The brief was filed Monday (PDF) in the Court of Appeals for the Eleventh Circuit, which is considering the constitutionality of the law after a federal judge upheld key provisions of the law in September. “HB 56 is nothing less than a modern-day incarnation of some the most abhorrent types of institutionalized discrimination to have emerged in the history of the United States,” read the brief.

The brief argues that HB 56 encourages or even forces Alabama law enforcement, schools, public offices, and ordinary citizens to discriminate based on race, ethnicity and national origin. In the context of Alabama’s “long and disturbing history of civil rights violations,” the brief compares HB 56 to Alabama’s Jim Crow laws that “required law enforcement officials to enforce discriminatory laws, and criminalizing the exercise of fundamental human liberties.”

The law excludes children of color, particularly Latino children and children of other immigrant communities, from public schools, mandates racial profiling, and permits the detention of U.S. citizens and lawfully present immigrants if they fail to establish their immigration status to the satisfaction of local law enforcement.

HB 56 threatens public safety by eroding relationships between law enforcement and immigrant communities, resulting in underreporting of crime, especially hate crimes. It also threatens the personal liberty and property for anyone that may appear or sound foreign.

The legislation represents a form of legalized racism that threatens the Latino community in Alabama most directly, but also impacts all people of color, including Middle Eastern and Asian Americans.

In the gathering, “Fighting McCleskey: A Tale of Two Theories,” the legal questions discussed include whether implicit and/or institutional bias theories could be used to support anti-death penalty litigation; if litigators should continue to utilize social science research to advance this work; and how an anti-discrimination approach could be useful in overturning the intent element of McCleskey. In the second decade of our work, EJS is tackling our biggest challenge, dismantling the “intent doctrine” as enunciated in Washington v. Davis.

Equal Justice Initiative (EJI), a renowned non-profit organization that provides legal representation to indigent defendants and prisoners who have been denied fair and just treatment in the legal system, hosted the meeting. In addition to the EJS legal team, attendees at the meeting included Bryan Stevenson, executive director of EJI, and other seasoned death penalty litigators.

In McCleskey, a review of over 2,000 cases illustrated that the death penalty was assessed in 22 percent of cases involving black defendants and white victims, and just one percent of those involving black defendants and black victims. Application of the death penalty was 4.3 times higher when the defendant was charged with killing a white victim.

The U.S. Supreme Court affirmed that, without evidence of conscious, deliberate bias by government actors, evidence of racial sentencing disparities in the death penalty was, “an inevitable part of our criminal justice system.”

Outside of the convening, we visited the King Memorial Baptist Church, where Dr. King and others organized the Montgomery Bus Boycott. We stood where Rosa Parks stood right before boarding the bus. We walked down Commerce Street tracing the path that kidnapped Africans took as they left the boats that had just come up the Alabama River. We visited the place where these terrified and angry men, women, and children were sold into bondage.

We returned to California even more committed to the fight for equality and justice sparked decades ago.

Allison Elgart, EJS's new Supervising Attorney, at the historic site where Rosa Parks protested bus segregation and sparked the Montgomery Bus Boycott. Allison was with Eva Paterson and the EJS legal team recently at a convening of anti-death penalty advocates in Montgomery, Ala.

The Equal Justice Society welcomes Allison Elgart as our new Supervising Attorney, effective October 4. Allison was formerly an associate in the San Francisco office of Lieff Cabraser Heimann & Bernstein, LLP where she primarily focused on consumer protection and employment class action litigation.

“We are delighted that Allison is joining us here at EJS,” said EJS President Eva Paterson. “She has all the qualities we need to move us forward in the area of law and policy and continues the tradition of excellence started by her predecessors Susan Serrano, Kimberly Thomas-Rapp, and Reggie Shuford.”

“I am thrilled to become part of the EJS community and to have the opportunity to focus on racial justice litigation and advocacy,” said Allison. “I am looking forward to collaborating with others doing this crucial work and to see where EJS can have an impact to move us towards the goal of overturning the intent doctrine.”

Allison previously clerked for the Hon. Robert P. Patterson, Jr., United States District Court, Southern District of New York. She was also a summer law clerk for Public Advocates in San Francisco, where she worked on education and housing litigation. Before law school, Allison worked as a Health Advocacy Fellow for the Medicare Rights Center in New York City, where she represented clients in appeals and coordinated Medicare policy trainings and the CityNET program to train professionals at community-based organizations serving underrepresented populations.

She was also an Immigration Legal Intern for AYUDA, Inc., of Washington, D.C., where she was responsible for managing a personal caseload of immigration cases, including family reunification, political asylum, naturalization, battered spouse waivers, and VAWA petitions.

Allison is a 2005 graduate of Harvard Law School, where she was the Editor-in-Chief of the Harvard Civil Rights-Civil Liberties Law Review and worked as a student attorney at the Harvard Legal Aid Bureau, representing low-income clients in housing, domestic, immigration and benefits cases.

SB 490 would abolish the death penalty and instead make the maximum punishment life without the possibility of parole. In June, before this bill went to the Assembly Committee on Public Safety, Equal Justice Society (EJS) wrote a policy letter in support of this bill’s overarching goal of ending the death penalty because of its fiscal importance and impact on racial justice.  While we have problems with the notion of permanent imprisonment, this bill is a step in the right direction.

The bill was approved by the Assembly Committee on Public Safety earlier this month and it is now moving to the Assembly Committee on Appropriations and, hopefully, to the floor before the end of the legislative term. Several polls show that there is support for ending the death penalty.

EJS knows this bill is necessary because it will save taxpayer dollars and prioritize funding where it is most vital. SB 490 will save taxpayer dollars by eliminating the cost of the death penalty system. A recent study by Ninth Circuit Judge Arthur Alarcon and Paula Mitchell found that it costs California an estimated $184 million per year to keep more than 700 people on death row pointing out that only 13 criminals had been executed in the last 33 years.

California cannot continue to fund a lengthy and expensive process in these dire financial times. SB 490 will allow California to save $1 billion in five years. This savings will allow California to spend money in areas where it is most vital. The County of Los Angeles has denied overtime compensation to homicide investigators and last year over $50 million was cut from the Victims Compensation Fund. The City of Oakland laid off police officers while 45 percent of homicides statewide continue to be unsolved. Spending money on the death penalty instead of investing in police officers, investigators, and courts, is a bad use of our limited funds.

Furthermore, this bill furthers a vision of ensuring fair and consistent application of the law without racial bias. Defendants are three to four more times likely to be sentenced to die in cases where the victim is White than in cases where the victim is African American or Latino. Also, African Americans and Latinos are over-represented on death row. Spending money on a system that perpetuates racial discrimination denies Californians the right to a fair and consistent application of our laws and criminal sentences. Eliminating the death penalty is a necessary step towards ensuring that Californians are not executed based on racial biases and inconsistent decision making.

SB 490 will save money, prioritize community safety, and improve our criminal justice system. SB 490 is necessary and will make California a stronger state.  We encourage you to voice your support and urge legislators to pass SB 490.

The Court has instead become increasingly damaged, especially with landmark decisions such as in Dukes v. Wal-Mart, which told women that Wal-Mart is above the law. We only have to look back to Bush v. Gore, Citizens United, and numerous other cases to see that our highest court in the land does not mete out “Equal Justice Under Law.”

If the Equal Justice Society and its allies are to accomplish our mission of reclaiming the 14th Amendment and its protections against discrimination, we must be able to argue our cases before impartial justices who do not reflexively rule against the interests of average Americans.

Let’s connect the dots:

“Wal-Mart Gets a Free Pass For Bias From the Supreme Court” — “The Supreme Court issued its decision in the Dukes v. Wal-Mart sex discrimination case [Monday], a frustrating ruling that doesn’t challenge the existence of bias, but that exempts the company from accountability” wrote Rinku Sen on Colorlines.com. “The case highlights the difficulty of addressing discrimination at a time when intentional bias is both illegal and socially unacceptable, and yet obvious gender and racial gaps remain.”

Our friends at the Impact Fund and Equal Rights Advocates are continuing the fight. But like the Citizens United decision, the Dukes decision demonstrates that the Supreme Court will favor corporations over people and business interests over civil rights.

Eva Paterson ties together the problems with the courts. — EJS President Eva Paterson joined Nan Aron (Alliance for Justice), U.S. Senator Sheldon Whitehouse, Dahlia Lithwick (Slate) and Carl Pope (Sierra Club) on a panel organized by Alliance for Justice at last week’s Netroots Nation to address the growing influence of corporations within the American judicial system, particularly in the Supreme Court. Watch the video.

And on top of the high court’s pattern of decisions, we see growing concern over ethics.

“Clarence Thomas participated in a secret political fundraising event put on by the Koch brothers to fund Tea Party infrastructure groups.” — A June 19 exposé in The New York Times detailed Justice Clarence Thomas’s ties to a conservative donor, his lack of disclosure in receiving gifts, and donations given to the Justice’s wife to fund a Tea Party-related group. From the NYT article: “The code of conduct is quite clear that judges are not supposed to be soliciting money for their pet projects or charities, period,” said Arn Pearson, a lawyer with Common Cause. “If any other federal judge was doing it, he could face disciplinary action.”

In April, Bob Egelko of the San Francisco Chronicle reported that Justice Antonin Scalia’s son was a partner in the firm representing Wal-Mart. Egelko describes the convoluted way in which Justice Scalia was able to escape an obligation to recuse himself from the case, but it demonstrates the need for more attention to the matter of judicial ethics.

It’s time that we work together to restore the Supreme Court to a level playing field with impartial referees so that our efforts to reclaim the 14th Amendment and the Constitutional protections against discrimination can someday be fairly heard.