. "By 1988, in the spirit of'Zero Tolerance', federal law permitted, without even a semblance of due process,drug enforcement agents to seize boats, cars and planes that contained eventraces of marijuana,,,49 the most harmless of street drugs. Yet, "[e]ven with multibillion-dollarfunding and full military power, the United States has not been44 George Santayana, Quotations from the Founding Fathers and Other Notable Personalities,(last visited Feb 21, 2001) .45 William London, Will Legalizing Drugs Benefit Public Health? (Yes), 7 PRIORITIES, No.2, at24 (1995), reprinted in DRUGS, SOCIETY AND BEHAVIOR 1996-1997, 231, 232 (Hugh T. Wilson, ed.1996).46 Elliott Currie, Toward a Policy on Drugs, DISSENT 65-71 (Winter 1993), excerpted from ELLI­OTT CURRIE, RECKONING: DRUGS, THE CITIES, AND THE AMERICAN FUTURE (1993), reprinted inDRUGS, SOCIETY AND BEHAVIOR 1996-1997,216-217 (Hugh T. Wilson, ed. 1996).47 London, supra note 45.48 MCWILLIAMS, supra note 16, at 196.49 Wisotsky, supra note 19; see also London, supra note 45.

THE ROLE OF DISCRIMINATION 81able to intercept more than 1 percent of the illegal drugs coming into thecountry. ,,50C. Minimum Sentencing Guidelines Are UnjustAnother measure Congress took to cope with the "War on Drugs," was toenact the Minimum Sentencing Guidelines. "Mandatory-minimum sentences,based on the amount of drugs involved in an offense, were set at five years, tenyears, and twenty years. Additional mandatory minimums were added later, includingwhat is now known as a 'three strikes, you're out' provision that specifiedlife sentences for repeat drug offenders. ,,51 The Guidelines were enacted to preventcivil activist judges, like "let-'em-Ioose Bruce," in New York,52 from administeringlenient sentences to drug offenders, who Congress wanted topunish,53 but were otherwise nonviolent and posed no real threat to society.54The Guidelines removed judicial discretion, and replaced it with unfair and cruelsentencing requirements. 55 For example, a mother of four, on welfare, was paid$52 to send a package in the mail, which she later discovered contained crack. AU.S. District Judge for the State of California, Richard A. Gadbois, was forced tosentence her to a mandatory lO-year prison term under the Guidelines. 56 Individualcircumstances must be taken into consideration in sentencing. This is oneof the functions a judge must provide.1. Minimum Sentencing Guidelines Increase Violent CrimeAnother one of the biggest problems with the Guidelines is that it is forcingviolent offenders back out on the streets early. There are, as there should be,mandatory caps on prison populations. 57 The problem is how the Guidelines interactwith violent offenders that have already been incarcerated without minimumsentences. As prison popUlations grow, the government must releaseknown violent felons early to keep non-violent drug offenders in prison in compliancewith the mandatory caps on prison populations. This adds to the numberof violent felons present in each community, increasing the overall potential forviolent acts to the general public. 5850 Barbara Dority, The U.S. Criminal Injustice System; A 'Frontline' Program Brings ForthComments On The Criminal Justice System In The US, THE HUMANIST, May 1, 2000, at 33.51 Schlosser, supra note 17.52 Steven Fishner, Truth Police: Criminals on Parole, The O'Reilly Factor, Jun. 29,2000 (a FoxNews Network transcript).53 Id.54 Wisotsky, supra note 19.55 Id.56 MCWILLIAMS, supra note 16, at 244.57 Wisotsky, supra note 19.58 Id.

82 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEW"[I]n federal prisons, the average drug offender spends more time imprisoned(82.2 months) than do rapists (73.3 months)."s9 "[I]n California, more inmatesare serving life sentences without possibility of parole for marijuana possessionthan for murder, rape, and armed robbery combined.,,6o While more violentcriminals are being set free, there are less and less police personnel available tomaintain order, since they are being used to enforce minor drug laws. "Publicsafety is sacrificed when, nationwide, more than 18,000 local, sheriff's, and statepolice officers, in addition to thousands of federal agents, are devoted full time tospecial drug units. 61 "The War on Drugs is a public safety disaster, making victimsof us all. ,,622. Minimum Sentencing Guidelines, Combined with Plea BargainingPractices, are OppressiveIt is clear that the Guidelines impose lengthy prison terms upon those that maynot deserve them. They are also woefully inadequate in punishing the most seriousdrug offenders because of plea-bargaining. "[P]lea-bargaining is criticized forproviding criminals with excessive leniency and coercing defendants to waivetheir constitutional rights to atrial. ,,63 With plea-bargaining, the most seriousdrug offenders walk, but ordinary people must plead "Guilty," or else risk losingeverything. This is unfair and smacks of coercion. 64 "The Supreme Court hasruled that a determination must be made as to the voluntary nature of a plea ofguiIty.,,65 Yet, how voluntary could a plea agreement be with stakes this high?Procedurally, the prosecutor determines that certain charges can be droppedin exchange for the defendant's agreement to plead "Guilty" to remainingcharges. Add mandatory sentences to the picture and the judge must sentencethe defendant in accordance with the prosecutor's formula. By combining pleabargaining with mandatory minimum sentencing, the judge loses all discretionwhen sentencing individuals: "Mandatory sentences are an obvious abuse of theseparation of powers, as they allow law enforcement to stipulate sentencing.,,6659 Dority, supra note 50.60 [d.61 Wisotsky, supra note 19.62 [d.63 ABADINSKY, supra note 9, at 297-298.64 Schlosser, supra note 17 (explaining that "defendants with the smallest role in conspiraciesoften serve the longest sentances, because they have so little information to trade").65 [d. at 317 (citing Brady v. United States, 397 U.S. 742 (1970) and North Carolina v. Alford,400 U.S. 25 (1970).66 Dority, supra note 50.

THE ROLE OF DISCRIMINATION 833. Minimum Sentencing Guidelines and Discriminatory ImpactThere is a major loophole in the Guidelines that invites abuse and discriminationby the criminal justice system by requiring drastic differences in sentencingbetween crack and cocaine, although both drugs contain the same active ingredient.When some drug suspects are charged, law enforcement officials are givenincredible latitude to determine the length of sentences for indistinguishablecrimes by choosing whether they want to charge the suspect with crack or cocaineuse. Yet again we see a significant discriminatory impact. Of the more than500,000 crack users in the U.S.,67 approximately 65 percent are white. 68 Yet, only4.7 percent of those convicted under the Guidelines for crack offenses are white,while 92.6 percent are black. 69 On the other hand, powder cocaine users are alsopredominantly white. 7o Over ten times as many whites (45.2 percent) than blacks(20.7) are convicted under the more lenient guidelines for powder cocaine.71 TheGuidelines "punish crack offenses 100 times more severely than those involvingpowder cocaine: a crime involving one gram of crack is penalized the same as acrime involving 100 grams of powder cocaine.,,72 As applied, blacks are discriminatedagainst because blacks are more frequently punished under the crackguidelines, and, thus, receive stiffer sentences. Since the active ingredient in bothdrugs is cocaine, prejudice against blacks appears to manifest itself in the reclassificationof crack as powdered cocaine for whites, and vice versa, for black, atvarious stages of prosecution. Federal District Judge Cahill said, "If young whitemales were being incarcerated at the same rate as young black males, [mandatoryminimum sentencing] would have been amended long ago. ,,73Former Atlanta Police Chief Eldrin Bell similarly stated, "I wonder if becauseit is blacks getting shot down, because it is blacks who are going to jail in massivenumbers, whether we - the total we, black and white - care as much? If westarted to put white America in jail at the same rate that we're putting blackAmerica in jail, I wonder whether our collective feelings would be the same, orwould we be putting pressure on the President and our elected officials not tolock up America, but to save America ?,,7467 MCWILLIAMS, supra note 16, at 305.68 COLE, supra note 1, at 142 (citing U.S. v. Armstrong, 517 U.S. 456 (1996) (Steven, J., dissenting»;Also citing H.R. Rep. No. 104-272,20 (1995), reprinted in 1995 U.S.C.C.A.N. 335, 353 (1995).69 [d. (citing U.S. v. Clary, 846 F. Supp. 768, 787 (E.D.Mo. 1994»; Also referencing U.S. v.Walls, 841 F.Supp. 24, 28 (D.D.C. 1994).70 Jennifer Elden, Drug Sentencing Frenzy, PROGRESSIVE 25 (April 1995), reprinted in DRUGS,SOCIETY AND BEHAVIOR 1996-1997, 195 (Hugh T. Wilson, ed. 1996).71 COLE, supra note 1, at 142.72 Elden, supra note 70.73 [d.74 MARC MAUER, RACE TO INCARCERATE, THE SENTENCING PROJECT 118 (1999).

84 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEW4. Minimum Sentencing Guidelines Favor the WealthyIt is not just racial minorities which are discriminated against, but economicclasses. "Rich people have drugs delivered by a reputable dealer" while poorpeople must "go to crack houses or street corners,,75 where they are much morelikely to be busted because they are doing drugs more pUblicly. Likewise, "therich can afford expensive, exclusive escorts" while poor people use "hookers onthe streets,,,76 many of whom are undercover cops. Accordingly, the rich do notfeel pressure from law enforcement the way the poor do. In a 1992 Louis Harrispoll, people with incomes above $50,000 had a much better view of the policethan people with incomes under $7,500. 77According to author Jerome Miller, "The matter of who ends up in the criminaljustice system of any country has always carried racial and ethnic implications.,,78There is racial bias worldwide against whomever is "at the bottom ofthe socioeconomic heap.,,79 In the United States, it is the blacks and the hispanics.As a highly developed and civilized country, we should be above such practices,but reality reveals that we are not. When it comes to drug enforcement, theUnited States government practices blatant prejudice and discrimination.In an editorial, printed in the N.Y. Times, Judge Whitman Knapp, SeniorJudge, U.S. District Court for the Southern District of New York, stated that,"after 20 years on the bench, I have concluded that federal drug laws are a disaster.It is time to get the government out of drug enforcement. As long as weindulged the fantasy that the problem could be solved by making America drugfree, it was appropriate that the government assume the burden. But that ambitionhas been shown to be absurd. ,,805. Does Life Imprisonment for Making an Illicit Phone Call "Fit the Crime"?It is hard to imagine anything a person could say over the phone that wouldjustify a life sentence. Federal prosecutors were able to obtain a mandatory minimumlife sentence for Mark Young, who did nothing more than pick up the telephoneand introduce two casual acquaintances he hardly knew and never metbecause the Guidelines apply to criminal conspiracy as well as actual conduct. InMay 1991, Young was arrested for "conspiracy to manufacture" marijuana. Inaddition, prosecutors filed for an "enhancement," since Young had prior drug75 MCWILLIAMS, supra note 16, at 241.76 [d. at 242.77 COLE, supra note 1, at 171 (citing BUREAU OF JUSTICE STATISTICS, SOURCEBOOK OF CRIMI-NAL JUSTICE STATISTICS-1992, 171-72 (1993».78 MILLER, supra note 23 at 49.79 [d.80 Whitman Knapp, Dethrone the Drug Czar, N.Y. TIMES, May 9,1993, § 4, at 15, (quoted inpart by MCWILLIAMS, supra note 16, at 306).

THE ROLE OF DISCRIMINATION 85convictions. This triggered a mandatory-minimum sentence of life imprisonmentwithout possibility of parole, even though Young never came into contact withany of the contraband. 81 If federal prosecutors are going to use conspiracy theoryunder the Guidelines, perhaps they should rethink the applicability ofmandatory life sentences for non-violent crimes. There is a huge difference betweenthis kind of phone call and a crime involving murder and violence. Thepunishments should not be the same. This difference should be reflected in theGuidelines.D. The High Cost of IncarcerationRetired General Barry McCaffrey, former Director of the White House Officeof the National Drug Control Policy, also known as the "U.S. Drug Czar," statedin 1996, "the solution to our drug problem is not in incarceration.,,82 The currentU.S. Drug Czar Lee Brown agrees. 83 "The main reason why [incarceration] isunworkable as a strategy against drug offenders is that there are so many of themthat a serious attempt to put them all - or even just the 'hard core' - behindbars is unrealistic.,,84 According to the Department of Health and Human Services,almost 26 million people in the U.S. used street drugs in 1994. 85 Incarcerationdoes not work unless it is complete incarceration of everyone distributingand using drugs. Otherwise, you "simply open up a position for someone else inan on-going enterprise.,,86 Complete incarceration would cost $100,000 per cellin construction, and $25,000 in yearly operating costs per inmate. 87 This wouldbe a $2.6 trillion capital outlay and one quarter of that more every year. Othercosts would include the annual loss of tax revenue and economic activity from theincarceration of these individuals."[E]ach year we spend $13 billion at the federal level and $16 billion at thestate and local levels to catch and incarcerate (and, to a far smaller degree, educate)drug possessors, users, manufacturers, and traffickers. That comes to $29billion a year.,,88 At the same time, "[a]n American child under eighteen washalf again as likely to be poor in 1994 as twenty years earlier, and more and morepoor children were spending a long stretch of their childhood, or all of it, below81 Schlosser, supra note 17.82 MCWILLIAMS, supra note 16, at 184 (quoting Gregg Zoroya, He's at the Front Lines OnceAgain; Government: Today, Retired Gen. Barry Mccaffrey Begins Leading the U.S. War Against Drugs.And He Has Every Confidence Which Side Will Win, L.A. TIMES, Mar. 6, 1996, at E-1).83 COLE, supra note 1, at 202 (citing Fox Butterfield, More Blacks in Their 20s Have TroubleWith the Law, N.Y. TIMES, Oct. 5, 1995, at A18).84 Currie, supra note 46.85 MCWILLIAMS, supra note 16, at 210.86 CURRIE, supra note 3, at 30.87 Currie, supra note 46.88 MCWILLIAMS, supra note 16, at 147.

86 THE UNIVERSITY OF TIlE DISTRICT OF COLUMBIA LAW REVIEWthe poverty line.,,89 While it may be prudent to reserve incarceration for only thedangerous offenders, who must be confined for the protection of society, thisnotion may be met with some opposition. At a minimum, Congress should enact"a presumption in favor of relatively short sentences,,90 for victimless offenders.One Oregon judge compared America's crime control to the Vietnam Warstrategy: "When the addition of more troops and materiel failed to defeat theViet Cong, the solution was always to send in more troops and materiel. ,,91 Ultimately,after tremendous loss of life and limb, we learned that Vietnam was abattle we could not win. We appear to be on a similarly slow learning curveagain. We need to call a cease-fire to the "War on Drugs."m. SOLUTIONA. The U.S. Needs an Accurate and Humanitarian Public PolicyToward CrimeAlthough legalization of marijuana may seem remote for the United States,alternatives to incarceration have been "poorly publicized and inadequately representedby politicalleaders.,,92 According to the National Punishment Survey,most Americans believe incarceration is "the punishment of choice for virtuallyall serious common crime. ,,93 Like the national polls, most Californians also favoredincarceration for most crimes. That is, until "respondents were also providedwith the options of community service, restitution, strict probation, bootcamps, drug treatment, and house arrest," after which only 27 percent favoredincarceration. 94There are a number of positive alternatives to incarceration for non-violentcriminals, especially drug offenders. Eighty percent of our present inmates wereconvicted on drug-related charges, but "only a handful [have received] any substance-abusetreatment in prison.,,95 For now, our criminal justice system performspre-release risk assessment procedures and post-release monitoring and89 CURRIE, supra note 3, at 31.90 TONRY, supra note 5 at 192-193.91 Id. at 197.92 ALEXIS M. DURHAM III, CRISIS AND REFORM, CURRENT ISSUES IN AMERICAN PuNISHMENT178 (1994).93 Id. at 176-177 (citing U.S. GOVERNMENT PRINTING OFFICE, SOURCEBOOK OF CRIMINAL Jus­TICE STATISTICS - 1988,219 (Katherine M. Jamieson and TImothy J. Flanagan, eds. 1989)}.94 Ill. at 177 (citing Lawrence Bennett, Californians Accepting of Community Punishments forCriminal Offenders (1989), Address at The American Society of Criminology National Conference,(1988}}.95 Joseph A. Califano Jr., Copping Out on Kids; Both Candidates Ignore the Most Vexing Threatto Converting Their Rhetoric Into Reality: Drug, Alcohol and Tobacco Abuse and Addiction, WASH.POST, JuI. 13,2000 at A27 (quoting The National Center on Addiction and Substance Abuse at ColumbiaUniversity (CASA}).

THE ROLE OF DISCRIMINATION 87supervising of offenders in the community.96 We can expand this system. I proposethat the United States consider electronic monitoring, parole and communityservice as alternatives to incarceration to alleviate some of the presentovercrowded conditions.We must also reconsider human forgiveness. Not all people need drastic punishmentto force them to have remorse for what they have done. Criminals canbecome honest citizens, just as those who are released can again becomecriminals. A judge, with full access to the facts of a particular case, is in a betterposition to ascertain this than Congress. Mandatory minimum sentences thattake away a judge's discretion in sentencing should be eliminated.The criminal justice system should not just focus simply on incarceration buton reintegrating offenders into society and on preventing crime: 97 "40 percent ofstate prisoners can't even read; and 67 percent of prison inmates did not havefull-time employment when they were arrested.,,98 It would be money well-spentto educate prisoners and provide them with job placement upon release. 99"[O]ur failure to match the increasing rates of imprisonment with correspondingincreases in programs to reintegrate offenders into productive life means that weare steadily producing ever-larger armies of ex-offenders whose chances of successin the legitimate world have been diminished by their prison experience."lOOIf we do not act to improve upon the lives of these people, the problem in itsaggregate could explode beyond civil unrest.B. Social Programs Should Not Be Replaced With IncarcerationDrug offenders need treatment, not incarceration. We have been using ourprisons as an alternative to mental health care facilities for too long. 101 A growingprison system is what we have, "instead of an antipoverty policy, instead of anemployment policy, instead of a comprehensive drug-treatment or mental healthpolicy,,,102 and instead of a universal literacy policy. Prisons are ineffective intreating drug abusers. Drug Treatment Alternatives to Prison is a remarkableNew York program that helps keep scarce prison cells available for violent96 CURRIE, supra note 3, at 52.97 Id. at 163.98 COLE, supra note 1, at 4 (citing David C. Lewen, Curing America's Addiction to Prisons, 20FORDHAM URB. L.J. 641, 646 (1993».99 CURRIE, supra note 3, at 168, 172.100 Id. at 30; See also id. at 31 ("[F]ederal spending on jobs and job training for low-incomepeople dropped by half during the 1980s. Meanwhile, between 1980 and 1993, federal spending on'correctional activities' rose, in current dollars, by 521 percent.").101 COLE, supra note 1, at 191 (citing Peter Reuter, Punishing Without Reflection, 2 DRUGPOLICY ANALYSIS BULL 1 (May 1997) ("Three-quarters of the federal government's drug-controlbudget is directed at apprehending and punishing drug dealers and users, while less than one-sixth isdirected at treatment. ").102 CURRIE, supra note 3, at 32-33.

88 THE UNIVERSITY OF TIlE DISTRICf OF COLUMBIA LAW REVIEWcriminals. It "saves money by diverting non-violent criminals into less costlytreatment programs, and cuts crime rates in the long run by reducing addictions.,,103In two 1994 reports by the California-based Rand Drug Policy ResearchCenter, statistics show that "even if only 13 percent of cocaine users stayedoff the drug after counseling, treatment is still twice as effective in reducing overallcocaine consumption as domestic and international law enforcement effortS.,,104Drug treatment centers for drug offenders would have the added"advantage of being able to use the coercive power of the criminal justice systemto get people to stay" in the program. lOS Combine that with a substantive programthat is not just all talk, but that has doctors who can medicate drug addictsand provide safe and gradual reductions in their street drug habits, without thedevastating effects of a cold-turkey withdrawal. Alternatively, addicts of hardcoredrugs may be able to quit on their own, if their efforts were supplemented bythe medicinal effects of freely available marijuana.C. Legalize Marijuana for Use Under Doctors' SupervisionAnother solution would be to move the underground drug economyaboveground. We need not make a radical change to accomplish this, but a subtleone. Legalization of marijuana, even at minimal THC levels,106 could result inas many as 6 million new jobs, by turning 6 million underground criminals intotax-paying citizens. "$1 trillion in drug money is laundered world-wide each year.It is estimated that 40%, or $400 billion, of this is laundered in the UnitedStates." 107The majority of illegal drug users do not want to be criminals. The underlyingpsychological problem with drug users is a personality defect that causes them toself-medicate, or escape reality. lOS This is also referred to as an addictive personality.109Many Americans see little hope, having no job, no loved ones and nomeaningful future. Street drugs help these people escape their hopelessness.Drugs allow them to experience emotions they wouldn't otherwise feel, at theexpense of nobody but themselves. It is foolish to tum this kind of behavior intoa major felony. In the words of Marilyn vos Savant, "What is the essence of103 James Dao, For Addicts, Alternatives to Prison, N.Y. TIMES, Apr. 4, 1994, at B-3, reprintedin DRUGS, SOCIETY AND BEHAVIOR 1996-1997,221 (Hugh T. Wilson, ed. 1996).104 David Rohde, Why Drugs Keep Flowing: Too Little Emphasis on Treating Heavy Users,CHRISTIAN SCIENCE MONITOR 8 (Jul. 20,1994), reprinted in DRUGS, SOCIETY AND BEHAVIOR 1996-1997,206 (Hugh T. Wilson, ed. 1996).105 Dao, supra note 106.106 T.H.C. is the active ingredient in marijuana.107 MCWILLIAMS, supra note 16, at 155 (quoting expert testimony before CongressionalCommittees).108 Interview with David Niblack, late Professor of Law of the UDC David A. Clarke School ofLaw and Defense attorney, Washington, D.C. (Oct. 2000).109 [d.

THE ROLE OF DISCRIMINATION 89America? Finding and maintaining that perfect, delicate balance between freedom'to' and freedom 'from,."IIO"[M]arijuana is not, by most assessments, physically addictive."uI Yet it providesescape for people who suffer from medical conditions as well as conditionsof poverty. In 1988, Administrative Law Judge Francis L. Young, during hearingsbefore the U.S. Drug Enforcement Administration, recommended that marijuanabe transferred from Schedule I to Schedule II, making it available for legal distributionby prescription. I 12 Young said, "marijuana in its natural form is one of thesafest therapeutically active substances known to man. "U3 When appointingDrug Czar Peter Bourne, former U.S. President, Jimmy Carter, announced thathe supported legislation "to eliminate all federal criminal penalties for the possessionof up to one ounce of marijuana."U4Professor Elliott Currie of the University of California, Berkeley calls thecomplete legalization and deregulation of drugs the "free-market approach."This would entail "controlled dispensation of drugs to addicts who have beencertified by a physician, under strict guidelines as to amounts and conditions ofuse," as is done in England. 115 A free-market approach "would reduce or eliminatethe crime and violence now inextricably entwined with addiction to drugsand with the drug trade."u6 Marijuana could be sold at the local drugstore,where the FDA could ensure its purity and track its use. "Many options are available,including decriminalizing users only, permitting doctors to prescribe somedrugs to addicts to undercut the black market.,,,u7The U.S. needs a balanced approach to the drug problem. The high costs ofprohibition and incarceration can not be justified since prohibition has failed toresult in reduced harm for drug offenders nor an improved quality of life for the110 Amit Kothari, The Quotations & Sayings Database, (Marilyn vos Savant holds The GuinnessBook of World Records for having the highest 1.0. scores in both child and adult categories,1985-present and authors the "Ask Marilyn" column in Parade magazine), .111 Paul Cotton, 'Harm Reduction' Approach May Be Middle Ground, JAMA 1641, 1641-1645(Jun. 1, 1994), reprinted in DRUGS, SOCIETY AND BEHAVIOR 1996-1997,253,255 (Hugh T. Wilson, ed.1996).112 MARUUANA, MEDICINE & THE LAW 445-446 (R.c. RANDALL, ed. 1989) (explaining legitimatemedical uses for victims of cancer, glaucoma, multiple sclerosis, paraplegia, quadriplegia andchronic pain and skin disorders).113 Jacob Komisar, Support Marijuana Legalization! Marijuana Relegalization Debate, .114 Hanna Rosin, The Return of Pot, THE NEW REPUBLIC 18 (Feb. 17, 1997).115 Currie, supra note 46; London, supra note 45 (explaining that, "by introducing standards ofidentity, purity, sterility and dosage, legalization can reduce the harmful potential of heroin and theother drugs currently sold on the black market").116 Currie, supra note 46.117 Robert L. DuPont, Will Legalizing Drugs Benefit Public Health? (No), 7 PRIORITIES No.2,24,24-30 (1995), reprinted in DRUGS, SOCIETY AND BEHAVIOR 1996-1997,231,235 (Hugh T. Wilson,ed.1996).

90 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWrest of society.11s Prohibition of marijuana is no more successful today than prohibitionof alcohol was in the early 1900s. It has clearly become a form of governmentoppression. While complete legalization of more serious street drugs seemsdangerous, limited legalization of marijuana may be acceptable, at least under adoctor's supervision. Such a strategy could put U.S. drug dealers out of business,letting doctors, not lawyers, regulate medicine and assisting to make our streetssafe again.CONCLUSIONTo reshape the policy that causes overcrowded prisons, we must allow ourselvesto be more tolerant of others, reserving prisons for those who are hurtingothers, not just hurting themselves. We must try not to condemn others, but usealternatives to incarceration whenever rehabilitation is feasible. We should doaway with minimum sentencing and give judges back the power to determine thecharacter of the defendant, and sentence accordingly. When incarceration becomesnecessary, academic and vocational training should be available, as well asjob placement, upon release. More importantly, these services should be freelyavailable to everyone, not just those who have been incarcerated. Still, we shouldnever let incarceration be a substitute for drug treatment and mental health carefor the indigent and for criminals. Once we return to a primarily victim-drivencriminal prosecution system, we can then work to restore privacy and personalsecurity rights that were taken away during these highly-intrusive investigationsinto today's victimless crimes.118 Id.

RETHINKING THE DISCHARGE OF PRE-PETITIONATIORNEY FEES IN CHAPTER 7 BANKRUPTCY:A DEBTOR ORIENTED PERSPECTIVEJames L. Neher*INrRODUcnONThe courts are split over a provision of the Bankruptcy Code, l in which themajority courts hold that upon the filing of a Chapter 7 bankruptcy,2 unpaid attorneyfees, for pre-petition work in connection with preparing and filing bankruptcy,are discharged. 3 In contrast, the minority view holds that attorney fees inconnection with preparing and filing a bankruptcy are not dischargeable whetherprepaid or not, as long as they are not excessive. 4The problem with the majority view is that indigent debtors may be deprivedof access to legal counsel unless they can pay all or most of their attorney fees inadvance. 5 In addition, any attorney that represents debtors who cannot afford topay the entire fee in advance, runs the risk of having a conflict of interest with thedebtor. 6The minority view holds that Congress simply assumed that attorney fees incontemplation of bankruptcy would not be dischargeable unless they were excessive,7and these courts find support from provisions in the Code and Rules whichclearly contemplate and provide for the disclosure and court supervision of suchfees. 8* J.D., University of the District of Columbia David A. Clarke School of Law, 2001; B.S.George Mason University, 1990.1 All Code and Section references refer to 11 U.S.C. §§ 101-1330 (2000). All Rule referencesrefer to Fed. R. Bankr. P. 1001-9036.2 See In re Haynes, 216 B.R. 440,444 (Bankr. D. Colo. 1997)(holding that attorney fees aredischargeable under Chapters 9, 11, 12, and 13 as well).3 See In re Perry, 225 B.R. 497, 499 (Bankr. D. Colo. 1998).4 See id. at 500.5 See id. at 498.6 See Perry, 225 B.R. at 498; In re Mills, 170 B.R. 404, 410-11 (Bankr. D. Ariz. 1994); In reMartin, 197 B.R. 120, 127 (Bankr. D. Colo. 1996)(agreeing that there are important public policyconcerns about access to the bankruptcy system for indigent debtors, although noting that they arenot all one-sided); In re Nieves, 246 B.R. 866,873 (Bankr. E.D. Wis. 2(00)(stating that the court fullyrecognized that debtors who could not afford to pay attorney fees before filing might have difficulty inobtaining legal counsel) But see Joshua D. Morse, Comment, Public Policy Is Never a Substitute forStatutory Clarity: Rejecting the Notion That Pre-petition Attorney Fees Are Nondischargeable in Chap·ter 7 Bankruptcies, 40 Santa Clara L. Rev. 575, 604 (2000)(arguing that public policy concerns aboutlack of access to the bankruptcy system are misplaced because the number of Chapter 7 cases filedeach year continues to rise).7 See Mills, 170 B.R. at 410-11.8 See 11 U.S.c. § 329 (2000). It reads in pertinent part:

92 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWThis comment will compare and contrast the majority and minority opinions,and then argue that the minority approach is preferable from both a public policyperspective and in keeping with Congress' intent in enacting the BankruptcyCode. By adopting the majority view, courts may deprive indigent citizens of theonly practical means of paying for legal assistance in the bankruptcy context.I. HISTORYA. The Majority ViewThe court in In re Nieves,9 decided the issue of the dischargeability of attorneyfees by holding that fees for pre-petition legal services constitute a dischargeabledebt, and that post -petition attorney fees are dischargeable to the extent they areexcessive. toThe Court reasoned that Section 727(b)11 discharges should be read broadly,and that in this case, it was undisputed that the un-paid pre-petition legal servicescreated a debt which arose before the date of the order for relief. 12 Also, theCourt found that it was undisputed that Section 523 13 does not contain a specificexception for unpaid pre-petition attorney fees, and that exceptions to dischargeshould be narrowly construed. Therefore, the Court reasoned, unpaid pre-petitionattorney fees are a dischargeable debt, notwithstanding an agreement thedebtor had signed to the contrary.14 "A debtor may not contract away the right toa discharge in bankruptcy.,,15(a) Any attorney representing a debtor in a case under this title ... shall file with the court astatement of the compensation paid or agreed to be paid ... for services rendered or to berendered in contemplation of or in connection with the case ... .(b) If such compensation exceeds the reasonable value of any such services, the court maycancel any such agreement, or order the return of any such payment, to the extent excessive.See also Fed. R. Bankr. P. 2016(b). Every attorney for a debtor ... shall file and transmit to the UnitedStates trustee ... within 15 days after the order for relief ... the statement required by § 329 of theCode.9 In re Nieves, 246 B.R. 866 (Bankr. E.D. Wis. 2000).10 See Nieves, 246 B.R. at 873.11 11 U.S.C. §727(a) The court shall grant the debtor a discharge ....(b) Except as provided in section 523 of this title, a discharge under subsection (a) of thissection discharges the debtor from all debts that arose before the date of the order for reliefunder this chapter ....12 Nieves, 246 B.R. at 872.13 11 U.S.C. §523 (2000).(a) A discharge under Section 727, 1141, 1228(a), 1228(b), or 1328(b) of this title does notdischarge an individual debtor from any debt. .. (this section then lists 18 different categoriesof exceptions, none of which could be construed as including attorney fees).14 See Nieves, 246 B.R. at 872.15 [d. at 872.

A TfORNEY FEES IN CHAPTER 7 BANKRUPTCY 93In stating its position, the Court added that "a court must be careful not toengage in legislation," and that "where a statute's language is plain, the sole functionof the courts is to enforce the statute according to its terms. ,,16 By doing, sothe Court aligned itself with the majority view and its interpretive position thatCode Sections 727(b) and 523 should be given their plain meaning. 17The Court recognized that its holding could create public policy problems, inthat debtors who cannot afford to pay attorney fees before filing for Chapter 7bankruptcy may have difficulty in obtaining legal counse1. 18 The Nieves Courtproposed options whereby indigent debtors could obtain legal counsel, althoughthe court acknowledged problems with each of its recommendations. One optionwas for the debtor to sign a reaffirmation agreement,19 but the court pointed outthat reaffirmation agreements create a conflict of interest between the debtor anddebtor's attorney for which yet another attorney may be required. 2o Alternatively,the court suggested that a debtor's attorney file the petition immediately,but defer filing of the bankruptcy schedules and statement of affairs, as well asperforming other legal services until after the petition has been filed. Such activitywould not be dischargeable since it would be performed post-petition. TheCourt added in closing, that it would not establish a judicial exception to discharge,since that request should be made to Congress, not to the courtS. 21Through this holding, the Nieves court aligned itself with the majority viewwhich was well articulated by the court in In re Martin,22 Finding no precedent inthe Tenth Circuit for determining whether pre-petition attorney fees are dischargeableor not, the Martin court had made an in-depth analysis of the majorityopinion. It applied the plain language rule of statutory construction stating,"Rules of statutory construction compel a strict and literal interpretation of §727and §329,,,23 and admonished other courts to apply this principle of statutoryconstruction:"[I]f the statutory language is unambiguous, in the absence of 'a clearly expressedlegislative intent to the contrary, that language must ordinarily be regardedas conclusive.' ,,2416 U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989).17 See Nieves, 246 B.R. at 872.18 See id. at 873.19 See Perry, 225 B.R. at 498 (reaffirmation agreements are separate agreements entered intoafter filing the bankruptcy petition in which the debtor agrees to pay the unpaid balance of the attorney'sfee).20 See Nieves, 246 B.R. at 873.21 See Nieves, 246 B.R. at 873.22 In re Martin, 197 B.R. 120 (Bankr. D. Colo. 1996).23 Id. at 127.24 Martin, 197 B.R. at 120 (quoting United States v. Thrkette, 452 U.S. 576, 580(1981».

94 THE UNIVERSITY OF THE DISTRICI' OF COLUMBIA LAW REVIEWThe Martin Court did not find that the existence of Section 329 25 and Rules2016 26 and 2017 27 constituted a clearly expressed legislative intent to allow attorneysto collect fees for pre-petition services after filing, which would be contraryto the plain language of §727(b)28 and §523. 29 The Martin Court, in fact, found noconflict at all between the provisions of §329 and §727, determining that theyserve different purposes. 30 The purpose of §329, it concluded, is to regulate alltransactions between the debtor's attorney and the debtor in all cases under theCode, and to prevent overcharging by the debtors' attorneys in the bankruptcyprocess. Section 329, does not address the effect of a discharge on the debtor'sobligation to pay his or her attorney for pre-petition fees. In contrast, §727 addressesthe fundamental goal of bankruptcy, a fresh start for debtors, and shouldbe read broadly.31 The Martin Court concluded that Congress must have intendedfor §329 and related provisions to apply only to the areas where they donot overlap with §727 and §523. 32 Where these provisions do overlap - wherepre-petition attorney fees incurred in preparation of a Chapter 7 bankruptcy remainunpaid at the time of filing - such fees constitute a dischargeable debt. 33Under this reasoning, §329 allows the c

A TfORNEY FEES IN CHAPTER 7 BANKRUPTCY 95pre-petition attorney fees are likewise dischargeable under Chapters 9, 11, 12,and 13.36B. The Minority ViewIn In re Perry, the debtor filed a Chapter 7 bankruptcy petition on April 28,1998, and disclosed that she had paid her attorney' $350.00 on April 9, 1998. 37The attorney timely filed a disclosure statement, as required by Rule 2016(b ),38on April 16, 1998, which provided that the unpaid balance for services in connectionwith the bankruptcy petition was $400.00. The Debtor received a dischargeon July 30, 1998. 39The Court had to decide whether the $400.00 balance that remained unpaidwas dischargeable. 40 At that time, other bankruptcy courts in Colorado wereholding all unpaid attorney fees to be discharged on filing, if they were for prepetitionservices. 41 In this case, the attorney had not made a distinction betweenpre-petition and post-petition fees in her Rule 2016(b )42 disclosure statement.Instead, the attorney was relying on a reaffrrmation agreement that the debtorhad agreed to sign, which in theory, would have reaffirmed the debtor's intentionto pay the debt despite its having been discharged. 43The Perry Court, aligning itself with the minority view, concluded that althoughCongress had contemplated and set out an elaborate scheme for the disclosureand regulation of pre-petition attorney fees,44 "Congress has failed to setout explicit rules regarding the treatment of attorney fees in Chapter 7 cases, ,,45by neglecting to make an explicit exception for them in §523 of the BankruptcyCode. 46 This minority view, previously articulated by the Mills Court,47 found aconflict between the various provisions of the Code that affect such fees. 48 Specifically,the Mills Court found that while Section 329,49 and Rules 2016 50 and2017,51 allow for post-petition payment of such fees, the discharge provisions of36 See In re Haynes, 216 B.R. 440, 444 (Bankr. D. Colo. 1997).37 See Perry, 225 B.R. at 497.38 Fed. R. Bankr. P. 2016(b).39 See Perry, 225 B.R. at 498.40 See id. at 498.41 See Martin, 197 B.R. at 120; Haynes, 216 B.R. at 444-45.42 Fed. R. Bankr. P. 2016(b).43 See Perry, 225 B.R. at 498 (the Court declared the reaffirmation agreement to beunenforceable ).44 See Perry, 225 B.R. at 498.45 Perry, 225 B.R. at 498.46 See Perry, 225 B.R. at 498.47 See Mills, 170 B.R. at 404.48 See Perry, 225 B.R. at 500.49 11 U.S.C. § 329.50 See Fed. R. Bankr. P. 2016(b), supra note 9.51 See Fed. R. Bankr. P. 2017, supra note 28.

96 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWSection 727(b)52, and the limited exceptions to discharge in Section 523,53 indicatethat these fees constitute a dischargeable claim. 54The Perry and Mills courts found that these provisions are in conflict, and heldthat although they seem to be irreconcilable, they should be harmonized as muchas possible. 55 They noted that the Supreme Court has stated,"[S]tatutory constructionis a holistic endeavor.,,56 Under the holistic method of statutory construction,specific provisions should be read in context. 57 Since it is not consistentwith the enactment of Section 329 to discharge reasonable attorney fees, Congressmust have anticipated such fees and must not have intended for them to bedischargeable under Sections 727(b) and 523. 58U. ANALYSISA. Methods of Statutory InterpretationBoth the plain language and the holistic methods of statutory constructionhave been sanctioned by the Supreme Court and are well-regarded principles ofconstruction. 59The Nieves and Martin courts, however, rejected the holistic method of statutoryconstruction used by the Mills and Perry courts in an attempt to reconcileSections 329 and 727. The court in Martin stated,"Rules of statutory constructioncompel a strict and literal interpretation of Sections 727 and 329.,,60 The MartinCourt quoted Consumer Product Safety Commission v. GTE Sylvania, Inc.,61stating, "[I]f the statutory language is unambiguous, in the absence of a 'clearlyexpressed legislative intent to the contrary, that language must ordinarily be regardedas conclusive.' ,,62The Martin Court then determined that there is no conflict between Sections329 and 727 because they can be seen to serve different purposes: 6352 11 u.s.c. § 727(b)(2000).53 11 U.S.C. § 523 (2000).54 See Perry, 225 B.R. at 499.55 See Perry, 225 B.R. at 499; Mills, 170 B.R. at 404.56 United Savings Association of Texas, v. limbers of Inwood Forest Associates, Ltd., 484 U.S.365, 371 (1988).57 See generally Timbers, 484 U.S. at 370-82.58 See Perry, 225 B.R. at 499; Mills, 170 B.R. at 412.59 See U.S. v. Ron Pair Enterprises, Inc., 489 U.S. 235(1989); Timbers, 484 U.S. at 371; U.S. v.Thrkette, 452 U.S. 576 (1981); Bailey v. U.S., 516 U.S. 137 (1995); Carlos J. Cuevas, Public Values andthe Bankruptcy Code, 12 Bankr. Dev. J. 645, 646 (1996); Carlos E. Gonzalez, Reinterpreting StatutoryInterpretation, 74 N.C. L. Rev. 585, 588 (1996).60 Martin, 197 B.R. 127.61 Consumer Product Safety Comm'n. V. GTE Sylvania, Inc., 447 U.S. 102 (1980).62 Id. at 108.63 See Martin, 197 B.R. at 127.

A TIORNEY FEES IN CHAPTER 7 BANKRUPTCY97Section 329 regulates transactions between the debtor's attorney and thedebtor in all cases under the Code. Its purpose is to prevent the overreachingof debtor's attorney in the bankruptcy process. It does not speak to theeffect of a discharge upon a debtor's pre-petition obligation to the attorney.In contrast, Section 727 creates and defines the substantive rights of discharge.It addresses the fundamental goals of bankruptcy, a fresh start forthe debtor and equal treatment of creditors. 64Perceiving no conflict, the Martin court concluded,"[H]ad Congress intended tocreate an exception to discharge for unpaid attorney fees presumably it wouldappear in Section 523. ,,65The Court in U.S. v. Turkette,66 which Martin relied on, however, did not stopits analysis at the language of the statute. It explained, "[W]e first look at [thestatute's] language",67 but continued its analysis, stating, "[T]here is no errorlesstest for identifying or recognizing 'plain' or 'unambiguous' language. [A]bsurdresults are to be avoided and internal inconsistencies in the statute must be dealtwith. ,,68 Further, the Turkette Court weighed and rejected the appropriateness ofthe First Circuit Court of Appeals' use of the rule of ejusdem generis,69 consideredwhether terms in the statute would create internal inconsistencies in thestatute,70 whether language in the statute would be rendered superfluous,71 andanalyzed the history of the statute and the legislative history for indications ofCongress' intent. 72The reasoning expounded in Martin and embraced in the majority view leavesseveral questions unanswered. If the disclosure provisions of §329 do not apply topre-petition attorney fees still unpaid at the time of filing, are such fees not requiredto be disclosed? Why do the Bankruptcy Rules expressly mention suchfees at length but never indicate any limitation on their applicability to Chapter 7cases? Would Congress change the way debtors may pay for bankruptcy, withoutever mentioning such a change, in a statute as contested as the BankruptcyCode?7364 [d. at 127.65 [d. at 127.66 U.S. v. Thrkette, 452 U.S. 576 (1981).67 [d. at 580 (citing GTE, 447 U.S. at 102).68 Thrkette, 452 U.S. at 580 (citing Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 643, 98 S.Ct.2053,2061 (1978); Commissioner v. Brown, 380 U.S. 563, 571, 85 S.Ct. 1162, 1166 (1965».69 Ejusdem generis: where general words follow the enumeration of particular classes of things,the general words will be construed as applying only to things of the same general class as thoseenumerated. Black's Law Dictionary, 517 (6th ed. 1990). See Turkette, 452 U.S. at 581-82.70 See id. at 582.71 See id. at 582-85.72 See id. at 586-93.73 See Ron Pair, 489 U.S. at 240 (noting that Congress worked on the formulation of the BankruptcyCode for nearly a decade).

98 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWThe courts in Perry and Mills, on the other hand, following the minority view,relied on United Savings Association of Texas v. Timbers of Inwood Forest Associates,Ltd. in which the Court was trying to ascertain the meaning of the term"interest in property.,,74 The Timbers Court stated that although viewed in theisolated context of the Code section in which it was found 75 the term "interest inproperty" could reasonably be given the meaning urged by the petitioner, itwould not end .its analysis at a plain language reading because "[S]tatutory constructionis a holistic approach. ,,76 The Court concluded that the holistic approachshould be used because "[A] provision that may seem ambiguous inisolation is often clarified by the remainder of the statutory scheme - becausethe same terminology is used elsewhere in a context that makes its meaningclear," or alternatively, "because only one of the permissible meanings [of theterm] produces a substantive effect that is compatible with the rest of the law.,,77The Martin court and the other majority courts also relied on Watt v. State ofAlaska,18 in which the Supreme Court stated that even though the plain meaningof a statute appears to be clear, "ascertainment of the meaning apparent on theface of a single statute need not end the inquiry. This is because the plain-meaningrule is 'rather an axiom of experience than a rule of law, and does not precludeconsideration of persuasive evidence if it exists.' ,,79 "The circumstances ofthe enactment of particular legislation may persuade a court that Congress didnot intend words of common meaning to have their literal effect. ,,80The Watt Court reviewed the history of the Bankruptcy Code provision atlength, and employed other maxims of statutory construction: 81 "repeals [of provisionsof statutes] by implication are not favored,,,82 the intention of the legislatureto repeal must be "clear and manifest. ..,,83 and "[W]e must read the statutesto give effect to each if we can do so while preserving their sense and purpose.,,84Bailey v. United States,85 provides a recent example of meticulous and systematicstatutory construction being employed by the Supreme Court in a District ofColumbia case. In Bailey, the Supreme Court attempted to ascertain the meaning74 See United Association of Texas v. TImbers of Inwood Forest Associates, Ltd., 484 U.S. 365,371 (1988).75 11 U.S.c. § 362(d)(I) (2000).76 See Timbers, 484 U.S. at 371.77 Timbers, 484 U.S. at 371.78 Watt v. State of Alaska, 451 U.S. 259(1981)(Burger, C.J., Stewart, J., and Marshall, J.,dissenting).79 ld. at 266 (quoting Boston Sand Co. v. United States, 278 U.S. 41, 48(1928).80 ld. at 266.81 See generally Watt, 451 U.S. at 266 - 273.82 Id. at 267 (quoting Posadas v. National City Bank, 296 U.S. 497, 503 (1936).83 ld. at 267 (quoting United States v. Borden Co., 308 U.S. 188 (1939).84 ld. at 267.85 Bailey v. United States, 516 U.S. 137 (1995).

A TIORNEY FEES IN CHAPTER 7 BANKRUPTCY 99of a provision in a statute which criminalized "use" of a firearm during and inrelation to a drug-trafficking offense. 86 The Court started with the plain languageof the Code,87 and then looked at the placement and purpose of the statutoryscheme, stating, "[T]he meaning of statutory language, plain or not, depends oncontext.,,88 The Court then quoted Ratzlafv. United States,89 "Judges should hesitate... to treat [as surplusage] statutory terms.,,90 Additionally, the Court quotedPlatt v. Union Pacific R. CO.,91 for "a legislature is presumed to have used nosuperfluous words.,,92 In the last part of the Court's analysis, it looked to theamendment history of the Code to cast further light on Congress' intent. 93Legal scholarship on the subject of statutory construction, both in and out ofthe bankruptcy context, provides further support for the use of both the plainlanguage and the holistic methods of statutory construction. Although, evenwhen employing the plain language approach, courts will at a minimum considerthe context of the language and review the legislative history.94Out of the primary cases the majority and minority view courts relied on fortheir statutory construction principles, such as Turkette, Watt and Timbers, noneof the courts began and ended their analysis with the plain language of the Code.While the Court started with the plain language of the Code in each case, it wenton to interpret tile Code so as to give meaning to each provision, and analyzedwhether its interpretation agreed with the purpose and policies of the Code. Inorder to determine Congress' intent, the Court considered the context and legislativehistory of the provision in question. In Bailey, the Supreme Court employedevery one of these principles.B. Applying These Statutory Construction Principles to the Bankruptcy Code1. The Plain Language of the Bankruptcy CodeA plain language reading of Sections 727 95 and 523 96 indicates that pre-petitionattorney fees are discharged on filing.97 However, even though the plainmeaning of these provisions appears to be clear, as the Supreme Court showed in86 See generally ide at 144-48.87 See ide at 144.88 Id. at 145 (quoting Brown v. Gardner, 513 U.S. 115 (1994».89 Ratzlaf V. United States, 510 U.S. 135, 140-41 (1994).90 Bailey, 516 U.S. at 145 (quoting Ratziaf, 510 U.S. at 140-41).91 Platt v. Union Pacific R. Co., 99 U.S. 48, 58 (1879).92 Bailey, 516 U.S. at 145 (quoting Platt, 99 U.S. at 58).93 See Bailey, 516 U.S. at 144-48.94 See generally Carlos J. Cuevas, Public Values and the Bankruptcy Code, 12 Bankr. Dev. J.645,646 (1996); Carlos E. Gonzalez, Reinterpreting Statutory Interpretation, 74 N.C. L. Rev. 585, 588(1996); William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. Pa. L. Rev. 1479 (1987).95 See 11 U.S.C. § 727.96 See 11 U .S.C. § 523.97 See Perry, 225 B.R. at 499; See Martin, 197 B.R. at 127; See Nieves, 246 B.R. at 872.

100 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWTurkette, Watt, Timbers and Bailey, the analysis is not over. Sections 329 and330 98 of the Bankruptcy Code, Bankruptcy Rules 2016 and 2017, CommitteeNotes,99 and an opposing minority view,100 all signal that there may be someambiguity. Confronted with such divergent views, a court should be reluctant tobegin and end its analysis with the plain meaning of the language. 1012. Interpretation that Gives Meanings to Each ProvisionSections 727 and 523 make no mention of attorney fees. 102 The majority viewholds that since these sections should be accorded their plain meaning, pre-petitionattorney fees which are yet unpaid are discharged on filing.l03 This is interpretedto mean that the way Congress chose to deal with pre-petition attorneyfees was to have them constitute a dischargeable debt if they remained unpaidupon filing. 104Section 329 and Bankruptcy Rules 2016 and 2017, however, also deal with attorneyfees. Congress created an elaborate mechanism for the disclosure, oversightand discharge of both pre-petition and post-petition attorney fees, both paidat the time of filing and not paid. 105 Section 329 requires the debtor's attorney tofile "a statement of the compensation paid or agreed to be paid . .. for servicesrendered in connection with the case .... ,,106 Bankruptcy Rules 2016 and 2017discuss the timing and implementation of Section 329.107It is not at all apparent from Section 329 that Congress wanted the debtor todisclose attorney fees "agreed to be paid" only to discharge those fees. In fact,there are numerous Committee Notes explaining the purpose and workings ofthe statutory scheme, and which speak extensively about attorney fees, the his-98 See 11 U.S.C. § 330, Notes to Committee on the Judiciary Senate Report No. 95-595 (indicatingthat § 330 applies to Officers of the Estate, "and other professionals." The notes and legislativestatements speak extensively about compensating and attracting competent attorneys to the bankruptcyfield, but never mention that such fees might be subject to discharge).99 See 11 U.S.C. § 329, Notes to Committee on the Judiciary Senate Report No. 95-989; 11U.S.C. § 330, Notes to Committee on the Judiciary Senate Report No. 95-595, and Legislative Statements;Fed. Bankr. R. 2016, Committee Notes to 1987 and 1991 Amendments; Fed. Bankr. R. 2017,Committee Note and 1991 Amendments, Committee Note.100 See In re Symes, 174 B.R. 114, 119 (Bankr. D. Ariz. 1994) (fmding no express provision byCongress for non-dischargeability of attorney fees we should not read it in).101 See id. at 119.102 See 11 U.S.c. §§ 727 and 523 (§ 523(d) grants the debtor attorney fees incurred defendingagainst a creditor who unjustifiably contested the discharge of a consumer debt).103 See Martin, 197 B.R. at 120; Nieves, 246 B.R. at 873.104 See Martin, 197 B.R. at 127 (stating that "Had Congress intended to create an exception todischarge for unpaid attorney fees presumably it would appear in § 523"); Biggar, 110 F3d 685, 687(9th Cir. 1997)("Section 523's failure to except debts for attorneys' fees from the Code's dischargeprovisions leads us to conclude that the debts at issue in this case are dischargeable.").105 See 11 U.S.C § 329; Federal Bankruptcy Rules 2016 and 2017; Perry, 225 B.R. at 500.106 11 U.S.C. § 329 (emphasis added).107 See supra notes 26-28.

ATTORNEY FEES IN CHAPTER 7 BANKRUPTCY 101tory of abuse of the debtor-attorney relationship, and the need to ensure thatsuch fees are not excessive. lOSIn the minority's view, the type of "plain reading" approach taken by the majoritycourts makes the disclosure and regulation provisions of the Code andRules superfluous in violation of both the "holistic" and "plain view" statutoryconstruction approaches. 109 "[T]he 'cancellation' provisions of Section 329(b) aremeaningless if Congress intended the obligations to be automaticallydischarged. ,,110The majority view's answer to this argument is that the provisions do not conflict,and Section 329 is not superfluous because the disclosure provisions alsoapply to Chapter 11 and 13 cases. 11l "In [Chapter 11 and 13 cases] a debtor's planmight call for post-petition payments to her attorney. Under those circumstancesa court may review and, if necessary cancel payments for excessive pre-petitionfees.,,112 Unfortunately, using such an interpretation, the courts would not beentitled to review pre-petition attorney fees for reasonableness under Chapter 7cases as long as the fee was paid at the time of filing.Other majority view courts hold that no pre-petition attorney fees are exceptedfrom discharge under any chapter of the Code. 113 Under such an interpretation,are the courts entitled to review paid pre-petition attorney fees forreasonableness at all?C. Consistency with the Code's Purpose and PoliciesCongress clearly articulated the purpose of Section 329 and the Rules thatimplement it: "[T]o permit the court to deny compensation to the attorney, tocancel an agreement to pay compensation, or to order the return of compensationpaid, if the compensation exceeds the reasonable value of the services provided.,,114 Although Congress spoke extensively about the need for judicialscrutiny of attorney fees in the Code, Rules, and Committee Notes, dismissal ofsuch fees was always discussed to the extent they are excessive. No inquiry wassuggested or apparently even contemplated, about whether such fees are prepetitionyet unpaid or a dischargeable debt. 115Congress clearly stated that it hoped to attract competent attorneys to the fieldof bankruptcy who would enable the system to operate smoothly, efficiently, and108 See supra note 101.109 See Mills, 170 B.R. at 411-12.110 Mills, 170 B.R. at 411-12.111 See In re Biggar, 110 F.3d 685, 688 (1997).112 Biggar, 110 F.3d at 688 (citing Symes, 174 B.R. at 118).113 See Haynes, 216 B.R. at 444.114 11 U.S.C. § 329, Notes to Committee on the Judiciary Senate Report No. 95-989, Section(b).115 See 11 U.S.c. §§ 101-1330.

102 THE UNIVERSITY OF mE DISTRICf OF CoLUMBIA LAW REVIEWexpeditiously.1l6 Congress articulated its concern that if attorneys could not bereasonably compensated, "[T]he bankruptcy field would be occupied by thosewho could not find other work .... "117 Congress also explained that Section 330was designed to ensure that the estate, not the attorney, bears the cost of administeringthe bankruptcy, to the benefit of both the estate and the attorneysinvolved. 118The plain language approach, as implemented by the majority courts, wouldmake it difficult for attorneys to be compensated. 119 As a result, competent attorneyswould be driven from the field as Congress feared, and debtors would havea harder time obtaining quality legal assistance. 120Some of these courts suggest reaffirmation agreements and other paymentschemes as ways for indigent debtors to pay their bankruptcy attorneys.121 Thesesame courts, however, are forced to acknowledge that such agreements create aconflict of interest for which the debtor may need yet another lawyer.122 This is agood example of the type of absurd result that the Turkette court, which Martinrelied on, meant to avoid. 123The holistic approach, as implemented by the minority courts, allows attorneysto be compensated for all work they do in connection with a bankruptcy. Attorneysmust disclose the totality of their fees, both paid at the time of filing andthose to be paid after filing. Those fees are subject to the review, and return ordiminishment provisions of the Code, to the extent such fees are unreasonable. 124Under this scenario, Congress' intent that individuals in need of bankruptcy legalservices should receive the same competency of counsel as other cases will berealizable. This will encourage bankruptcy specialists to remain in the field whichwill be beneficial to the individuals and attorneys.125116 See supra note 100.117 Id.118 See 11 U.S.C. § 330, Notes to Committee on the Judiciary Senate Report No. 95-595. (Thecompensation is to be reasonable, for economy in administration is the basic objective.); 11 U.S.c.§330, Notes to Committee on the Judiciary, House Report No. 95-595. (The policy of this section is tocompensate attorneys and other professionals serving in a case under Title 11 at the same rate as theattorney or other professional would be compensated for performing comparable services other thanin a case under Title 11.)119 See Martin, 197 B.R. at 127.120 See Martin, 197 B.R. at 127.121 See Nieves, 246 B.R. at 873; Martin, 197 B.R. at 127; In re Perez, 177 B.R. 319, 321 (Bankr.D. Neb. 1995); Symes, 174 B.R. at 119.122 See Nieves, 246 B.R. at 873 (Entering into a reaffirmation agreement "will create a conflictof interest between the debtor and debtor's attorney and may well necessitate the debtor obtainingindependent counsel in connection with negotiating and signing the reaffirmation agreement.")123 See Turkette, 452 U.S. at 580.124 See Perry, 225 B.R. at 500.125 See 11 U.S.c. § 330, Notes to Committee on the Judiciary Senate Report No. 95-595 andLegislative Statements.

ATTORNEY FEES IN CHAPTER 7 BANKRUPTCY 103The courts which have adopted the majority view have been unable to articulateany reasonable means for indigent debtors to hire competent attorneys toassist them in navigating through Chapter 7 bankruptcies, short of paying all prepetitionattorney fees in advance. 126 Such a system is clearly contrary to whatCongress intended when it laboriously spelled out provisions by which debtors'payments to attorneys would be fully disclosed, reviewed, and subject to reductionor dismissal. 127Finally, the courts should consider the public policy implications of the alternativemethods of interpreting the provisions of the Bankruptcy Code in question.128 For what reason would Congress choose to discharge pre-petitionattorney fees rather than make them reviewable for excessiveness? The majorityconcludes on this issue that the goal of bankruptcy is to make a fresh start, andtherefore, there are good or at least conceivable policy reasons for dischargingattorney fees. 129 But on closer examination, that reasoning is untenable. For onething, the courts find themselves weighing the benefits of a fresh start for thedebtor against the debtor's ability to gain access to legal counsel. While they applaudthe debtor's fresh start, they suggest the debtor pay for the assistance ofcounsel by deferring payment of other debts, borrowing from family and friends,or finding a third party guarantor. 130 Alternatively, they suggest the attorney splitthe fee between pre-petition and post-petition services, requiring only paymentfor pre-petition services prior to filing. 131 Each of these suggestions means thatan indigent debtor will still have to make payments to someone after filing, perhapsa family member or friend who can afford it little more than the debtor.The courts following the minority view do not need to articulate why Congresswould want the Code interpreted in the way they suggest, because Congress hasalready done that for them: "Attracting competent counsel to the field, byensuringthat they are reasonably paid based on the time, nature, extent, and the valueof the services rendered, who in turn enable the system to operate smoothly,efficiently, and expeditiously." 132CONCLUSIONIn this comment I have compared and contrasted the majority and minorityopinions on the issue of the discharge ability of pre-petition attorney fees in Chap-126 See Martin, 197 B.R. at 120; Nieves, 246 B.R. at 866; Haynes, 216 B.R. at 440; Symes, 174B.R. at 114; Biggar, 110 F.3d at 688; In re Perez, 177 B.R. 319 (1995).127 See supra note 127.128 See generally 11 U.S.C. § 329; Fed. R. Bankr. P. 2016 and 2017; 11 U.S.C. § 727(b); 11U.S.C. § 523.129 See Martin, 197 B.R. at 127.130 See id. at 127.131 See id. at 127.132 11 U.S.C. § 330, Notes to Committee on the Judiciary Senate Report No. 95-595.

104 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWter 7 bankruptcies. Clearly, employing the holistic method of statutory construction,as a minority of courts do, is preferable in this instance from both publicpolicy positions and in keeping with Congress' intent in enacting the BankruptcyCode. Without allowing debtors who need the assistance of counsel to navigatethe Chapter 7 bankruptcy process, to enter into whatever type of payment arrangementsthey deem to be in their best advantage, creates an unnecessary andundue hardship with no apparent advantage to the debtors.While the majority courts rally under the banner of "plain language," the endresult of their interpretation of the Code is a lack of access to the courts and tocounsel in the bankruptcy context, for those who are least able to bear the cost.

BLACK PLAINTIFFS AND CLASS ACTION EMPLOYMENTDISCRIMINATION LAWSUITS INCORPORATE AMERICAMichael GreenINTRODUCTIONClass action lawsuits initiated by black employees against corporations havebeen commonplace in the United States in recent years. Why has there been aninflux of litigation targeted to corporate America? Is there an epidemic of discriminationdirected toward black employees in many companies- or is this legalaction a result of a phenomenon that is coincidental? Although many arguethat there is no "systematic" approach or policy to hinder the development ofblacks in corporations, it is evident that serious problems do exist in many companiesthat have the propensity to curtail the advancement of black employees.In essence, this article will highlight certain circumstances where blacks were victimsof employment discrimination in the workplace and show how this discriminationcontinues to exist, preventing blacks from reaching their full economicpotential.I. PAST CLASS LAWSUITS AND BLACK PLAINTIFFSA. Barriers Preventing Employment AdvancementOne of the earliest accounts of a class action lawsuit spearheaded by blackemployees against a corporate entity occurred in 1944. In Steele v. Louisville &Railroad CO.,l a lawsuit initiated by the National Association for the Advancementof Colored People (NAACP) on behalf of a black locomotive fireman andhis fellow employees, the U.S. Supreme Court ruled that the fireman had beendiscriminated by his employer, the Louisville & Nashville Railroad Company.The high court reasoned that the railroad company and the labor union (Brotherhoodof Locomotive Firemen and Enginemen) had a statutory duty to representall members of its craft or railway employees without discrimination because ofrace. 2 Labor relations laws have been employed in attempts to prevent employers,or unions, from discriminating against black workers. 3 The Railway LaborAct (RLA) and the National Labor Relations Act (NLRA) have been used forthese purposes. Under these acts, unions that represent a majority of employeesin a collective bargaining unit serve as the exclusive representatives of all employeesin the unit, regardless of whether or not they are union members. The U.S.1 Steele v. Louisville & Railroad Co., 323 U.S. 192, 193 (1944).2 [d. at 192.3 DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 752 (2000).

106 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWSupreme Court has established that the union must "represent non-union or minorityunion members of the craft without hostile discrimination, fairly, impartially,and in good faith.,,4The Steele case, which was argued in front of the U.S. Supreme Court byNAACP legal counsel, Charles H. Houston, was a suit that served as the foundationthat aided other black plaintiffs who sought relief in courts to counteract theeffects of employment discrimination. In 1969, twenty-five years after Steele, theU.S. Supreme Court upheld its ruling of the Steele precedent in Glover v. St.Louis-San Francisco Railway CO., 5 holding that a railway company could not discriminateagainst black employees based on their race. In this case, eight blacksand five whites brought an action against the railroad company and the Brotherhoodof Carmen of America in Birmingham, Alabama. The plaintiffs allegedthey were qualified to work as carmen but were classified as carmen helpers formany years and therefore did not receive promotions. 6 In short, the U.S. SupremeCourt believed that the plaintiffs indeed were qualified to perform theduties of carmen, which included repairing and maintaining passenger and freightcars. Thus, if the railway company and union set up schemes and contrived to barblacks from promotions, this behavior deprived them of their legal rights asemployees?B. Pervasive Discrimination in the Employment ArenaWhen examining the parameters of job discrimination, it is vital to highlightwhat constitutes discrimination at a job related environment. Job discriminationtakes three forms: employment discrimination, occupational discrimination, andwage discrimination. 8 The first is employment discrimination, the firing or nothiring of a black worker comparable in terms of economic productivity to thewhite worker who is retained or hired. Second, occupational discrimination isrefusal to permit a qualified black worker to hold a higher status pay position.Third, wage discrimination is discrimination in wages paid to black and whiteworkers of comparable productivity in the same occupation. 9 A prime exampleof where black workers were victims of employment discrimination occurred in acase that was consolidated with the Steele decision in 1944. In that year, the U.S.Supreme Court also decided Tunstall v. Brotherhood of Locomotive Firemen &Enginemen 10 in favor of black employees who were victimized by job discrimina-4 Id. at 752.5 Glover v. S1. Louis-San Francisco Railway Co., 393 U.S. 331 (1969).6 Id. at 325.7 Id. at 331.8 Robert Olson Jr., Employment Discrimination: New Priorities in the Struggle for Black Equality,6 Harv. C.R.c.L. L. Rev. 20, 26-27 (1970).9 Id. at 26-27.10 ThnstaU v. Brotherhood of Locomotive FIremen & Enginemen, 323 U.S. 210 (1944).

BLACK PLAINTIFFS AND CLASS ACTION LAWSUITS 107tion. The Tunstall case arose under similar facts as Steele. Tom Thnstall was afireman, who like the plaintiff in Steele, suffered because of the union's amendmentto the collective bargaining agreement. As a result of the amendments,Thnstall was deprived of his seniority rights, removed from his job as a fireman,given more difficult work at a lower wage, and replaced as a fireman by a whitemember of the union. 11 This was typical of the kind of behavior exhibited towardblack employees in companies where they were gaining skills that would improvetheir economic status in American society. Some believe the economic disadvantageof blacks is directly attributed to racial discrimination in employment. 12Since the days of slavery, blacks in this country have been second class workers,mainly limited to the most unskilled, unattractive, and poorly paid occupations.Blacks traditionally have been under-represented among the ranks of professionals,managers, sales workers, craftsmen, and foremen. 13D. WHY EMPLOYERS DISCRIMINATEA. Differential Treatment of Black and White EmployeesUnderstanding a job description is essential to the growth of an employee whois trying to succeed in an employment atmosphere. However, blacks are oftennot prepared for the reality of employers discriminating against them in favor ofwhite employees when they are both part of an employment environment.Therefore, blacks often do not reach their full potential as employees. Severalreasons why an employer might prefer whites over blacks in an employment settinginclude racial prejudice of the employer, aversion of white employees toworking with black employees, customer dislike of dealing with black workers,higher costs of identifying a black individual who is productive as a white one,higher cost of going outside traditional recruitment sources which do not includeblacks, reasons based on criteria not related to production or race (e.g., nepotism),fear of adverse reaction from unions, and belief that whites are moreproductive. 14With this kind of racial climate existing in corporate America, it is understandablewhy many black employees have difficulty fulfilling their economic potential.This kind of behavior in the employment world can be construed asindicative of what keeps blacks from excelling in the corporate arena; it is behaviorexhibited toward blacks maliciously and in a discriminatory fashion that somepersons believe is designed to curb the advancement and development of blackAmericans in corporate America.11 J. Clay Smith and E. Desmond Hogan, Remembered Hero, Forgotten Contribution: CharlesHamilton Houston, Legal Realism, and Labor Law, 14 Harv. Blackletter J. 1,6-7 (1998).12 See Bell, supra note 3, at 740.13 Id.14 See Olson, supra note 8, at 33.

108 THE UNIVERSITY OF THE DISTRIcr OF COLUMBIA LAW REVIEWB. Denial of Raises and PromotionsEven when blacks are fortunate to receive positions in various companies,there is often a disparity in salary and wages between black workers and whiteemployees. In 1980, black men between the ages of 25-34 years old earned aweekly wage that was 12.6% less than that of their white counterparts, even whenthe two groups were matched in years of school completed, region of residenceand other measurable characteristics. Is Also, black females do not rise to highlevel professional and administrative positions at the same rate as their whitefemales co-workers. I6 This is a typical example of the kind of disparity that existsbetween black and white employees in companies. Oftentimes, the only recourseblacks have to remedy this discrimination is to pursue employment discriminationclaims against employers in order for their grievances to be taken seriously. Asindicated in the Steele and Tunstall cases listed earlier in the literature, blackplaintiffs have sought litigation as a means to address the employment discriminationissues that plagued them in their work environments. Both of these casesare examples where blacks were systematically denied promotions and becamevictims of retaliation at their jobs as a result of their litigation actions. A furtherdiscussion of other case law that shows how litigation was instrumental in helpingto rectify discrimination against black employees will be highlighted in the forthcomingsection.m. PROVING PATIERS OF EMPLOYMENT DISCRIMINATIONA. Filing an Employment Discrimination ClaimBefore an individual files an employment discrimination suit, it is critical torecognize if the individual is indeed a victim of job discrimination. Black employeesmust be aware of what constitutes employment discrimination before pursuinga claim that will be successful. Until the passage of Title VII of the CivilRights Act of 1964, blacks had no effective legal machinery for dealing with employmentdiscrimination. Prior to Title VII, most complaints of employment discriminationwere handled by administrative civil rights agencies. I7 Theseagencies often viewed themselves as mediators between employers and blackworkers. Agencies during this period simply failed to act as law enforcementagencies enforcing the legal rights of blacks. For these reasons, the public policyagainst discrimination, though established well before Tittle VII in a variety ofstate laws, executive orders, and court decisions, remained unenforced. Is15 Leroy D. Clark, The Law and Economics of Racial Discrimination in Employment by DavidA. Strauss, 79 Geo. L J. 1655, 1699 (1991).16 Id. at 1702.17 Bell, supra note 3, at 765.18 Id.

BLACK PLAINTIFFS AND CLASS ACTION LAWSUITS 109Prior to 1964, it was difficult for black Americans to have their employmentdiscrimination claims taken seriously because there was no concrete body of lawthat could assure them proper redress against an employer. In fact, Title VIImarked the turning point in employment discrimination law. Title VII establishedthe Equal Opportunities Commission (EEOC), an executive agency empoweredto receive, file, and investigate complaints of discrimination fromindividuals, and to facilitate complaints by voluntary means. Charges of discriminationhad to be filed with the EEOC within 90 days after the incident; wherelocal fair employment remedies were available, the plaintiff had to pursue thoseremedies first.19 Title VII provided that plaintiffs could bring an action in federaldistrict court after receiving a letter from the EEOC authorizing the suit. Also,Title VII barred discriminatory acts and practices by private employers or unionswith 25 workers or more, and which engaged in an industry affecting interstatecommerce.2° Although one may be armed with the necessary tools to pursue anemployment discrimination claim, such as the "right to sue letter" from theEEOC, a person must be cognizant of how to present a case at the trial level toultimately prevail against an employer who practices discrimination.B. Establishing a Prima Facie CaseThe key case that established the guidelines which employment discriminationsuits must be measured was decided by the U.S. Supreme Court in 1973. In Mc­Donnell Douglas Corp. v. Green,21 a black civil rights worker, Green, filed a complaintwith the Equal Employment Opportunity Commission (EEOC), chargingthat McDonnell Douglas's hiring practices were racially motivated. Green filed acomplaint with EEOC claiming a violation of Title VII of the Civil Rights Act of1964. EEOC found that McDonnell Douglas's rejection of the activist violatedsection 704(a) of the Act, which prohibits discrimination against applicants oremployees for attempting to protest or correct allegedly discriminatory conditions,but made no finding on claimant's allegation that the company violatedsection 703(a)(l), which prohibits discrimination in any employment decision. 22Green subsequently filed a suit in District Court which dismissed his section703(a)(l) claim because the EEOC made no finding concerning his section704(a)(1) claim against McDonnell Douglas. The United States Court of Appealsfor the Eighth Circuit affirmed the lower court's ruling on section 704(a)(l),but reversed with respect to Section 703(a)(1), holding that an EEOC determinationof reasonable cause was not a jurisdictional prerequisite to claiming a viola-19 Id.20 DERRICK BELL, RACE, RACISM, AND AMERICAN LAW 752, 765 (2000).21 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).22 Id.

110 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWtion of that provision in federal court. 23 The U.S. Supreme Court vacated theappellate court decision and determined that the complainant, has the burden ofestablishing a prima facie case. He can satisfy that requirement by showing that:(i) he belongs to a racial minority; (ii) he applied and was qualified for a job theemployer was trying to fill; (iii) though qualified, he was rejected; and (iv) thereafterthe employer continued to seek applicants with complainant'squalifications. 24The high court felt that Green had established a prima facie case at the lowercourt level and should be allowed to pursue a claim of racial discrimination undersection 703 (a)(l) on remand at District Court.25 The McDonnell Douglas caserelied on the concept of disparate treatment (cases where plaintiff must provethat defendant acted with discriminatory intent or motive) when determining ifGreen's firing was racially motivated. 26 Also, the U.S. Supreme Court set up athree-step process for distributing the burdens of proof between plaintiff and defendant.First, plaintiff has the burden of establishing a prima facie case thatcreates an inference of discriminatory motive. The burden then shifts to defendantto "articulate some legitimate, nondiscriminatory reason for the employee'srejection." Finally, if defendant meets its burden, plaintiff must be afforded "afair opportunity to show that [defendant's] stated reason for ... rejection [of plaintiffis] in fact pretext. 27 This divided analysis was intended to ensure that anemployer would not be held in violation of Title VII if its employment decisionwas lawful, and to preclude an employer from falsely asserting a pretext to hideits unlawful discrimination. The three-step analysis eases the initial, and oftenthe ultimate, burden on plaintiff. While the McDonnell Douglas framework requiresthat plaintiffs eventually prove discriminatory intent at the pretext stage, itassures potential plaintiffs that they need not immediately face the task of anticipatingand rebutting all the various reasons that an employer might give for itsapparent discrimination. 28Another way that an employee can focus on the discriminatory practices of anemployer is to attack the company under the disparate impact theory. In Griggsv. Duke Power CO.,29 the U.S. Supreme Court determined that black employeeswere not required to pass an intelligence test or possess a high school diploma asa condition of employment in order to transfer to other jobs at the company23 Id.24 [d. at 793.25 ARTHUR SMITH AND CHARLES B. CRAVER, EMPLOYMENT DISCRIMINTION LAW 119, 124(2000).26 Alisa D. Shudofsky, Relative Qualifications and the Prima Facie Case in Title VII, 82 Colum.L. Rev. 553 (1982).27 [d. at 554.28 See Shudofsky, supra note 26, at 554-555.29 Griggs v. Duke Power Co., 401 U.S. 424 (1971).

BLACK PLAINTIFFS AND CLASS ACTION LAWSUITS 111plant. The high court effectively reversed the appellate court ruling which agreedwith the lower court decision that there was no showing of discriminatory purposein the adoption of the diploma and test requirements. 30 The nation's highestcourt reasoned in the Griggs case that:"Title VII of the Civil Rights Act of 1964, requires the elimination of artificial,arbitrary, unnecessary barriers to employment that operate invidiouslyto discriminate on the basis of race, and if, as here, an employment practicethat operates to exclude blacks cannot be shown to be related to job performance,it is prohibited, notwithstanding the employer's lack of discriminatoryintent. ,,31In short, this meant that employers seeking to screen applicants through theuse of intelligence examinations or other tests disproportionately excluding minoritiesmust demonstrate that the tests are job-related or adopt other screeningtechniques that do not disadvantage minority applicants. 32Despite the ruling of Griggs, seven years later, the Supreme Court took a differentview: In Furnco Construction Corp. v. Waters,33 the high court ruled thatthe black bricklayers who sued the Fumco Construction Company were not victimsof racial discrimination. The bricklayers claimed that they were denied theopportunity of employment for particular jobs even though they were fully qualified.The court reversed the appellate ruling that the bricklayers made out aprima facie case under the McDonnell Douglas framework. As a result, it decidedthat the company's hiring practices were justified as a "business necessity"because these practices were required for the safe and efficient operation of thecompany's business. 34 The court also reasoned that statistics offered at trial bythe company were relevant in determining if the company maintained a raciallybalancedwork force; statistics could reveal motive and discriminatory practicesof the company.35In addition, the U.S. Supreme Court decided another case in 1993, St. Mary'sHonor Center v. Hicks,36 the decision of which was not partial to a black employeewho claimed he was victim of racial discrimination at the workplace. Inthe Hicks, plaintiff claimed he was unfairly demoted and discharged at a correctionalfacility where he worked as a correctional officer. He filed a Title VIIclaim in District Court, which determined that he had established, by a preponderanceof the evidence, a prima facie case of racial discrimination; but the defen-30 Id. at 424.31 Id. at 424.32 William I. Taylor, Brown, Equal Protection, and the Isolation o/the Poor, 95 Yale L. J. 1700,1712 (1986).33 Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978).34 Id. at 567.35 Id. at 568.36 S1. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

112 THE UNIVERSITY OF THE DISTRlCf OF COLUMBIA LAW REVIEWdant rebutted that presumption by introducing evidence of two legitimate,nondiscriminatory reasons for their actions?7 Also, the defendant effectively rebuttedthe plaintiffs claim that the reasons were pretextual. The lower courtruled that Hicks failed to carry his ultimate burden of proving that the adverseactions were racially motivated. The U.S. Court of Appeals for the Eighth Circuitset aside the lower court decision and concluded that Hicks was entitled tojudgment as a matter of law once he proved that all of the center's profferedreasons were pretexual. The U.S. Supreme Court reasoned that the appellatecourt erred in its ruling and claimed that St. Mary's production of nondiscriminatoryreasons, whether ultimately persuasive or not, satisfied its burden of productionand rebutted the presumption of intentional discrimination. 38In essence, the Hicks ruling effectively makes it difficult for a plaintiff to provethat he has been a victim of racial discrimination in the workplace. This decisionattempts to make the McDonnell Douglas framework irrelevant in disparatetreatment cases that assume the element of presumption is enough to win anemployment discrimination claim.C. Class Action Suit StatusThe ability to use litigation as a valuable tool to correct wrongs that have beencommitted against black employees in companies is something that has sustainedblacks throughout the years. Many blacks have been unafraid to take the plungeof suing corporations and companies that they wholeheartedly believe practiceracial discrimination. In 1970, six years after ntle VII was established (1964),roughly 350 employment discrimination claims were filed in the United States.However, 9,000 cases were reported in 1983 in this country?9 Since racial discriminationhas been found to be commonplace in many corporations in recentyears, some individuals have not only been filing individual suits against companies,but also have consolidated their suits with other employees in their companiesas well. Many have been filing what is known as "class action lawsuits"against corporations. In a class action lawsuit, one or more members of a groupserve as representatives to prosecute claims on behalf of a larger group. UnderRule 23 of the Federal Rules of Civil Procedure, a party may sue or be sued as arepresentative of a class if:(i) the class is so numerous that the inclusion of each class member individuallyis impracticable; (ii) there are questions of law or fact common to theclass; (iii) the claims or defenses of the representative parties are typical ofthe claims or defenses of the class; and (v) the representative parties will37 Id. at 502.38 Id. at 502-503.39 John J. Donohue III and Peter Siegelman, The Changing Nature of Employment DiscriminationLitigation, 43 Stan. L. Rev. at 985 (1991).

BLACK PLAINTIFFS AND CLASS ACTION LAWSUITS 113fairly and adequately protect the interest of the class. These four factors areoften referred to as numerosity, commonality, typicality, and adequacy.4oClass actions are commenced when one party to a litigation files a motion withthe trial court requesting permission (or certification) to proceed on behalf of aclass, and the court, in its discretion, grants the motion and certifies a particularclass (e.g., "all black applicants denied employment by the defendant employerbetween 1990 and 1997"). If the motion for class certification is denied, the partyor parties may proceed as individually-named litigants. 41 In Caridad v. Metro­North Commuter Railroad, 42 this case involved a group of 1, 300 African-Americanemployees who were denied an opportunity to receive class certification statusat the trial court level in its racial discrimination suit against Metro-NorthRailroad. However, the United States Court of Appeals for the Second Circuit,reversed the lower court's ruling because it believed the African American employeesmet commonality and typicality requirements for class certification. Ultimately,the case was vacated and remanded to the lower court. 43With the knowledge that lawsuits are a tool to attack the overt discriminationthat is widespread in corporate America, the number of employees filing federalclaims regarding discrimination in promotions based on race has nearly doubledsince 1990. With some major companies facing lawsuits by minorities (primarilyblacks) who claim advancement is stymied, experts believe too many people ofcolor are finding management positions out of reach.44 More than 5,000 claimswere filed in 2000 with the EEOC alleging discrimination in promotions, an increasefrom 3,208 claims filed in fiscal year 1990. EEOC also received 1,870claims of racial discrimination in hiring which was a decrease from 2,365 in1990. 45 See Table 1 for companies that had lawsuits filed against them by blackclass action litigants.40 Kauff, McQain & McGuire LLP, Recent Developments in Class Action Litigation of FederalDiscrimination Claims, at 1, (last visited Dec. 7, 2000) .41 [d. at 1.42 Caridad v. Metro-North Commuter Railroad, 191 F.3d 283 (1999).43 [d. at 283.44 Stephanie Armour, Minorities Say Job Advancement Blocked, USA TODAY, Oct. 31, 2000, atAI.45 Armour, supra note 44, at A-I.

114 THE UNIVERSITY OF THE DISTRICT OF COLUMBIA LAW REVIEWTABLE 1BLACK CLASS AcnON LAWSUITS AGAINST COMPANIESCompanyLockheed Martin Corp. (2000)***Microsoft Corp. (2000)**General Motors (2000)*Nissan Acceptance Corp. (2000)*National Broadcast Company (NBC) - (2000)****Nextel Communications (2000)*****Source: *WASHINOTON POST, Oct. 25, 2000; **ATLANTA-JOURNALCONSTITUTION, Dec. 6, 2000; •• *y AHOO NEWS, Ocr. 4, 2000;****AFRO-AMERICAN ALMANAC, Aug. 8,2000; *****USA TODAY,October 31,2000.IV. SETTLEMENT As A REMEDY OR RELIEFA. Texaco CaseIf an individual is confident that he or she has been a victim of blatant andovert discrimination, it is imperative that the individual consider pursuing aclaim. Litigation is a way that employees can seek redress in a courtroom andcompensate them for the hardships they have endured throughout their tenure asemployees at a discriminatory work environment. Being successful during trial isone way for employees to be properly compensated. Another option for employeessuch as black class action plaintiffs is to agree to settlement offers from corporationsimmediately before a trial is commenced or even completed. In 1996, theTexaco Inc. agreed to pay $176 million to 1,400 black employees who were part ofa class action lawsuit originally filed in 1994. The original plaintiff in the case, asenior financial analyst at the company in Texaco's Harrison, New York office,claimed she was denied chances for advancement, seminars and foreign travelwhile less qualified white employees-often people she trained-moved ahead ofher up the corporate ladder.46 This suit was abruptly settled after ten days ofintense negotiations once the disclosure of a secret recording of senior Texacoexecutives denigrating black workers and plotting to destroy incriminating evidencein the lawsuit became public. 47 The Texaco settlement in 1996 became thelargest award ever in a race class action lawsuit during that time. As a result ofthe settlement, Texaco was forced to compensate its employees financially andreshape its corporate policies. The agreements of the Texaco settlement arelisted as: (1) distribute cash payment to all plaintiffs who were a part of the lawsuit;(2) employees in the settlement must receive 10% raises; (3) establish a46 Thomas Mulligan, Texaco Settles Race Bias Suit for $176 Million, Los ANOELES TIMES, Nov.16, 1996, at At.47 [d.

BLACK PLAINTIFFS AND CLASS ACfION LAWSUITS 115"task force" designed to evaluate all existing employment policies and practicesat Texaco; (4) develop a company-wide diversity and sensitivity program; and (5)review and revise Texaco's recruitment, hiring and promotion practices. 48The Texaco settlement is a classic example where a company known to have"deep pockets" felt it was best to settle the suit before the negative publicity hada serious effect on the company financially. Was Texaco's willingness to settle anacknowledgment that discrimination existed at the company, or was it a way tocurb the damaging public relations that resulted from the suit? Whatever Texaco'smotive for settling the suit, it was a resolution that gave many black plaintiffsthe vindication they desperately sought-and confirmed their belief that theywere indeed victims of racial and employment discrimination. See Table 2 andTable 3 for additional black class action lawsuits where blacks received large juryawards and settlements from companies who were sued for racial and employmentdiscrimination.TABLE 2CLASS AcnoN SETTLEMENTS OF RACIAL BIAS SUITSCompanyCoca-ColaTexacoShoney'sWinn-Dixie StoresCSX TransportationDate of Settlement20001997198919991999Source: WASHINGTON POST, November 17, 2000.Amount Including attorney's fees$192.5 million$176.1 million$132.5 million$33 million$25 millionTABLE 3BLACK CLASS AcnoN LAWSUITS (SETILEMENTS & JURY AWARDS)CompanyCircuit City (1996)***Boeing Company (1999)****Amtrak (1999)*****FDIC (2000)**Interstate Bakeries Corp. (2000)*Amount$288,700 (Jury)$15 million (Settlement)$8 million (Settlement)$14 million (Settlement)$121 million (Jury)Source: *AFRo-AMERICAN ALMANAC, Aug. 8, 2000; **NEW NATION NEWS, Nov. 23,2000; ***CEN­TRAL OHIO SOURCE, Dec. 1996; ****NEWSWIRE, Jan. 22, 1999; *****THE CALIFORNIA ADVOCATE,Aug. 13, 1999.B. Coca-Cola DecisionIn 2000, the Coca-Cola Company settled a lawsuit with African Americanworkers for $192.5 million. This settlement surpassed the Texaco case which gave48 [d.

116 THE UNIVERSITY OF THE DISTRlcr OF COLUMBIA LAW REVIEWblack plaintiffs $176 million in 1997 for their race discrimination class action. 49The settlement covers a class defined as salaried African American employees inthe United States who worked for Coca-Cola from April 22, 1995 to June 14,2000. A large amount of the $192.5 million settlement will establish a compensatorydamages fund to resolve claims of emotional distress, hostile environmentand non-wage related disparate treatment. The average class member will get$40,000, while the four original plaintiffs will receive no more than $300,000 each.A sum of $23.7 million will be placed in a back pay fund. Another $43,5 millionwill be used for salary adjustments over 10 years, and $10 million will go toward apromotional achievement fund. Finally, $36 million will be used to implementchanges in the human resources program and $20.6 million will be used for attorneysfees. 50 The agreement covers approximately 2,200 black salaried employeesand former employees who worked for the company.51 One of the plaintiffs, asenior, information analyst for the company in Atlanta, Georgia-originallysought legal advice in 1998 after a manager insulted her by using a racist remark.She reported the incident to the company's equal opportunity manager, who tookno immediate action. Another black plaintiff joined the suit after watching alleight of her African American colleagues leave the marketing department whereshe was assigned employment duties. She believed that her managers withheldpay raises and promotions she deserved. 52The Coca-Cola settlement is a typical example of where a company agrees topay a settlement but admits no wrongdoing. Coca-Cola was initially sued fordiscriminating against black salaried employees in pay, promotions, and evaluations,but the company denied the allegations. Does Coca-Cola represent a companythat does not want to admit to fostering a work environment that toleratesracial discrimination? Coca-Cola may not have an overt policy of discrimination,but its settlement is among a growing number of such agreements that go beyondmonetary compensation by forcing companies to make systematic changes inmanagement and pOlicy.53 Coca-Cola's changes in policy are to: (1) organize aseven-member task force to review how Coca-Cola pays, promotes, and evaluatesAfrican Americans; (2) hire two psychologists who will review the company'shuman resources policies; (3) establish a 24-hour complaint hotline; (4) hire a49 BARNEY TURNEY, COCA-COLA AGREES TO PAY $192.5 MILLION, MAKE HR POLICYCHANGES TO SETTLE LAWSUIT, BUREAU OF NATIONAL AFFAIRS (BNA), EMPLOYMENT DISCRIMINA­TION REpORT 703, 703-04. (Nov. 29, 2000).50 [d. at 703.51 Sarah Schafer, Coke to Pay $193 Million in Bias Suit, WASHINGTON POST, Nov. 17,2000, atAl.52 [d. at A16-17.53 [d. at 17.

BLACK PLAINTIFFS AND CLASS ACfION LAWSUITS 117ombudsmen to investigate complaints; and (5) consider more blacks for jobs internallyto meet diversity goals. 54As Table 1 indicates, there are other lawsuits that have been initiated by blackplaintiffs involving race discrimination class actions, which may lead some to believethat employment discrimination has reached epidemic proportions in corporations.The Lockheed Martin Corporation is the latest company to be sued byAfrican American workers. In December of 2000, the EEOC asked a federaljudge in Atlanta to allow the agency to become a party to the lawsuit. The lawsuitwas originally filed by eleven workers at Lockheed Martin's military factoryin Marietta, Georgia. The suit alleges that the company discriminated in hiringand pay and tolerated a hostile work environment that included racist languageand the open display of racist material left in a black employee's work space. 55In sum, if the pending class action lawsuits against companies result infavorable jury awards or settlements for blacks, will this relief or success helpthem in their work environments in the future. In other words, are diversitytraining programs, task forces, sensitivity workshops, and financial compensationenough to eliminate systematic and blatant discrimination in corporate America.Can a revised company policy change the "mindset" of individuals intent onprohibiting the advancement of black employees and maintaining an unofficialracial policy that excludes blacks from progressing economically in a company.CONCLUSIONDespite the existence of impediments that deny blacks the opportunity to advancein the employment world, they have continued their quest to receive fairtreatment in the economic arena. Systematic and overt discrimination are devicesthat are used to inhibit the development of blacks in the corporate world,but the perseverance of black workers throughout the years has enabled them togain major legal victories. It has been documented in literature that sophisticatedtools have been used to prevent blacks from ascending up the corporate ladder.Case law has been presented to give an accurate account of the widespread discriminationthat is manifested in corporate America. Some might argue thatcompanies do not set out to deliberately discriminate against black employees.However, the material in the literature indicates a contrary opinion. Whether itis inadvertent discrimination or a company policy designed to exclude blacks, aclimate that prohibits blacks from achieving economically does exist in somecompanies.The material also highlights that qualified and professional blacks do exist inall realms of corporate America, but they are not exempt from being victims of54 See Tumey, supra note 49, at 703-704.55 Greg Schneider, EEOC May Join Lockheed Case: Private Suits Accuse Company of RacialBias, WASHINGTON POST, Dec. 6, 2000, at At.

118 THE UNIVERSITY OF THE DISTRICf OF COLUMBIA LAW REVIEWemployment discrimination. The Texaco and Coca-Cola cases are clear-cut exampleswhere professional blacks were victims of an adverse working environmentthat was not conducive to their best interest and professional development.Whether blacks hold positions at the entry or management level in companies,competent black workers are commonplace in the corporate world. In fact, manyhave endured poor working conditions throughout the years because they do notwant to be perceived as disgruntled employees. Many have withstood hostileworkplaces because they were concerned about job security and losing their economicbase. One key reason some blacks initially tolerate discriminatory behavioris because they want to continue to support themselves and their families.However, blacks have not been reluctant to pursue claims in recent years. Theinflux of race discrimination class actions at Texaco, Coca-Cola, and LockheedMartin companies is an indication that blacks are serious about seeking redressfor past discrimination and are truly concerned about improving their workingconditions.It is not acceptable for blacks to have to tolerate employment atmospheresthat are discriminatory. It is unfortunate that blacks have to seek litigation as aviable option when a work environment becomes unbearable. Although blackAmericans may possess the ability to endure racial discrimination in the workplace,they want to be treated as employees who simply aspire comparable payfor comparable work and production. They represent employees who would nothave to pursue legitimate racial discrimination lawsuits if they were treated fairlyin the corporate arena. Blacks simply want to benefit from the same set of rulesthat reward nonblack employees (primarily white employees) in wages, raises,benefits, assignments and promotions in an employment setting. In short, blacksfeel that if they are producing on the job, they should be adequately compensated,both professionally and financially.