A recent decision handed down by the U.S. Ninth Circuit Court of Appeals raises this important question: Can victims of contemporary forms of discrimination and disparity find justice in our courts?

The court ruling came in the case of Sylvia Darensburg, an African-American mother of three who lives in East Oakland. Every day, along with tens of thousands of low-income African-American, Asian and Latino bus riders in the Bay Area, Sylvia experiences the reality of transit inequality.

According to the case, Darensburg v. Metropolitan Transportation Commission, Sylvia relies on the AC Transit bus system as her primary means of transportation to her job during the day and to college classes at night. She endures long waits for the two buses she needs to take, with each trip taking an hour or more each way. On her way home at night, she has to walk 12 blocks from the nearest bus stop in her neighborhood.

Sylvia is not alone in making such an arduous journey—almost 80 percent of AC Transit riders are people of color, and over 70 percent have incomes below $30,000. Nearly 60 percent are entirely dependent on public transit. Click here to read the article.

The lawsuit, a class action filed in the U.S. District Court for the District of Arizona, challenges the constitutionality of this recently passed law on the grounds that it invites the racial profiling of people of color, violates the First Amendment and interferes with federal law.

The amicus brief argues that an injunction is justified on three principal grounds.

First, SB 1070 will result in discrimination against communities of color. Although the statute was written seemingly to exclude the possibility of racial profiling, in practice, there is no question but that this law will lead to heightened and disproportionate police scrutiny of minorities. Because Mexico is the nearest border, Latinos especially will be targeted under SB 1070.

Second, this bill threatens public safety in Arizona. If enforced, it will breed resentment and distrust of the police in communities of color. Fearing immigration inquiries, communities of color are very likely to report crime less, making their neighborhoods increasingly unsafe. Moreover, the under-reporting of crime in minority communities will render them even more vulnerable to hate crimes.

Finally, the bill, ostensibly designed to reduce crime, simply does not justify the means. American history is sadly littered with numerous statutes aimed at excluding certain minority groups from the benefits, rights, and liberties granted to the majority. The courts have struck down those laws for over 150 years. SB 1070 is in keeping with this sordid past and must also be struck down.

The state Senate Public Safety Committee yesterday approved a bill proposing changes in the criminal justice system to ensure that no one is sentenced to die because of race or ethnicity.

Senate Bill 1331, the “California Racial Justice Act,” introduced on Feb. 19 by Sen. Gilbert Cedillo (D-Los Angeles), is modeled after similar legislation already enacted in Kentucky and North Carolina. The Act seeks to remedy a defect in the criminal justice system where the race or ethnicity of the defendant, the victim or the jurors may skew how the death penalty is applied.

Five senators voted in favor of moving the legislation forward: committee chair Sen. Mark Leno, bill author Sen. Gil Cedillo, Sen. Loni Hancock, Senate President pro Tem Darrell Steinberg and Sen. Roderick Wright.  Sen. Dave Cogdill and Sen. Bob Huff voted in opposition. The bill, with amendments, will be re-referred to the Senate Committee on Appropriations.

EJS staff attorney Sara Jackson and Aundre Heron of California Crime Victims for Alternatives to the Death Penalty were among those testifying in support of the bill.

“If California continues to impose the death penalty, it is vital that we ensure that the justice system weighs all factors in a case and that no one is sentenced to die because of the race or ethnicity of the individuals involved,” said Sen. Cedillo. “The Racial Justice Act would create a procedure for the court to determine whether race was a significant factor in the decision to seek or impose the death penalty in each case.  Procedural hurdles that prevent a full and fair hearing based on racial bias should be eliminated to ensure the integrity of our justice system.”

Research shows that the death penalty is not applied fairly in California. A defendant is three or four times more likely to be sentenced to die in cases where the victim is white than in cases where the victim is African American or Latino. Meanwhile, murder cases in which the victim is African American or Latino often remain unsolved. African Americans have long been over-represented on death row. In recent years Latinos have increasingly been sentenced to death. One California prosecutor testified that it was standard policy in his office to exclude African American women from juries in death penalty cases.

For more information, visit http://equaljusticesociety.org/law/rja.

“Dead Latinos” by José R. Sánchez (January 2, 2010)

When does one dead Hollywood actor trump another? When does one fierce dead organizer against social injustices trump another? In fact, when does a dead chimp responsible for a hideous attack catapult himself above the life of a dead Mexican anthropologist with over 150 books and articles filled with archaeological and cultural studies about Mayan civilization? For The New York Times the answer seems to be whenever the second option is a Latino.

Travis the chimp was one of the few fortunate deceased to get star billing in the New York Times 2009 annual issue devoted to the passing of important people. Travis, you may remember, was the Connecticut chimpanzee, raised by a woman in Stamford, who was killed after he mauled the face off of his caretaker’s friend. This annual Times compilation included twenty-three essays on this year’s deceased. Like in past years, not one single Latino made it onto this lamentable list of the departed, famous and not-so-famous.

Many Latinos died this year, arguably many of them having led interesting and notable lives. But they apparently were not interesting enough for The New York Times. This newspaper highlighted the death of Karl Malden but not Ricardo Montalbán. The latter was the debonair path-breaking Mexican movie and television star, best known for his roles in the Star Trek series and movie and his commercials for promoting the “soft, Corinthian leather” in Chrysler Motors car seats.

The Times also wrote about the death of Crystal Lee Sutton, a fierce labor organizer in the South. But it ignored the death of Esther Chavez, a Mexican accountant who was one of the first to discover a pattern of murders in the 1990s against Mexican women working in U.S.-owned factories in border cities. Chavez helped to draw public attention and government prosecution against men who kidnapped young Mexican women off the streets, and raped and killed them with impunity. Her advocacy led the Inter-American Court of Human Rights to rule that Mexico had violated the human rights of women.

The Times also wrote about Robert Rines, an MIT scientist who spent most of his life pursuing evidence to prove the existence of the Loch Ness Monster. It ignored Dennis deLeon, a former New York City human rights commissioner, who created the premiere Latino advocacy group against AIDS. A Mexican American, deLeon created the Latino Commission on AIDS in 1994 and made it into a very effective tool against the spread of AIDS in the Latino community.

Why should we care that the Times ignored so many of Latinos in death? Some say this slight is one more example of the invisibility Latinos experience in life in the U.S. Death, apparently, does not redeem the living. Some Latinos, like Montalbán and deLeon, did get obituaries in the Times’ daily paper at the time of their death.

These annual compilations are done for many, often valid, editorial reasons. Some of the people the Times chose to celebrate led unusual lives, enough to have books or movies done about them. The Times also specifically selected each author to write these obit articles. Some were Times writers while others came from outside the paper. Who they chose to write about sprung from their individual “passions, quirks and curiosities” as writers and editors. The Times, in that sense, did not attempt to provide a comprehensive listing. All of this, however, simply underscores an even more troubling reality for Latinos. It’s one thing to be invisible, to not be seen; it is quite another to be in plain sight and yet not spark much interest or curiosity from others.

Public recognition of the dead provides a rough indication of the difference that person made in life, how much they were able to change the way others thought, behaved, or felt. Rines, the scientist who spent a large part of his life chasing the Loch Ness monster never found her, at least not conclusively. He inspired others by his quixotic efforts, however. He pushed the limits of how much we know and how much faith is warranted in the myth of her existence.

Omitting Latinos from this kind of recognition carries a message — that Latino lives do not really matter and did not have an impact. Is this a legitimate conclusion? The Times also omitted any recognition of Canadians, Jamaicans, Muslims and many others. But they did include two African Americans, Naomi Sims the model, and Reverend Ike, the irrepressible minister who built a church based on greed and hope. They also included a Trinidadian, the chili restaurant owner Ben Ali. Are these choices the product of simple editorial decisions, the play of curiosity, or pure whimsy? Are these news sources simply responding to audiences who have little interest in Latinos?

Latinos, obviously, did make a difference in this world before they passed on. We don’t need the Times to tell us so. But do we need the Times to tell others? How much do other Americans know about Latinos, the “fastest growing minority group” in the country? The Times treatment of Latino deaths is symptomatic of a wider neglect of Latinos in the media. Most mainstream newspapers and magazines also systematically ignored Latino accomplishments in their end-of-year appraisals.

The Chicago Tribune’s list of notable deaths in 2009 contained two Latinos out of 104. This included Mercedes Sosa, the Grammy Award winning Argentinean singer, and Alex Arguello, the Nicaraguan boxer. If we wanted to be generous, we could give them a third in Gidget, the Taco Bell dog featured in their commercials. The Los Angeles Times, meanwhile, listed about 120 notable deaths, only 3 of which were Latinos. This included Arguello, Montalbán and Ismael Valenzuela, the Mexican horse jockey. One last example is the Baltimore Sun. It listed only Montalbán, Rafael Antonio Caldera, the two-time Venezuelan president, as well as the baseball manager Preston Gomez, among the 134 notable deaths in 2009.

The wide reach of this neglect is probably driven by the current media structure. Most newspapers in the U.S. are part of a handful of media monopolies that share the same sources of information or rely on syndicated sources like the Associated Press. In this vein, the AP listed only Montalbán among the 91 notable deaths it chose to feature in 2009. Five or six media conglomerates control the majority of newspapers in the United States. Editorial decisions, thus, tend to accumulate and spread with this kind of centralization. Most of the end-of-year reviews of the deceased were simply replicated by each newspaper in the chain. Recent research confirms this disturbing reality.

The Project for Excellence in Journalism and the Pew Hispanic Center reported recently that in one six-month sample period only “2.9% of the news content studied contained substantial references to Hispanics.” Most of that coverage was focused on the nomination of Sonia Sotomayor to the Supreme Court. Otherwise, the media attention focused on Latinos only in the context of discussing issues like immigration and the recession. Clearly, a population that is now almost 16 percent of the population deserves more widespread and direct media attention focused on Latino lives and accomplishments.

The complaint here is not just about recognition and publicity. It is, to a great extent, also about power. Nothing happens simply because any one group or person has taken action. The world does not function so linearly. The success of health care reform or the results of the 2008 elections have many contributors. A group that is either not seen or that draws little interest will find its contributions minimized or dismissed. But this is about power in an even more important way.

I believe that any success at influencing or changing how others think, behave or feel depends directly on our ability to offer something that others value. Those who attribute power to objects like money or weapons can’t easily explain why these things sometimes fail to deliver power. The rich don’t always get what they want and, historically, much poorer-equipped opponents have often defeated the largest and best-equipped armies. Vietnam for the U.S. and Afghanistan for the U.S.S.R. are the best examples of the latter. The “War against Terrorism” may, eventually, prove to be another.

Power is a transaction, an exchange between parties in which each side has input. This is true no matter the situation. A mugger can get me to turn over my valuables only because my health and life mean so much more to me than my watch and money. The key here is that the threat of assault gets victims to move only because I, like the vast majority of us, fear getting hurt or killed. When that is not the case, when I am reckless or suicidal, for instance, the mugger’s threat often falls flat. The mugger’s attempt to extract valuables from me then gets stalled, jeopardized, and, possibly, defeated. I may get killed but the mugger will have failed to influence my behavior.

I cannot teach my students or change the way they think unless they want knowledge or grades or something else from me. I cannot influence how an elected official decides policy issues unless I can provide the votes, money or information they need. The ability to influence becomes extremely difficult, however, if the others around me do not see me or have no interest in me when they do. The exclusion of Latinos from the list of notable deaths reflects a community whose life remains lived apart from the main cultural, economic, and political currents of this society.

Latinos lag behind other groups in voting rates, average age, high school graduation, college attendance, employment rates, corporate and professional employment, income, housing conditions, two parent families, and residential integration. These conditions not only produce deprivations and obstacles to individual mobility. They also produce a community that still lives, despite all the progress, largely apart from the rest of society. This life apart results in very limited opportunities for Latinos to develop power with and influence other sectors U.S. society.

The neglect of Latinos in death is, thus, a reflection not just of how much Latinos are neglected in life but also of how few opportunities they have for power while alive. The Times is, thus, justified to omit any Latinos from its annual “How They Lived” magazine compilation. After all, it would be hypocritical to pay attention in death to a group that they and society have mostly ignored, overlooked, dismissed, and brushed off in life.

José Ramon Sánchez is Associate Professor of Politics and Chair of Urban Studies at Long Island University – Brooklyn; he is also Chair of the Board of the National Institute for Latino Policy, Inc. He is the author of “Boricua Power: A Political History of Puerto Ricans in the U.S.” (2007) and co-author of “The Iraq Papers” (2010). He can be reached at jose.sanchez@liu.edu.

(Tom has been an extraordinary ally and supporter of EJS for many years. We congratulate him and wish him much success in returning to MALDEF.)

Since August 2005, Saenz has served as Counsel to Mayor Villaraigosa and as a member of the Mayor’s four-person Executive team. Saenz has helped to lead the Mayor’s legislative effort to change the governance of Los Angeles Unified School District (LAUSD) in order to secure a quality education for all students in Los Angeles and has recently served as the Mayor’s lead liaison on labor negotiations as the City strives in partnership with workers to address its serious financial situation.

“We could not ask for a better civil rights leader than Thomas Saenz to take the helm of MALDEF at this critical time,” said Patricia A. Madrid, Chairman of the MALDEF Board of Directors and former New Mexico Attorney General. “The Latino community is currently facing a drastic rise in hate crimes and witnessing an explosive rebirth of extremist anti-immigrant rhetoric and measures that adversely affect all Latinos. A highly respected attorney and community leader, Thomas brings a wealth of legal expertise and dedication to civil rights causes that fundamentally define the future of Latinos. We are looking forward to a great future under his leadership as we work together to advance the mission of MALDEF,” Madrid added.

“Tom Saenz has been a trusted advisor who understands the importance of public service and working on behalf of those in need,” said Los Angeles Mayor Antonio Villaraigosa. “His zealous leadership, legal prowess and counsel have helped diversify our body of City commissioners, provide living wages for our City’s workers, and demand a quality education for every child in Los Angeles. I thank Tom for his devoted service to the City of Los Angeles and wish him all the best in his new endeavor. MALDEF is not only inheriting a brilliant legal mind, but also a passionate and committed champion of civil rights.”

Saenz had previously served as MALDEF’s lead counsel for 12 years. During that time he successfully challenged California’s unconstitutional Proposition 187 and led numerous civil rights cases in the areas of immigrants’ rights, education, employment, and voting rights. Saenz achieved several victories against ordinances unlawfully restricting the rights of day laborers, served as lead counsel in the 2001 challenge to California’s congressional redistricting, and initiated the employment discrimination lawsuit resulting in a $50 million settlement with Abercrombie and Fitch. Saenz was also the lead drafter of the Amicus brief on behalf of Latino organizations supporting affirmative action in the Supreme Court case, Grutter v. Bollinger.

Saenz said he is looking forward to the new challenges and opportunities. “Throughout its 40-year history, MALDEF has been a national leader on all legal and policy issues affecting the Latino community. I look forward to leading a very strong MALDEF staff in successfully addressing the next set of challenges facing what is now the largest minority group in this country, a group whose progress is essential to our nation’s success,” Saenz stated.

Prior to joining MALDEF early in his legal career, Saenz clerked at both the federal district court and the U.S. Court of Appeals for the Ninth Circuit after graduating summa cum laude from Yale University and receiving his Juris Doctor from Yale Law School.

“Tom Saenz is an outstanding choice, he represents an extensive and celebrated record as a champion for civil rights and social justice. Throughout his career as Chief Counsel to Mayor Villaraigosa and as legal counsel for MALDEF, Saenz has proven to be a cornerstone for legal activism in our country,” stated Wade Henderson, President and CEO, Leadership Conference on Civil Rights (LCCR). “I can think of no better leader to take on the challenge of continuing the Mexican American Legal Defense and Educational Fund’s nationwide movement for equality and justice.”

“MALDEF’s work is now more important than ever before. Tom has spent his professional life serving as a champion for civil rights and social justice. His legal career has been devoted to protecting the people’s civil and constitutional rights. His lawsuits overturned local ordinances banning day laborers from seeking employment and he will lead the fight to ensure that the promises of justice and equality are a reality for all Americans,” stated Dolores Huerta, Co-founder of United Farm Workers of America and President of the Dolores Huerta Foundation.

Saenz has an extensive and celebrated background.

At the beginning of August 2005, Thomas A. Saenz became Counsel to the Mayor of the City of Los Angeles, where he serves as a member of Mayor Antonio Villaraigosa’s executive team and provides legal and policy advice to the mayor. Previously, Saenz practiced civil rights litigation at the Mexican American Legal Defense and Educational Fund (MALDEF), a national organization dedicated to securing and promoting the civil rights of Latinos in the United States, where he served as Vice President of Litigation. As Vice President, Saenz oversaw MALDEF’s efforts nationwide to pursue civil rights litigation in the areas of education, employment, political access, immigrants’ rights, and public resource equity.

Saenz was born and raised in southern California. He graduated summa cum laude from Yale University, and he received his law degree from Yale Law School. Saenz then served as a law clerk to the Honorable Harry L. Hupp of the U.S. District Court for the Central District of California, and to the Honorable Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit.

Saenz joined MALDEF as a staff attorney in 1993; he became Los Angeles Regional Counsel in 1996, National Senior Counsel in 2000, and Vice President of Litigation in 2001. At MALDEF, Saenz served as lead counsel in numerous civil rights cases, involving such issues as educational equity, employment discrimination, immigrants’ rights, day laborer rights, and voting rights. For example, he served as MALDEF’s lead counsel in successfully challenging California’s Proposition 187 in court; as such, he presented extensive written and oral arguments on numerous occasions in three different cases involving the anti-immigrant initiative. He was also MALDEF’s lead counsel in two court challenges to Proposition 227, the English-only education initiative that voters enacted in 1998, and he successfully challenged several ordinances barring day laborers from soliciting employment. Saenz also served as MALDEF’s lead counsel in challenging California’s congressional redistricting in 2001.

For eight years, Saenz taught “Civil Rights Litigation” in the spring semester as an adjunct lecturer at the U.S.C. Law School. Saenz currently serves on the Los Angeles County Board of Education, and he previously served on the Los Angeles County Commission on Human Relations.