Not long after the highly publicized incident of Henry Louis Gates, Tony Fein must also defend himself from within that historic caldron of race, law, and criminal justice. Unlike, Professor Gates, the State is still pursuing criminal charges against Fein. It is a situation that African-Americans too often find themselves. Interactions between law enforcement and minorities in America involve race and power, even for Harvard professors and talented athletes.

     Sergeant Donato didn’t target Fein because of his race; he was responding to a call for a possible possession of a handgun, but the interaction between the two men and whether an assault occurred, involves a whole set of assumptions, perceptions, and actions between the police and minorities. Commentators have reflected that Fein could have avoided the entire incident by simply cooperating with the police officers, but not cooperating is not a crime, and not cooperating if it is true, may very well have been a response to the fact that Fein had not done anything wrong. The crime of course is assault, and trial testimony in court will have to resolve the veracity of that allegation.　

     Tony Fein came to Charm City from the University of Mississippi with a long shot chance to be an NFL linebacker. Fein made it to the last cut but was then released. He now has a much different and more serious set of problems.

     When Herman Melville began his last great work, he was trying to tell us something about the insanity of the criminal justice system and the harm it does to innocent people. Over one hundred years later maybe it is time that we finally start listening.

This fait accompli with the choice of making repairs over abolition has defined the past four decades- the modern era- of the American death penalty. A separate sentencing trial is held in death penalty cases where juries decide whether certain aggravating reasons, factors that define death eligible murders from run of the mill homicides, outweigh reasons for sparing the life of the accused. This additional process, as the logic goes, propelled us to a reliable and fair system of death imposition.

Yet, time and time again the fissures in this faulty foundation have cracked with seismic proportions. Advances in forensic science, particularly DNA, proved many death row inmates to be innocent of the crimes for which they were condemned. Simple investigations as well, most prominently done by students at the Northwestern Journalism School in the late 1990′s, exonerated a number of men on Illinois’ death row for example. Funding limitations in some states has led to inexperienced counsel taking on these cases and doing a job unworthy of the life of their client, and study after study has illustrated the racial and class bias in the imposition of the death penalty.

With problem after problem surfacing in the implementation of the death penalty, it has most recently been state legislatures and not the courts who have taken up this issue. Is our modern death penalty system being implemented fairly or does the “arbitrary and capricious” language of Furman still aptly describe our present system? Is it time to do away with the repair work and abolish the system all together? The New York legislature thought so when, in 2004, they refused to pass a law reviving the death penalty in that state when the New York Court of Appeals struck down the previous capital punishment law. In December of 2007, the state of New Jersey passed a law abolishing its death penalty, and in March the state of New Mexico did the same.

With the backing of a governor who has been outspoken against capital punishment, Maryland took up the issue this past legislative term and compromised on a law that took a “repair” approach to capital punishment. Maryland’s death penalty survived the contentious debate but is now limited to homicides when biological or DNA evidence links the accused to the crime, a videotaped voluntary confession of the crime exists, or a video recording links the defendant to the murder. If the State relies on eyewitness testimony alone in their prosecution, the death penalty is unavailable.

Maryland’s new law marks an improvement because it shrinks the universe of death eligible crimes, but the “repaired” statute goes against the recent progressive legislative trend and fails to acknowledge that the death penalty needs to be eliminated. A historical understanding of the change after change that has been tried in the last forty years teaches that unacceptable injustices are part and parcel of capital punishment. It can’t be fixed; abolition is the only answer.

At some point, trying to repair the decade old gas guzzling jalopy just isn’t worth it and it’s time to tow it to the scrap heap and try something else. Legislators in Maryland and the other thirty five states that support capital punishment should take a detour to the junkyard on their way to the statehouse next year and leave the death penalty there where it belongs -with slavery, male only voting, Jim Crow, and the rest of the legally sanctioned wrongs that we have eliminated in the past.

          Plainclothes officers patrolling a “high drug neighborhood” observe two young African-American men in an automobile stopped at an intersection in a dark Pathfinder. The police execute a U-turn to approach the vehicle and observe the Pathfinder turn right at the intersection without signaling and drive off at an unreasonable rate of speed. The undercover officers pursue and stop the Pathfinder for violating the traffic laws. They observe and seize a bag of what appears to be crack cocaine from the car. Both occupants in the car were arrested.

          Sound familiar to car stops occurring all over the country particularly in urban jurisdictions? Would the police have approached if two white people were sitting at an intersection? These were the facts in a 1996 Supreme Court case entitled Wren v. United States. The Supreme Court ruled that this practice of using the traffic codes as a pretext for the real reason for the stop is perfectly legitimate. Stopping someone for one reason (possibly race) and articulating another reason as long as that reason is lawful, complies with the Constitution. In the words of Justice Scalia, “[W]e think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved.” Hmm. Is there any doubt that the subjective motivation of police officers play a role in who gets stopped? With the traffic codes as cumbersome as they are, let’s face it, a zero tolerance policy gets almost all of us a traffic ticket on a short ride to the grocery store.

           What the police can and cannot do and why the police do what they do are very different questions and it is the latter that sometimes land a large number of darker skinned people in jail. The police target who they want to target- the poor, minorities, and others, and then use the traffic codes to pull them over, sometimes arrest them, and use the arrest for a reason to search their car. This approach was further enhanced by an older case called Belton v. New York, which was widely read by police departments to allow the search of all aspects of your car if they have any reason to arrest you- including traffic violations. Find a traffic violation, and then arrest the driver for the purpose of searching their car was a tried and true investigatory technique. The recent decision in Gant is far from a panacea to this continuing problem, but by limiting the officer’s discretion on the street, the decision is more likely to force the police to make decision on actual criminal conduct instead of less noble motivations.

          In Gant, narcotics officers in Tucson, Arizona, approach a house they were targeting and interviewed Rodney Gant at his home. They did not arrest him. Instead, they waited until later that evening when Mr. Gant was returning home in his car. The police approached Mr. Gant as he exited his car, and then, already knowing Mr. Gant had a suspended driver’s license, arrested him in his front yard. The police searched his car and found a gun and some drugs in a jacket in the back seat of the car. As the officer testified at the later trial, he searched the car because ” the law says we can do it.”

          Well, the Supreme Court ruled to the contrary. Without a connection between the grounds for the arrest (Driving with a Suspended License) and any possible evidence of that crime in the car, and without any portion of the car in arm’s reach of Mr. Gant to raise a security risk, the police had no basis to search the car. This reasonable decision doesn’t alter law enforcement’s ability to search an automobile when they have probable cause or some other lawful reason to do so. What the decision does do is sever the inevitable conclusion that being arrested for a traffic stop allows the police to search your car. With the traffic laws often being used as a pretext for stopping minorities, the decision is a unusually refreshing breeze from our highest court. Let’s hope the summer winds keep blowing until the end of the term.

       The prosecutor however, who had been vetted or elected by no one and hired by a State’s Attorney who hasn’t had a serious challenge since taking the job, wanted more jail time. The prosecutor of course won.  My client had a prior felony drug conviction and that effectively turned the assistant state’s attorney into both prosecutor and judge.  By invoking a mandatory minimum sentence, the prosecutor overruled the judge- a horrific state of affairs for the large number of poor people who sell drugs to feed an addiction or to make a few dollars in an economic climate that provides few other opportunities.

       Like many other states, repeat drug offenders in Maryland are eligible to receive mandatory minimum sentences of ten years, twenty five years, and forty years without parole on their second, third, and fourth felony drug convictions.  The last sentence of forty years without parole is a longer sentence than the maximum sentence for second degree murder in Maryland (thirty years).

       The Constitution defines a separation of powers among all branches of government and specifically between the judicial and executive branches. The power to sentence someone to prison and take away their liberty has traditionally been a function of the trial judge.  Mandatory minimum sentences which are within the exclusive power of the prosecutor upsets that balance.

       These potentially draconian sentences have fueled an increasing number of poor and mostly minority men and women who are incarcerated in prisons across the United States.  The richest nation on earth incarcerates people at the rate of 1 in 131 persons according to The Sentencing Project, the research and advocacy group in Washington, D.C.  Inmates have increased seven-fold from 200,000 in 1970 to over 1.5 millions as of  midyear in 2008. As for drug crimes?  An 1100% increase since 1980 with over a half of a million people presently incarcerated on drug offenses.

       The movement toward mandatory minimums originated in the State of New York in 1973 with the notorious Rockefeller drug laws and was then passed in other states.  As the officially declared “war on drugs” took hold in the 1980′s, mandatory minimum sentences became weapons of law enforcement that were used most often in urban jurisdictions like Baltimore.  Poorer and minority communities have been devastated by the continued incarceration rate.  Much of the law enforcement is directed at low level street dealers, who make for easy targets, but who are also easily replaced by the drug organizations that support them.  These increased incarceration rates have done very little in eradicating drugs.  Instead drug arrests and drugs selling continues.  A law and order approach to the drug problem has failed miserably and yet mandatory minimums remain in many states.

       Recognizing some of the draconian aspects of these laws, earlier this year the New York State legislature however, passed reform legislation that eliminated some of the more extreme aspects of their mandatory minimum sentencing scheme.  The proposed law stressed drug treatment alternatives instead of longer sentences.  Governor David Patterson supported the legislation and is expected to sign the reforms putting in place much needed change for repeat drug offenders.  In 2007, Maryland passed legislation similar to that in New York.  Citing a debatable connection between violent crime and drugs, the Governor vetoed the law instead of taking a leadership role on this issue.

       My client who couldn’t plead guilty to a three year sentence had a trial and was found guilty.  He awaits receiving his ten years without parole from a judge who must impose it whether or not he believes it is fair.  We have fought and lost the drug war, yet law enforcement keeps fighting.  Not unlike our recent follies in Iraq which have created serious and long-term damage, it is time for a new approach.