More than twenty years ago Professor Lani Guinier coined the term "tyranny of the majority” ¹ to define how ethnic minorities within white majoritarian democracies (majority rule/winner take all) can be marginalized from the power sharing and shaping process by the white majority’s numerical superiority. What made Professor Guinier's concept even more controversial was the fact that she applied her concept to the manner in which Black people are marginalized within the American political system, arguing that the only way to correct the imbalance of political power between Black people and white/Anglo-Americans is through proportional representation. In 1993, when Professor Guinier was nominated by former president Bill Clinton to head the U.S. Commission on Civil Rights she was dubbed the "quota queen" by racist conservatives who were quick to employ racially coded language that appealed to white fears against any program that empowered Black people. The opposition to Professor Guinier's nomination, by white conservatives, moderates and quite a few liberals, was so intense that her nomination was eventually withdrawn.

The near unanimous opposition by all sectors of the white political establishment and populace to professor Guinier's nomination to a post responsible for enforcing the civil rights of Black people was a stark demonstration that when it comes to shaping and determining the future of American society, and more importantly its governance, Black people and other minorities will not be given equal opportunity to pursue their own interests. When looked at from a historical context, the absence of Black participation in the drafting and enactment of laws, specifically criminal justice legislation, calls into question the legitimacy of these laws as applied to Black people. The discriminatory nature, and disproportionate and disparate impact of mandatory sentencing laws on minority populations within the United States should constitute a gross human rights violation whose only remedy can be Black proportional representation. Within the traditional “winner-takes-all” majoritarian process Black peoples interests will always be at the mercy of the while majority in a democratic process that ensures the maintenance of white supremacy.

While the mention of white supremacy often brings to mind images of hooded men in white robes brandishing burning crosses, that is not white supremacy. That is white racism. White supremacy implies white maintenance and domination of the political, economic and cultural institutions if the United States for the benefit, directly or indirectly, of the majority white populace.

The exclusion of African-Americans from the drafting and enactment of legislation is not a recent event, and in fact has deep roots within American history and politics. Black people were excluded from the drafting of the United States constitution, amendments and primary legislative principles of government. In fact, during the drafting of this nation’s most fundamental documents of governance, Black people were not even considered humans or let alone citizens of the United States. It was not until the passage of the Civil Rights Act of 1964 that Black people were formally entered into the civic, social and political contract of American society. Although the Civil Rights Act gained Black people entry into the political process it did not create a power sharing or shaping mechanism for Black people. Instead, it assimilated Black participation within a governing system riddled with the legacy of structural discrimination and while supremacy.

The Black Population found it itself assimilated under legislative laws they had no role in drafting or enacting, laws which were tainted with the odor of American’s version of domestic apartheid – segregation. These laws were historically used to oppress and discriminate against Black people. Also, following the passage of the Civil Rights Act, Black people were not given the opportunity to register our consent, through a referendum or plebiscite, to live under legislative laws that were drafted and enacted by the white populace and legislators who harbored racial hatred and discriminatory intent toward Black people. The failure to create a mechanism for Black people to register their collective consent or rejection of these laws, according to International Human Rights professor Y. N. Kly suggests that:

The majority (whites), through the state they control (the U.S.), had no moral right to govern the national minorities (Black people) without their explicitly collective consent, and despite their superior force, the majority’s laws should have no moral compulsion for the minorities (Blacks). U.S. laws which at one time sanctioned the minority’s capture was no more morally acceptable than contemporary laws which permit the minority to virtually enslaved the minority by locking them into a permanent “hind-start” in the American rat race, or the laws that continue to imprison the minorities in the numbers vastly disproportionate to their population and lead to the criminalization of their culture differences. ²

In this context, the Civil Rights Act of 1964 essentially invited Black people into the house of governance but with the condition that we come in and not touch or disturb anything, as if centuries of racial hatred, discrimination, slavery and segregation had not existed or been maintained by the government. White legislators may have believed they were making a contribution towards racial progress by passing the Civil Rights Act of 1964. The important thing to recognize is it was their act and our input was limited to consultation, not its conception or implementation. White legislators, therefore still approached addressing racial inequality and social injustice from a sense of white entitlement, assuming for themselves the right to make decisions in our best interests as if they were still on the slave plantation. The late professor and revolutionary activist Imari Obadele define this sense of white entitlement as a pillar of white supremacy: “For the touchstone of slavery was the slave master could make the most fundamental decisions, including political ones, for the person held as a slave and without that person’s free and self-determined consent.” ³

Nowhere is the concept of the “tyranny of the majority” played out more brazenly than in the drafting and enactment of the United States criminal justice legislation, especially in the passage of mandatory sentencing which has given rise to the monster of mass incarceration. The proliferation of mandatory sentencing has exclusively been the product of rural conservative white legislators, supported overwhelmingly by a white populace that has come to equate Black people with criminality. Ohio State Law Professor Michelle Alexander connects the exploitation of white fear of Black progress in the passage of legislation behind the War on Drugs as follows:

The War on Drugs proved popular among key white voters, particularly whites who remained resentful of Black progress, civil rights enforcement and affirmative action. Beginning in the 1970's, researchers found that racial attitudes – not crime rates or likelihood of victimization – are an important determinant of white support for “get tough on crime” and anti-welfare measures… In October 1982, President Regan officially announced his administration’s War on Drugs. At the time he declared this less than 2 percent of the American public viewed drugs as the most important issue facing the nation.” ⁴

Following Reagan, Presidents George H. Bush and Bill Clinton continued to exploit white fear and resentment for electoral victories. More Black people were imprisoned during the presidency of Bill Clinton than at any time in the nation's history, including the era of Jim Crow segregation but some Black people still look upon this spineless politician with affection. The policies pursued by these politicians, and continued under President Obama is responsible for Black people accounting for 44 percent of the nation's prison population despite only making up only 12 percent of the nation’s population. To give further picture to this stark landscape: Out of a prisoner population of over 2 million in the United States, over 1 million of them are Black prisoners, a fifth of all Black men between the ages of 35 - 44 have been to prison; and 1 in 3 young Black men are under some form of criminal supervision - in prison, jail or on probation or parole. Over 70% of juveniles serving life imprisonment without the possibility of parole in the United States are Black/Brown youth. In Pennsylvania alone a Black youth is 21 more times likely to be sentenced to life without parole than white youth.

The madness continues across the board as Black women constitute the fastest growing segment of the United States prison population. In at least 15 states, Black men charged with drug offenses have been sent to prison at rates from 20 to 57 times those of white men. In other states, Blacks account for over 70 percent of people stopped by police on the interstate turnpikes, etc. It is estimated that millions of Blacks are disenfranchised nationwide, prohibited from voting because of prior or present criminal convictions. In three southern states (VA, KY, and FL) felony disenfranchisement laws block electoral participation by over 20 percent of the Black voting age population. In assessing the structural racism within the criminal justice system, Howard University Law Professor Nkechi Taifa found:

The criminal justice system is infected with racism and people of color are subjected to unwarranted disparate treatment at every stage in the administration of justice – from the selective employment of law enforcement personnel in communities of color, to police misconduct and brutality, from stop and arrests premised on racially-based profiles to charging and pretrial detention, from the lack of diversity in jury pools to the improper use of preemptory challenges to remove. Blacks from juries, and from the racial disparity in mandatory minimum sentences, including three strikes and the crack cocaine disparity, to the application of the death penalty. ⁵

Despite being overwhelmingly disproportionately impacted by the War on Drugs and mass incarceration, Black people have played no fundamental role in shaping or determining its legislation. We have been spectators and victims to legislation that has created a pipeline to prison within communities of color. Although there are thousands of elected Black legislators mere participation in the process does not legitimize the legislation, especially when Black legislators lack the mechanisms to impede legislation which adversely impacts our interests. The record is complete with examples of white conservative dominated legislators steamrollering minority opposition to legislation that would negatively impact the interests of Black communities. In Pennsylvania, in 2010, Kenyetta Johnson, an up and coming community activist from Philadelphia who was elected to the state's conservative dominated legislature in 2008, decided not run for a second term as a state representative. When pressed for his reasons Mr. Johnson's expressed frustration at the lack of power minorities occupy within the state legislature and the manner in which white conservatives ignore or marginalize Black legislators from Philadelphia and other urban centers within the state. Mr. Johnson opted instead to run a city council seat in Philadelphia, a city that is 60% Black, and where in his own words he could have more impact on his community. Mr. Johnson was tired of playing the role of spectator, the unfortunate side of this example is that Black people in Pennsylvania and other states continue to occupy the role of spectators to the political process.

The question ls how do Black people go from spectators to challengers or contenders? The United States Supreme Court has tactically tacitly endorsed the persistence of structured racism and discrimination in the criminal system by rejecting legal challenges to structural discrimination. The Supreme Court has held that identifying gross racial disparities, even through credible statistics, is not enough to invalidate laws that discriminate on the basis of race. The Supreme Court requires challengers to prove discriminatory intent by the decision makers in each individual case. To mount a broader challenge to structural discrimination within the system we are required to prove actual intent to discriminate on the basis of race within the minds of the legislators who dratted and enacted the legislation. ⁶

To date, this has been impossible to prove however Black activists should start delegitimizing mandatory sentencing statutes and the criminal justice system in general by taking a page out of the prosecutor's handbook and make the case for inferred intent and transferred intent ⁷ on the part of legislators and laws which discriminate against and disproportionately impact Black people. Inferred Intent for racial discrimination can be drawn from the application of sentencing statutes by identifying the massive racial disparities in sentencing and imprisonment of Black/Brown people, specifically among the youth. From the failure on the part of white dominated legislatures and the Supreme Court to remedy these disparities, inference can be drawn that either they are deliberately indifferent to our peoples/communities plight or it is a deliberate policy to criminalize Black people.

Next, the doctrine of Transferred Intent should be utilized in delegitimizing mandatory sentences and racial discrimination. Mandatory sentencing and the disproportionate impact of these sentences on minority communities does more harm than good, and winds up transferring the punitive intent these sentences allegedly serve to the very communities these laws were allegedly designed to protect. Far more harm has been inflicted on Black communities by these laws than has been imposed on the offenders these laws were supposed to impact. Former U.S. prosecutor Paul Butler, author of "Let's Get Free: A Hip Theory of Justice," has provided evidence that mandatory sentencing and mass incarceration actually increases crime and victimization by destabilizing and disenfranchising communities of color. ⁸

We must also address mandatory sentencing as a violation of an individual's human rights as the sentence prohibits a judge or jury from taking into consideration an individual's background, education and/or circumstances of the crime or their level of participation in the offense for which they are charged. Mandatory sentencing schemes are a one size fits all approach to justice and provides an assembly line system of injustice which feeds the machinery of mass incarceration.

These arguments should not be directed towards the very courts that have been complicit in upholding and defending structural racial discrimination in the United States but rather must be addressed in the people's court of Black/Brown public opinion and in international tribunals such as the Court of the Americas and United Nations Human Rights Committee on Racial Discrimination. In addition to delegitimizing mandatory sentencing and the criminal justice system, activists should also heed the words of Professor Nkechi Taifa and seek to prosecute and hold accountable "constitutionally protected rulers, public officials, or private individuals under appropriate laws, such as the Genocide Treaty Implementation Act." ⁹ The United Nation's Convention on the Prevention and Punishment of the Crime of Genocide, ratified by the United States Senate in 1986 and proclaimed by then President Reagan in 1988 provides for national, racial, ethnic and religious groups to raise claims of genocide if a State is found to be: (c.) Deliberating inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.

The charges of genocide against the United States government for the white majority's maintenance of discriminatory mandatory sentencing legislation that disproportionately and deliberately targets Black people may sound extreme. However, the 2016 election of United States president Donald Trump, who ran on a platform of racism, xenophobia, and sexism should be a reminder to all minorities that our future, and the future of our children is in the hands of a white electorate that is comfortable electing a white nationalist populist. When then candidate Donald Trump said the system was rigged he was correct, it is rigged against African-Americans and other ethnic and racial minorities.

In closing, the entrenched structural racial discrimination in the United States criminal justice system, has moved beyond discrimination and into systematic genocide and whether this is planned or not is irrelevant; the fact is the failure of the white majority to remedy it is deliberate. To reiterate, the United Nations convention on the Prevention and Punishment of the Crime of Genocide, defines one aspect of genocide as: (c.) Deliberately inflicting on the group (racial/ethnic/religious) conditions of life calculated to bring about its physical destruction in whole or part. There can be no denying that the structural racial discrimination inherent in the application of criminal justice in the United States is completely devastating Black/Brown communities and funneling an entire generation of their youth into the prison system or the graveyard. Again, to quote Professor Nkechi Taifa:

It is not too strong an indictment to charge that such disparate treatment is not only a direct reflection of the institutionalization of racism in the criminal justice system, but of systematic genocide generally against Black people as well. Blacks make up12% of the U.S. population but account for 45% of all arrests and half of this country's rapidly growing prison population, which raises another disturbing issue which demands attention: the deliberate infusion of crack cocaine into targeted communities results in predictable and intended consequences for its residents and provides a constant supply of human fodder to feed the spiraling corrections/industrial complex. A 1990 report by the Sentencing Project found one in four young Black men was under some form of criminal justice supervision. In 1995, the Sentencing Project's follow up report revealed that the figure had soared to nearly one in three. ¹⁰

It is now 2017 and the statistics are just as grim. To combat this system we must now recognize that the civil rights agenda has run its course and is no longer a viable tool to challenge and defeat structured racial discrimination because it confines our struggle within an illegitimate and oppressive system. Only an aggressive radical human rights strategy and posture will erode and delegitimize structural racial discrimination as a first step towards eventually dismantling an oppressive system that perpetuates white majority rule at the expense of Black empowerment and self-determination.

Notes

¹ "The Tyranny of the Majority” by Lani Guinier, (1992)

² "A Popular Guide To Minority Rights" by Y.N. Kly, pg. 21, (1995)

³ "Reparations Yes!" by lmari Obadele, Nkechi Taifa and Chokwe Lumumba, pg. 50, (1986)

⁴ "The New Jim Crow: Mass Incarceration ln The Age of Color-Blindness" by Michelle Alexander, pgs. 246,252, (2010)

⁵ "Beyond Institutional Racism: The Genocidal Impact of Executive, Legislative and Judicial Decision-Making in the Crack Cocaine Fiasco" by Nkechi Taifa, Esq., 1996, published in The National Bar Association Magazine Sept/Oct 1996

⁶ McClaskey v. Kemp, 481 U.S. 279, 292 (1987)

⁷ For definitions of Inferred Intent and Transferred Intent See Black Law Dictionary

⁸ “Coercive Mobility and Crime: A Preliminary Examination of Concentrated Incarceration and Social Disorganization" by Todd R. Clear, Justice Quarterly 20, no. 1 (2003)

⁹ Nkechi Taifa, Esq. supra, note 5.

¹⁰ Nkechi Taifa, Esq. supra, pg. 5