Flowers v. Mississippi: Race, Pretext, and Plausible Deniability
To date, the courts have been far too willing to accept specious explanations for discriminatory behavior and practices.
Last week, the U.S. Supreme Court heard oral arguments in Flowers v Mississippi. In Flowers, the Court is trying to determine what extent a prosecutor’s history of racial bias and exclusion should bear on similar actions when they appear to recur. Given the particular circumstances of the case and the questions posed by the justices, it seems likely the Court will rule in favor of the petitioner, Curtis Flowers, and the coming months will tell exactly where the justices will draw the line. Looking at the case more broadly, though, the conflict in Flowers — when does a legacy of racism stop being relevant to American justice — reflects common American misconceptions about racism and its effects today. Moreover, when courts adopt such misconceptions, they provide cover for discrimination within the law.
The facts in the Flowers case are highly unusual. Flowers has been tried six times for a quadruple murder, and the same prosecutor, Doug Evans, has handled all six trials. In two of those previous trials, appeals courts found what are colloquially known as Batson violations — that Evans had intentionally and thus unconstitutionally excluded black potential jurors from the jury pool because of their race. With 41 of 42 black potential jurors dismissed in the four cases for which there is reliable record, a lack of racial bias is hard to entertain.
In the most recent case, known as Flowers VI, Evans accepted one black juror and struck the remaining black jurors after giving them more intense questioning than he gave white members of the panel. The Mississippi Supreme Court ruled that — despite Evans’ history of unconstitutional exclusion of black jurors when trying these murders — the prosecutor had sufficient reasons to dismiss the jurors and thus Flowers’ Batson challenge failed.
During oral argument, Justice Samuel Alito echoed this finding when addressing Ms. Sheri Lynn Johnson, Flowers’ attorney: “If [you] look…at the jurors in question one by one, there are aspects that I think would cause any prosecutor anywhere to want to get…off the jury.” Justice Alito went through the dismissed jurors at issue in the case, and through his questions more or less made an argument that — if you took the history away — provided the prosecution with plausible deniability on the charge of discrimination. (N.B.: Justice Alito made clear that he was not suggesting the Court ignore the history of the case. Rather, he was asking whether Flowers could make a sustainable Batson challenge without it, which is an entirely reasonable line of questioning.)
Ms. Johnson countered that even if you ignored Evans’ relevant Batson history, that white jurors were not subjected to the same questioning was a strong indicator that the dismissals were not only for cause. “The problem isn’t whether the reason [for striking a juror] is a legitimate reason,” Johnson said, “but whether the reason was pretext.”
Indeed, pretext is key. In the few decades de jure racism has been illegal in the United States, all levels of government have struggled with eradicating racial discrimination, reducing the disparate racial impacts of policies, and removing outwardly racist officials from office. While it was once easier to see racism in the explicit words and deeds of men like Bull Connor, Strom Thurmond, and George Wallace, racism doesn’t always carry a bullhorn or turn firehoses on women and children. As the Flowers case history demonstrates, there are often more insidious methods of racial control and discrimination.
Flowers is only the most recent case to test the judicial threshold for governmental racism. In 2016, the U.S. Court of Appeals for the Fourth Circuit found intentional discrimination against black voters within new state laws supposedly aimed at voter fraud. In her opinion in North Carolina NAACP v. McCrory, Fourth Circuit judge Diana Gribbon Motz wrote, “[T]he new provisions target African Americans with almost surgical precision [and] impose cures for problems that did not exist. Thus the asserted justifications cannot and do not conceal the State’s true motivation.” Judge Motz also cited evidence that Sunday voting options were removed after Republican legislators established that early voting benefited black Democratic voters, “as close to a smoking gun as we are likely to see in modern times.”
The U.S. Supreme Court declined the case, allowing Judge Motz’s opinion to stand, but this and other voting rights cases continue to be litigated in the wake of Shelby County v. Holder, the 2013 Supreme Court case that struck down the preclearance formula in Section 4(b) of the 1965 Voting Rights Act. While the State of North Carolina was not covered by the now-stricken provision — which named the several states and counties that had to preclear any changes to their voting laws because of their histories of racial discrimination — 40 of the state’s 100 counties were. Recognizing that history, Judge Motz noted at the beginning of her opinion “In holding that the legislature did not enact the challenged provisions with discriminatory intent, the [lower] court seems to have missed the forest in carefully surveying the many trees…including the inextricable link between race and politics in North Carolina.”
Racial discrimination will be present in cases that don’t have the long and documented history of Flowers or other ‘smoking gun’ evidence that shows racially discriminatory intent. And when courts ignore relevant history and practice so that any flimsy pretext will suffice to mask unconstitutional intent, they create bad precedents that permit the discrimination they are supposed to safeguard against. In no case is this clearer than in the 1996 Supreme Court decision Whren v. United States.
In a unanimous ruling, the Whren Court held that so long as a police officer could cite a violation as a reason for stopping a vehicle on the road, then whatever other reasons he may have had for stopping the vehicle are irrelevant. In theory, this seems reasonable: a traffic violation is, by itself, a legitimate reason for a police officer to pull someone over.
Myriad traffic safety laws cover unquestionably dangerous behavior like speeding and running red lights, but also minor regulations like window tint, dangling rearview mirror accessories, and the tiny light that illuminates a license plate at night. Moving violations are so numerous, broad, and subjective that a driver will probably commit several every time he gets behind the wheel of a car. Any one of these violations can trigger a roadside stop and police investigation. Thus, in practice, a police officer only need follow a driver for a short time before finding some technical violation to initiate a stop.
As shown in study, after study, after study, police have used these artificial reasons to stop and investigate black drivers far out of proportion to their numbers, which can cause resentment and community distrust, further damaging the relationship between black communities and the police. Although the Whren decision paid lip-service to racial profiling being anathema to equal protection under the law, the Court effectively drew a blueprint to show the police exactly how to do it. Theory must reckon with reality.
Racism has been and remains a powerful social and institutional force throughout the United States. This does not mean every claim of racial bias and discrimination should be accepted without question, particularly in courts of law. But relevant history and the government’s real-life practices ought to be examined thoroughly against any putative, non-racially discriminatory rationale the government gives for its actions when such claims arise. To date, the courts have been far too willing to accept specious explanations for discriminatory behavior and practices, deferring — as is often their wont — to whatever explanation puts governmental action in the most positive light. Cases like Flowers and the North Carolina voting litigation are exceptional insofar as the culprits weren’t savvy enough to sufficiently hide their intent. The Constitutional safeguard against racial discrimination, however, should not depend on the uncommon incompetence of discrimination perpetrators.
