31 August 21
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It’s past time to take the planet’s limits seriously.
n October, 1999, Kerry Emanuel, a professor of atmospheric science at the Massachusetts Institute of Technology, published a paper in the journal Nature that stated, quite baldly: “the evolution of hurricane intensity depends mainly on three factors: the storm’s initial intensity, the thermodynamic state of the atmosphere through which it moves, and the heat exchange with the upper layer of the ocean under the core of the hurricane.” Hurricane Ida followed his script this past weekend—in the course of Saturday night, it moved across very hot water in the Gulf of Mexico and, as a result, strengthened dramatically. By the time it hit the Louisiana coast, it had exploded in intensity, tying for fifth on the list of all-time strongest storms to hit the mainland. In the past seventy years, the United States has averaged three land-falling storms a year; Ida is the seventeenth in the past two years.
Amid the torrent of news reports and Webcam photos and anguished GoFundMe appeals, it’s worth reminding ourselves that this calamity is the predictable result of simple physics. Hurricanes, as Emanuel pointed out, draw their power from heat in the ocean. If there’s more heat, the hurricane can get stronger. Physics. Warm air can hold more water than cold air can. So in warm, arid areas you get more evaporation, and hence more drought, and hence more fire. Physics. The water that’s been evaporated into the atmosphere comes down: more flooding rainfall. Physics. The earth runs on energy. We’re trapping more of it near the planet’s surface because of the carbon dioxide that comes from burning coal and gas and oil. That energy expresses itself in melting ice sheets, in rising seas, in the incomprehensible roar of the wind as a giant storm crashes into a city of steel and glass. It’s not, in the end, all that complicated.
You can’t beat physics. That’s the core fact of the twenty-first century. But you can fight it in two ways, both of which involve politics. The first is to make ready. Ida hit land sixteen years to the day after Katrina did, devastating the region, and since 2005 we have worked together as a nation by, among other things, allocating funds to the Army Corps of Engineers to strengthen the levee system in the metropolitan New Orleans area. So far, the levees have done their job, and the city also has more and better pumps. The Federal Emergency Management Agency is now run professionally—by Deanne Criswell, who used to direct the New York City Emergency Management Department—rather than by somebody who used to run an Arabian horse association.) We have at least a lip-service understanding of who is most vulnerable: poor people and people of color. All of that helps, at least temporarily. (We’ve also obviously got much worse at some things: instead of working together to defeat COVID, we have let ideologues derail too much of the vaccination effort, and so the hospitals of New Orleans were already crammed with people on ventilators as the hurricane crashed ashore.) This is not to say that New Orleans is safe: Ida seems to have spared it the worst, but, even so, a major transmission tower that provides some of the city’s power collapsed into the Mississippi. It’s just to say that we can, working together, improve the odds of surviving the inevitable catastrophes.
The second political task is to keep the physics from getting any worse than it has to. That’s a straightforward task: we need to stop burning fossil fuels, because the more carbon dioxide and methane we spew into the atmosphere, the higher the temperature is going to go, and the worse the storms will get. Ida has shut down most of the oil and gas production in the Gulf, for a few days—but production needs to be shut down permanently, as soon as possible. If it isn’t, the physics will just keep getting more impossible.
Job one—the making-ready part—might be summed up as: adapt to that which we can no longer prevent. It requires solidarity, which, as Rebecca Solnit has documented, is usually available in the immediate wake of a great disaster: faced with true trauma, we reliably work together to rebuild. But, in this case, we will have to work together across many years (and many elections) to create a more resilient and sufficient society. It’s doable: the new levees around New Orleans are proof of it. President Biden’s infrastructure bill is the next step. The federal government, traditionally, is pretty good at building stuff—or it used to be, before the grasping individualism that now poisons our politics came into fashion. That hyper-individualism was gross forty years ago, when Ronald Reagan was elected on his “government is the problem” platform—and the atmosphere was three hundred and forty parts per million carbon dioxide. Today, with the atmosphere at four hundred and twenty parts per million, it’s suicidal.
Job two—shutting down the fossil-fuel industry, or preventing that to which you simply can’t adapt—is harder. Because this requires stopping something: the production of fossil fuels, and the wealth that the industry provides, and that task has become steadily harder to accomplish as industries have learned to game the political system. It’s easier for, say, the governor of Mississippi to insist, as he did last week, that “when you believe in eternal life—when you believe that living on this earth is but a blip on the screen, then you don’t have to be so scared of things.”
It’s possible that we’ve waited too long to get started on this work, but we have no choice but to try on both fronts. That’s what this hurricane, and the clouds of smoke choking Lake Tahoe, and all the other record-breaking events of our moment remind us. Otherwise, the next time around, the sea level will be a little higher, and the water will be a little warmer, and physics will push harder. We need political action, but we’re not in a normal political dispute. Physics doesn’t compromise or negotiate or hold back. Physics just is. It’s entirely up to us to understand and live within the limits it sets.
Chief Supreme Court Justice John Roberts. (photo: Drew Angerer/Bloomberg/Getty Images)
These emergency rulings – short, unsigned and issued without hearing oral arguments – undermine the public’s faith in the integrity of the court
ast week, it was Remain in Mexico. On Tuesday, the supreme court issued an order requiring the Biden administration to reinstate the Trump-era policy that required asylum seekers from Central America to stay across the border in Mexico while their claims are adjudicated. It was an uncommonly aggressive intervention into foreign policy, an area where previous courts have preferred a light touch, and it posed massive logistical, diplomatic and humanitarian crises at the border that will need to be rapidly resolved if the Biden administration is to comply with the order.
Two days later, it was the eviction moratorium. On Thursday, the court blocked an extension of the federal emergency ban on evictions, gutting a 1944 law that gave the CDC the authority to implement such measures to curb disease, and endangering the 8m American households that are behind on rent – who now, without federal eviction protection, may face homelessness.
Both of these orders last week were issued in the dead of night. Their opinions were truncated, light on the details of their legal reasoning, and unsigned. Vote counts were not issued showing how each justice decided. And despite the enormous legal and human impact that the decisions inflicted, they were the product of rushed, abbreviated proceedings. The court did not receive full briefs on these matters, heard no oral arguments and overrode the normal sequence of appellate proceedings to issue their orders.
Welcome to the “shadow docket”, the so-called emergency proceedings that now constitute the majority of the supreme court’s business. Minimally argued, rarely justified and decided without transparency, shadow docket orders were once a tool the court used to dispense with unremarkable and legally unambiguous matters. To have an issue addressed on the shadow docket, a litigant has to apply for “emergency relief” – usually to stop a decision against them from a lower court from going into effect while appeals proceed. Traditionally, applicants would need to demonstrate that they would suffer “irreparable harm” if their petition wasn’t granted immediately. So one historical use of the shadow docket has been in federal death penalty cases, where the court has used the emergency proceeding to affirm or deny requests for stays of execution.
But in recent years the court has largely dispensed with any meaningful application of the irreparable harm standard, and instead has entertained emergency relief petitions from more and more litigants, issuing shadow docket rulings on increasingly significant and controversial legal questions without the rigor or transparency that such issues demand.
The term “shadow docket” was coined in 2015 by a conservative law professor to refer to the thousands of supreme court actions each term that defy the “normal procedural regularity” of the federal appellate process. A newer, expanded version of the shadow docket began to emerge in 2017, when the Trump administration came to power. Previously, shadow docket emergency requests had been rarely used, to advance the interests of the governing administration. From 2001 through 2016, the Department of Justice applied for these emergency relief interventions from the court only eight times. During the four years of Trump’s presidency, however, the justice department applied 41 times. The use of shadow docket requests by Trump’s justice department especially accelerated after 2018, when Justice Anthony Kennedy retired and was replaced by Brett Kavanaugh, initiating the court’s rightward lurch.
The gambit worked. Of those 41 requests, the supreme court granted 28 of them in whole or in part, denying the Trump administration outright only four times – much more generous than the court has been to other litigants. Bypassing lower courts, the Trump administration was able to solicit the supreme court for a green light for border wall funding and construction, for a ban of transgender troops in the military, for a ban of immigrants from Muslim majority countries, and for many, many executions during the administration’s 11th-hour killing spree in the latter half of 2020.
Ultimately, many of the policies that the court used the shadow docket to keep in place were never declared legal: they were simply rescinded when Trump left office. It was only because of the supreme court’s unusual intervention via the shadow docket that they were able to be enacted at all. If this seems like the court merely deferring to the prerogatives of the executive, rest assured that it isn’t: the court’s shadow docket has not been similarly generous towards Biden administration claims.
In this way, the shadow docket’s expanded use raises troubling questions – both for transparency, and for the separation of powers. What does it mean for popular sovereignty when the unelected supreme court can overturn the actions of elected officials seemingly at whim, without reading briefs, without hearing arguments and without having to assign judges’ names to their opinions or make any effort to explain their reasoning? The supreme court’s cryptic, late-night shadow docket decrees risk overextending the court’s already tremendous power, and its lack of transparency shrinks the already slim opportunities for oversight. There is considerable potential for abuse, and there are also simple logistical problems: without a real accounting of the justices’ reasoning, lower courts are left to guess why a certain decision was handed down, rendering them less equipped to interpret precedent.
And all of this is before we get to the shadow docket’s real problem: it further undermines the already severely damaged public trust in the court. The justices and the legal elites who flatter them like to say that the supreme court is composed of neutral, apolitical arbiters of the law. But this mythology conflicts with a growing public perception of the federal judiciary as protectors of Republican priorities. This impression is not helped by the reality that the court’s decisions on the shadow docket seem much less consistent in their legal reasoning than they do in their politics. In light of this, it is tempting to conclude that the court has transformed the once-anodyne tool of the shadow docket into a way to achieve the preferred outcomes of the conservative majority without having to justify its own actions to the public.
Steve Vladeck, a University of Texas law professor and one of the shadow docket’s most prominent critics, summarized the danger in an article in the Harvard Law Review. The shadow docket, he writes, “risks the perception that the rule is not one for the federal government in general, but for the federal government at particular moments in time – perhaps depending on the identity (or political affiliation) of the sitting president, or perhaps, more granularly, depending on the political or ideological valence of the particular government policy at issue”.
With respect to Professor Vladeck, maybe the shadow docket does not risk such a perception – maybe it reaffirms it.
Omarion Swint attends a vigil for his friend since the 3rd grade, 15-year old Terrance Malden, who was shot to death on July 10 in the Jeffrey Manor neighborhood, on July 17, 2020. (photo: E. Jason Wambsgans/Chicago Tribune/TCA)
Around 1 p.m., Gordon heard that a shooting had occurred in South Deering, but she says that she didn’t think much of the alert given that her community struggles with gun violence on a daily basis. It wasn’t until she got home that she learned it was her son, Tyler Malden, who had been shot. Malden had been pronounced dead at the hospital before Gordon was even aware. He was 20 years old.
And according to Gordon and other South Deering residents who spoke with TIME, the shooting was no accident—they believe Malden was targeted due to a conflict with another individual.
Malden was one of Gordon’s six children; Gordon says they were very close. He had two jobs, working at FedEx and a local bowling alley. She describes him as a big, solid man and although he wasn’t “perfect”—”if you confronted him, Tyler was willing to fistfight. He wasn’t afraid to fight,” Gordon tells TIME—he was “not a troublemaker.” And Gordon adds that both she and Malden’s father had raised him to never carry a gun.
The shooting hit Gordon’s younger son, Terrance Malden, 15, particularly hard. Terrance, Gordon says, was a lot like his older brother, not willing to back down to anyone. Less than three months later, on July 10, 2020, Terrance was also shot and killed.
Over a year later, both their deaths remain unsolved.
“I know the same young man who killed my son Tyler killed my son Terrance,” Gordon says. She believes that Terrance, an outgoing teen who had spoken out in the community against the shooter by name, was targeted like his brother. Gordon says she and others have provided the police with a Facebook profile of the alleged shooter, photos of the alleged shooter holding a gun, and told the police about other incidents community members believe he has been involved in. But, she believes, they have not acted on any of the information she’s provided.
“I’m very frustrated with the police,” she says. “If I don’t call the police to find out what’s going on, I won’t find out anything.”
Responding to a FOIA request for information on their investigations of the shootings, the Chicago Police Department provided TIME with two heavily redacted incident reports on April 22.
The reports lay out few details: In Tyler Malden’s case, the only detail shared came from an anonymous witness who says they saw that the shots were fired from “a Black SUV truck, possibly a Cadillac.” In Terrance’s case, another anonymous witness says they saw Terrance walking down the street when someone in a white Audi with tinted windows drove next to him, opened a car door, and shot him five times.
“The release of records would divulge information that would compromise the investigators’ ability to determine the veracity of statements made by all involved parties, thereby affecting the integrity and outcome of the investigation” the CPD said in a statement to TIME.
As of June 2021, the CPD confirms that both investigations—which are being treated separately—remain unresolved.
“The police [keep saying] we need a witness. Well if everybody is constantly bringing up the same name, don’t you think that should be a person of interest?” Gordon says. “No one seems to be investigating this young man.”
Gordon’s tragic situation should be an exceptional one, an outlier. It’s not. The lack of resolution for the killings of both siblings is all too familiar for inner-city communities long-plagued by gun violence.
Historically, when it comes to homicides in poor and disenfranchised Black communities, many cases are left unsolved. There are a variety of factors—systemic discrimination and limited resources, for example, as well as what is widely viewed as a lack of care from the police—at play, but community activists and experts also point to a “no snitching” culture often in place in these communities.
“Research suggests that the number one solvability factor is a cooperating witness,” explains Thomas Abt, director of the National Commission on COVID-19 and Criminal Justice says regarding his research on this topic. “In these cases, you often don’t have a viable cooperating witness.”
“If just one or two people were to speak up against this gun violence then hopefully we could get the perpetrator off the street and then you don’t have to be scared,” Gordon says. “As long as people keep their mouths shut then those same [shooters] are going to keep doing the same thing.”
In 2020, cities across the country saw a drastic increase in gun violence. That increase in shootings and shooting-related deaths has resulted in more cases left unsolved. Last year in New York City, only two-thirds of homicides were solved, much lower than the 86% that were solved in 2019. In Paterson, New Jersey the clearance rate of homicides was 30%, down from 58% in 2019. In Indianapolis, only 56 of the year’s murder investigations have resulted in an arrest, while 135 remain unsolved.
Gun violence in 2021 is already on track to be as bad or possibly worse than 2020—meaning it’s very likely that even more cases are left unsolved this year. Over the July 4th weekend this year, at least 108 people were shot in Chicago and 17 were killed.
Chicago cleared 45% of its homicides in 2020, compared to 53% in 2019. According to the police, this percentage represents their solving of 350 murder cases—the most they’ve closed since 2005. But the city was hit with 769 total homicides in 2020, compared to 495 in 2019, meaning that more than 200 more cases were still left unsolved.
Many local residents remain skeptical of the number of cleared homicides cases the police put out.
Tamar Manasseh is the president of Mothers Against Senseless Killings (MASK), a Chicago-based organization that sees volunteers congregate on a street corner they have identified as a hotspot for violence. During the summer months, the volunteers cook communal dinners, provide entertainment and engage with community members to try to stop the cycle of crime. (During the summer of 2019, two MASK volunteers were killed in a drive-by shooting that also remains unsolved.)
Manasseh says that much of the information that the police need to solve homicides is available if officers only worked to build better relationships with community members. But they don’t take enough initiative, Manasseh charges.
“There’s like a running joke: if you want to get away with murder, go to Chicago,” Manasseh says. “There are music videos made about murders and there are details in these songs about how someone was killed. There are the guns that they kill each other [featured] in the music videos. The police see this stuff but nothing happens.”
She cites a particularly disturbing example: On July 14, 2020, 31-year-old Donnie Weathersby was shot and killed just down the block from where MASK volunteers were set up. It was clear to Manasseh and other MASK members that there would be some kind of retaliation; with Weathersby’s funeral happening a week later, Manasseh says she personally went to the police and told them that security would be needed at the event.
“I kept texting them that something was going to happen,” Manasseh says. Despite the warnings, there was no large police presence at the funeral—which took place just three blocks away from the nearest police station—and 15 people were shot.
“[Mayor Lori Lightfoot] and [CPD Superintendent David Brown] got on television and said they didn’t have any credible tips,” Manasseh says. “Most of the people who were shot were women and kids. This was completely preventable.”
The Mayor’s office referred TIME’s questions about the incident to the CPD, who did not respond to the request for comment.
This speaks to a larger problem: the disconnect between the police in many big cities and the communities they’re supposed to be protecting. There’s a lack of trust and “legal cynicism,” as Thomas Abt puts it, from local residents, who feel that officers often do not have their best interests at heart, and often a consensus that police can sometimes become indifferent towards the typical victims of inner-city gun violence. Abt says the police will commonly use that as their excuse for not solving crimes. “They say no one will talk to us, so how do you expect us to solve it?”
Carlton Gordon, 56, a cousin of LaTanya’s who also lives on Chicago’s South Side, says he can also see the dejected attitude of the police in his neighborhood. “Some [officers] do care, some don’t care,” he says. “They have to come to a place where they are more involved with the community to gain their trust. They have too much of a hands-off mentality.”
Activists continue to stress the need for better pipelines to be built between communities and officers who police them, and in particular to utilize the work of neighborhood leaders and violence interrupters—mediators who have credibility on the streets and try to curb conflicts between rivals. “It’s not the community that solves crime and the police that solves crimes. They solve them together. They have to solve them together,” Abt says.
Multiple sources tell TIME that the individual widely believed to be responsible for both Tyler Malden and Terrance Malden’s deaths was arrested in June 2021 for a separate crime, though Gordon says she has not heard anything from the CPD. (No records exist as of July 15 for this person on the CPD’s public-facing arrest database; the CPD did not respond to a request for comment on the alleged arrest or any pending charges.)
Still, Gordon says she remains hopeful that her sons will get justice and has in the past year become more vocal in the fight to end gun violence in her community. She says she tries to attend as many prayer vigils as she can for the victims of shootings and offers support for other families who have lost loved ones to gun violence
“This is happening to so many young Black men and women and it’s hard for [communities and police] to get unified,” Gordon says. “Everybody wants to give their sympathy and say that they care. Why aren’t we all working together?”
Children wearing masks. (photo: Christina Szalinski/NYT)
The department’s Office for Civil Rights (OCR) sent letters to school officials in Iowa, Oklahoma, South Carolina, Tennessee and Utah describing how bans on universal mask requirements could prevent schools from implementing policies that protect students from COVID-19, particularly those with underlying medical conditions “related to their disability.”
In the letters, the agency wrote that the prohibition of mask mandates "may be preventing schools … from meeting their legal obligations not to discriminate based on disability and from providing an equal educational opportunity to students with disabilities who are at heightened risk of severe illness from COVID-19.”
The probes will examine whether the bans violate parts of the Rehabilitation Act of 1973 and the Americans with Disabilities Act that forbid discrimination based on a person’s disabilities and that give all students the right to free public schooling. The OCR said it will collect data from the five education departments “over the coming weeks.”
Oklahoma State Superintendent of Public Instruction Joy Hofmeister (R) said the agency "regrettably" is "not surprised" by the Education Department's probe into the state law banning mask requirements in public schools.
"That law, Senate Bill 658, is preventing schools from fulfilling their legal duty to protect and provide all students the opportunity to learn more safely in-person," Hofmeister said. "We will fully cooperate with USDE.”
Utah State Superintendent of Public Instruction Sydnee Dickson argued in a statement that state law allows local officials to determine whether mask mandates should be implemented, noting that Salt Lake City and Grand County School districts have indoor mask requirements.
"While we appreciate OCR’s efforts to protect children, specifically students with disabilities, we think they have unfairly defined Utah as a state where mask mandates cannot occur," Dickson said.
“We look forward to working with OCR to clarify Utah’s position on the issue," she added. "We continue to urge districts and charters to work with their local public health care professionals to continue providing Utah students and public school staff with safe and effective schools."
One bill passed in the Utah legislature earlier this year permits local health departments to mandate masks in schools, although county governing bodies can overturn the decision.
A spokesperson for the South Carolina Department of Education (SCDE) said Superintendent Molly Spearman (R) had received the Education Department's letter about the provision in the state's Appropriations Act that bans mask requirements.
"Superintendent Spearman has repeatedly implored the legislature to reconsider Proviso 1.108 and allow local school boards to make decisions affecting the health and well-being of the students they serve," the spokesperson said.
"As the chief administrative officer of the public education system of the state, Superintendent Spearman anxiously awaits resolution of these critical questions by the courts so that the SCDE can advise all affected parties of their rights and obligations under the law," the statement added.
Spokespeople for the Tennessee Department of Education and the Iowa Department of Education said in statements that the agencies received the letters and are reviewing them.
Agency officials noted that they have not launched probes into Arizona, Arkansas, Florida and Texas because those states are not yet enforcing their policies due to court battles or “other state actions.”
“However, the Department will continue to closely monitor those states and is prepared to take action if state leaders prevent local schools or districts from implementing universal indoor masking or if the current court decisions were to be reversed,” the office said in a release.
Education Secretary Miguel Cardona said that parents of children with disabilities have told the department that the prohibition on mask requirements is putting their kids “at risk” and “preventing them from accessing in-person learning equally.”
"It's simply unacceptable that state leaders are putting politics over the health and education of the students they took an oath to serve,” Cardona said in a statement. “The Department will fight to protect every student's right to access in-person learning safely and the rights of local educators to put in place policies that allow all students to return to the classroom full-time in-person safely this fall."
With the investigations, the Biden administration is taking a more aggressive push against bans on mask mandates in schools.
President Biden criticized Republican governors who instituted such restrictions on masking earlier this month, saying the moves were “setting a dangerous tone.” At the time, the president said he was instructing Cardona to "use all of his oversight authorities, and legal action if appropriate, against governors who are trying to block local school officials and educators."
"This isn't about politics," Biden said. “It's about keeping our children safe. It's about taking on the virus together, united. I've made it clear that I'll stand with those who are trying to do the right thing."
The prohibitions against mask requirements counter the Centers for Disease Control and Prevention’s recommendations for all people aged 2 and older to wear masks indoors at schools.
The administration’s action also comes as the back-to-school season has been clouded by anxiety over rising COVID-19 cases and hospitalizations among children across the country.
Thirty-five years ago, Justice Thurgood Marshall proposed eliminating a practice known as 'peremptory strikes' in jury selection. Now Arizona will follow his lead. (photo: Bettman/Getty Images)
The state embraces a reform proposed by Justice Thurgood Marshall more than three decades ago.
rizona’s conservative state Supreme Court took a surprising step last week that could lead to juries in that state being more racially diverse, and thus less likely to treat racial minorities more harshly.
It announced that it will eliminate “peremptory challenges” in Arizona — a practice that allows trial lawyers to remove jurors from a case, often for arbitrary or ill-defined reasons.
Although criminal justice reformers, including some who sit on the Supreme Court of the United States, have warned for decades that peremptory challenges are often used to exclude jurors because of their race, the practice remains widespread in the United States. Arizona will be the first state to eliminate peremptory challenges entirely; the state’s new rules will take effect in January.
People of color are less likely to serve on juries for a wide range of reasons — racial minorities are less likely than white people, for example, to appear on voter registration lists and vehicle registration lists, which many jurisdictions use to develop a pool of potential jurors. But multiple studies suggest that peremptory strikes play a major role in producing juries that are whiter than the population as a whole.
Typically, in both criminal and civil jury trials, a court will assemble a panel of potential jurors that is much larger than the actual number of jurors needed to hear the case. Though the rules vary from state to state (and the federal system has its own set of rules), lawyers on both sides of a case may ask the judge to remove a juror “for cause” if there is reason to doubt that juror’s impartiality. (A prosecutor, for example, may wish to exclude a juror who is related to the defendant.)
Peremptory challenges, meanwhile, allow lawyers to strike jurors even if they are unable to convince the judge to do so for cause. Typically, a lawyer who uses a peremptory challenge to remove a juror does not have to explain why they decided to do so, and is allowed to remove a juror for arbitrary reasons. A lawyer may, for example, use a peremptory challenge to remove a juror because they do not like the juror’s haircut.
The number of peremptory challenges available to lawyers varies depending on the type of case and which court is hearing the case. In most federal felony trials, for example, the prosecution may strike up to six jurors, while the defense may strike 10.
There are a few constitutional limits on peremptory strikes. Most notably, in Batson v. Kentucky (1986), the Court held that lawyers may not remove a juror because of that juror’s race, and it laid out a three-part test that judges should use to sniff out whether a particular juror was removed for racist reasons.
In practice, however, Batson is difficult for judges to apply, and it rarely leads to convictions being tossed out because a juror was struck for racist reasons — even though data suggests that racial jury discrimination is quite widespread. As a pair of Arizona judges explained in a petition asking the state supreme court to abolish peremptory challenges, “decades of litigation over Batson challenges have consumed countless hours of attorney time and judicial resources. Yet in Arizona, only five cases have been reversed over a Batson challenge.”
The stakes are very high if racial minorities are less likely to serve on a jury than white Americans. A 2012 study of felony trials in Florida, for example, found that Black defendants are 16 percent more likely to be convicted than white defendants when no Black person serves on the jury. This gap disappears if the jury has a single Black member.
The upshot of the Arizona Supreme Court’s new rules is that racial discrimination through peremptory strikes will cease to exist in Arizona because peremptory strikes will themselves cease to exist. But the new rules were also criticized by prosecutors and at least some defense lawyers because they will take away a tool that can potentially be used to screen out biased jurors.
Ultimately, the state supreme court appears to have decided that the benefits of eliminating peremptory challenges, including the benefit of eliminating a frequent vehicle for race discrimination, outweigh the risk of having some bad jurors remain on juries.
The case against peremptory challenges
Peremptory challenges have a long pedigree that predates the United States. Yet while the practice existed in English courts for many centuries, English prosecutors were stripped of their ability to exercise peremptory strikes as far back as 1305.
It was, instead, a protection afforded to defendants. As William Blackstone, a famous chronicler of English law, wrote in 1769, criminal defendants retained an “arbitrary and capricious species of challenge to a certain number of jurors” out of respect for the principle of “in favorem vitae,” a Latin phrase meaning “in favor of life.” The idea was that, if the life or liberty of a criminal defendant could be placed in the hands of a jury, the defendant should have some ability to exclude jurors who might be biased against them.
American courts, however, largely have not followed the centuries-old English practice of only giving peremptory strikes to defense counsel. Typically, federal and state courts within the United States permit prosecutors and defense lawyers to exercise some peremptory challenges — although some jurisdictions do give extra challenges to the defense.
Indeed, peremptory strikes are so widely used by prosecutors and defense attorneys that, when assembling a pool of potential jurors, courts typically summon far more potential jurors to serve jury duty than they actually need — because the courts assume that many of these potential jurors will either be removed for cause or removed by a peremptory challenge.
Batson recognized that peremptory strikes may be used to remove jurors for unconstitutional reasons. “Purposeful racial discrimination in selection of [potential jurors] violates a defendant’s right to equal protection,” Justice Lewis Powell wrote for the Court in Batson. It also violates the rights of the jurors themselves, who should have an equal opportunity to decide the fate of their peers, regardless of their race.
Yet, while racially motivated peremptory strikes are unconstitutional in theory under Batson, Justice Powell’s decision also made it very difficult for courts to sniff out discrimination.
Under Batson, if the defendant raises a credible claim that a juror was excluded because of the juror’s race, the prosecution must “come forward with a neutral explanation” for why it decided to exclude a particular juror. At that point, it’s up to the judge to determine whom to believe.
One problem with this system is that there are all kinds of lawful reasons a prosecutor may wish to strike a juror who happens to be a person of color. The prosecutor may legitimately believe that the juror expressed a bias against police, for example. Or they may simply feel that the juror seemed inattentive during the juror screening process. The Constitution forbids excluding a juror because the juror is of a particular race, but it doesn’t forbid a prosecutor from striking a juror for being inattentive or a skeptic of police, even if that juror is also a person of color.
Peremptory strikes may be used to remove a juror for completely arbitrary reasons. In Purkett v. Elem (1995), for example, the Supreme Court permitted a prosecutor to strike two Black jurors because the prosecutor disapproved of one juror’s “long hair” and thought that both jurors’ “mustaches and the beards look suspicious to me.”
Judges are not mind readers. So, when faced with a prosecutor’s race-neutral explanation for why they struck a particular juror, a judge will often have no way to determine that the prosecution’s real motive was racism.
Many prosecutors are even trained on how to devise pretextual reasons to exclude jurors. In 2004, Texas prosecutors were advised to tell judges that they excluded jurors not because of a particular juror’s race, but because the juror “agreed with O. J. Simpson verdict” or “watched gospel TV programs.”
Data suggest that racial jury discrimination is widespread, even after Batson. The Arizona Supreme Court decided to eliminate peremptory challenges after two of the state’s appellate judges petitioned them to do so. That petition, co-authored by Judges Peter B. Swann and Paul J. McMurdie, cites several studies suggesting that people of color are unusually likely to be excluded from juries.
A study of capital cases in North Carolina, for example, found that prosecutors “were responsible for eliminating 12% of whites who went through the [jury selection] process without being removed [for cause], and 35% of blacks who did so,” while “the defense’s strikes eliminated 35% of whites who were not removed [for cause], and 3% of blacks.”
A study in Mississippi found that “Black venire members are 4.51 times as likely to be excluded from a jury due to peremptory challenges from the prosecution in comparison to White venire members.” And federal data shows that “in criminal cases, the proportion of white jurors seated varied only 3% from their representation in the population.” Meanwhile, “black jurors were underrepresented by 16%, Native American jurors were underrepresented by 51% and Hispanic jurors were underrepresented by 21%.”
Courts, moreover, have been aware of similar data for at least the past several decades. In Batson, which was decided in 1986, Justice Thurgood Marshall wrote a concurring opinion arguing that the goal of ending race discrimination in jury selection “can be accomplished only by eliminating peremptory challenges entirely.”
Marshall cited a raft of studies arguing that race discrimination in the use of peremptory strikes was pervasive, including a study of prosecutions in Dallas that found that “the chance of a qualified black sitting on a jury was 1 in 10, compared to 1 in 2 for a white.”
Thirty-five years after Batson, it appears that Marshall was correct that Justice Powell’s decision did not go far enough, if the goal was to prevent race discrimination in jury selection. The disparities Marshall warned about in Batson remain widespread.
Arizona’s new rules do add some uncertainty to criminal trials
The primary argument for retaining peremptory challenges is that eliminating them will prevent trial attorneys from removing jurors who they correctly believe might be biased, even if the juror doesn’t do anything suspicious enough to justify removing them for cause.
Several prosecutors criticized the Arizona Supreme Court’s move, arguing that, in the words of Maricopa County prosecutor Kenneth Vick, “expecting a prospective juror to candidly admit that they cannot be fair is not realistic.” Trial lawyers often pay close attention to a potential juror’s body language or other subtle signals when determining whether to exercise a peremptory strike, rather than relying solely on how the juror responds to lawyers’ questions.
Scott Greenfield, a criminal defense lawyer in New York, offered a similar criticism of the new Arizona rules on his personal blog. Greenfield warned of a situation where a criminal defense attorney spots “a glint of hatred as [a potential juror] stares at the defendant,” but the lawyer is unable to remove that juror because they can no longer exercise peremptory strikes.
There are two reasons, however, to be hopeful that Arizona’s experiment with eliminating peremptory challenges will not lead to systemic injustices against a defendant. One is the Supreme Court’s recent decision in Ramos v. Louisiana (2020), which held that “the Sixth Amendment’s right to a jury trial requires a unanimous verdict.”
That’s not a perfect safeguard against biased jurors — as Greenfield argues, there is a risk that the “juror with the killer eyes” will convince a juror who is inclined to vote for acquittal to flip their vote. But the requirement that convictions must be unanimous does diminish the ability of a biased juror to sway a verdict toward conviction.
The other reason to be optimistic that Arizona’s new rules might succeed is that, while they are novel within the United States, they are in line with the rules in other democracies. Great Britain, for example, eliminated peremptory challenges in 1988, and Canada did so in 2019.
Realistically, we cannot know what the full impact of Arizona’s new rules will be until the rules have been in place for some time. But, at the very least, Arizona’s experiment could teach us whether Justice Marshall was right when he warned that we cannot abolish discrimination in jury selection until we get rid of peremptory challenges.
Afghan soldiers stand guard after the American military left the Bagram Airfield, north of Kabul, on July 5. (photo: Rahmat Gul/AP)
s the United States ends its military presence in Afghanistan after 20 years of occupation and war, the Costs of War Project estimates it spent over $2.2 trillion in Afghanistan and Pakistan, and by one count, over 170,000 people died during the fighting over the last two decades. Kathy Kelly, longtime peace activist who has traveled to Afghanistan dozens of times and coordinates the Ban Killer Drones campaign, says it will be important to keep international focus on the people of Afghanistan. “Everybody in the United States and in every country that has invaded and occupied Afghanistan ought to make reparations,” Kelly says. “Not only financial reparations for the terrible destruction caused, but also to address … the systems of warfare that ought to be set aside and dismantled.”
AMY GOODMAN: This is Democracy Now!, democracynow.org, The War and Peace Report. I’m Amy Goodman, with Juan González.
U.S. military and diplomatic forces withdrew from Afghanistan just before midnight local time in Kabul Monday night. While the move is being described as the end of the longest war in U.S. history, some warn the war may not be truly over. On Sunday, Secretary of State Tony Blinken appeared on Meet the Press and discussed U.S. capabilities to keep attacking Afghanistan after troops withdraw.
SECRETARY OF STATE ANTONY BLINKEN: We have the capacity around the world, including in Afghanistan, to take — to find and to take strikes against terrorists who want to do us harm. And as you know, in country after country, including places like Yemen, like Somalia, large parts of Syria, Libya, places where we don’t have boots on the ground on any kind of ongoing basis, we have the capacity to go after people who are trying to do us harm. We’ll retain that capacity in Afghanistan.
AMY GOODMAN: Back in April, The New York Times reported the United States is expected to keep relying on a, quote, “shadowy combination of clandestine Special Operations forces, Pentagon contractors and covert intelligence operatives” inside Afghanistan. It’s unclear how these plans have changed following the Taliban takeover.
For more, we’re joined in Chicago by the longtime peace activist Kathy Kelly. She’s been nominated for the Nobel Peace Prize over and over again. She’s traveled to Afghanistan dozens of times.
Kathy, welcome back to Democracy Now! Can you start off by responding to what is being hailed in the U.S. press as the longest war in U.S. history is over?
KATHY KELLY: Well, Ann Jones once wrote a book entitled War Is Not Over When It’s Over. Certainly, for people in Afghanistan, who have been afflicted by this war, by conditions of terrible drought for two years, a third wave of COVID, terrible economic realities, they’re still suffering a great deal.
And the drone strikes, I think, are an indication that — these most recent drone strikes, that the United States has not set aside its intent to keep on using what they call force and precision, but what Daniel Hale, who is now in prison, has shown 90% of the time did not hit the intended victims. And this will cause more desires for revenge and retaliation and bloodshed.
JUAN GONZÁLEZ: And, Kathy, I wanted to ask you, in terms of this — do you feel that the American people will draw the best lessons from this terrible situation in Afghanistan, this clear defeat for the United States and its occupation? After we’ve seen now for 70 years U.S. military force exercised in these occupations, from Korea to Vietnam to Libya to — the Balkans is the only thing that the U.S. can sort of claim as a victory. There have been disaster after disaster, now Afghanistan. What lesson would you hope our population would learn from these terrible occupations?
KATHY KELLY: Well, Juan, you know, I think the words of Abraham Heschel apply: Some are to blame; all are accountable. I think everybody in the United States and in every country that has invaded and occupied Afghanistan ought to make reparations and really earnestly seek that, not only financial reparations for the terrible destruction caused, but also to address the systems that you’ve just mentioned played out in country after country, the systems of warfare that ought to be set aside and dismantled. This is the lesson that I think U.S. people need to learn. But, you know, there was more coverage in the last two weeks by mainstream media of Afghanistan than there had been in the past 20 years, and so people are underserved by the media in terms of understanding the consequences of our wars.
AMY GOODMAN: You are not in the business, Kathy, of complimenting U.S. presidents when it comes to war. And this was one U.S. president after another, I think, for at least, overall. Do you think Biden had political courage in pulling out, to the extent that they have, publicly, the last U.S. troop, the photograph sent out by the Pentagon, by the general getting on the last transport carrier and leaving?
KATHY KELLY: I think had President Biden said that he was also going to go up against the United States Air Force request for $10 billion to enable over-the-horizon attacks, that would have been the kind of political courage that we need to see. We need a president who will stand up to the military contracting companies that make billions by marketing their weapons, and say, “We’re done with all of it.” That’s the kind of political courage we need.
AMY GOODMAN: And the over-horizon attacks, for people who are not familiar with this term, what it means, how the U.S. is set up to attack Afghanistan now from outside?
KATHY KELLY: Well, the $10 billion that the U.S. Air Force requested will go to maintaining both drone surveillance and attack drone capacity and manned aircraft capacity in Kuwait, in the United Arab Emirates, in Qatar and in an aircraft and the middle of the ocean. And so, this will always make it possible for the United States to continue to attack, often people who aren’t the intended victims, and also to say to every other country in the region, “We are still here.”
AMY GOODMAN: We thank you, Kathy, so much for being with us. Ten seconds on reparations. What would it look like, when you say the U.S. owes reparations to the people of Afghanistan?
KATHY KELLY: A massive amount of money put in by the U.S. and all the NATO countries into perhaps an escrow account, that would not be under the guidance or the distribution of the United States. The United States has already shown that it can’t do that without corruption and failure. But I think we would have to look to the U.N. and groups that have a reputation for being able to truly assist people in Afghanistan, and then reparations through dismantling the war system.
AMY GOODMAN: Kathy Kelly, longtime peace activist and author, one of the founding members of Voices in the Wilderness, later Voices for Creative Nonviolence, and the co-coordinator of the Ban Killer Drones campaign and a member of the World Beyond War. She has traveled to Afghanistan nearly 30 times.
Next up, New Orleans in the dark after Hurricane Ida. Stay with us.
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AMY GOODMAN: “Song for George” by Mat Callahan and Yvonne Moore. Today is the last day of Black August to remember Black freedom fighters. And this month marks 50 years since the assassination of activist and prisoner George Jackson. The Freedom Archives has published a list of the 99 books George Jackson had in his cell.
Cargo ship. (photo: Bob Homer/Fairfax Media/Getty Images)
This month, the Swiss outdoor clothing company Mammut took a small but “industry-leading” step toward addressing emissions from fossil-fuel-powered ships.
ast month, the climate advocacy organizations Pacific Environment and Stand.earth released a report highlighting the hidden toll retail giants are taking on the planet by ferrying goods across the world on fossil-fuel-powered container ships. This month, the Swiss outdoor clothing company Mammut took a small but “industry-leading” step toward addressing that problem.
In early August, Mammut published a strategy document outlining its plans to reach net-zero carbon emissions across its operations by 2030. Buried in the 47-page report is a pledge to transport its goods on zero-emissions vessels by the end of the decade — a move climate campaigners believe to be a first for the retail sector.
How exactly the company will achieve that goal is, at this point, uncertain: Currently, every single merchant vessel on the high seas burns fossil fuels. But the relatively small Mammut, which brought in $240 million in revenue in 2020, sees its zero-emissions shipping pledge as an opportunity to draw attention to a part of the supply chain that’s badly in need of climate-friendly makeover, and to lead by example.
“We hope many others follow our way and also make this commitment in order to collectively build up pressure that’s needed and force change,” Adrian Huber, the head of corporate responsibility at Mammut, told Grist.
The shipping industry is one of the biggest climate problems most people never think about. Each year, tens of thousands of merchant vessels carrying everything from iron ore to iPhones burn enough heavy fuel oil to release more than a billion metric tons of carbon dioxide. This represents nearly 3 percent of global emissions, putting shipping in the same ballpark as the entire country of Japan, the world’s fifth-largest emitter, in terms of its climate impact.
The shipping industry doesn’t have a plan to aggressively reduce those emissions. While researchers have proposed a host of zero-emissions alternatives to fossil-fuel-powered shipping, including ships that run on renewably generated hydrogen or ammonia, battery-powered electric ships and even wind-powered ones, commercializing and deploying these solutions at scale is going to require trillions of dollars of investment.
To accelerate those investments, some advocates have begun putting pressure on the shipping industry’s clients — in particular, consumer-facing retail companies that have made climate commitments of their own in recent years. In their recent report, Pacific Environment and Stand.earth call on companies like Walmart, Target, and Amazon to phase out their reliance on ships that run on fossil fuels over the next decade. A separate Stand.earth report on corporate climate commitments in the fashion industry, released on Tuesday, found that of 47 brands evaluated, just 18 have established supply chain emissions-reduction targets that include shipping.
“We need these retailers to be committing specific volumes of freight on the world’s first zero-emissions vessels,” Madeline Rose, the climate campaign director at Pacific Environment and lead author on the recent report, told Grist. “That’s the type of demand signal we need.”
Mammut now appears eager to be among the first movers. In crafting its recent net-zero pledge, the clothing company conducted an exhaustive inventory of its “scope 3” emissions — those associated with its supply chain as well as the use of its products, which collectively account for 95 percent of Mammut’s carbon footprint. It found that an outsized portion of these emissions comes from transporting goods on carbon-intensive flights. As a result, Mammut pledged to move more of its goods via ships.
But while ships emit considerably less carbon per mile when adjusted by weight than planes do and account for less than 1 percent of Mammut’s overall emissions by the company’s math, Mammut didn’t want to leave them out. While it plans to purchase carbon offsets to zero out any emissions, shipping or otherwise, that it can’t eliminate, the company also pledged to start moving goods on zero-emissions vessels by 2030, and to use ships that practice “slow steaming,” deliberately reducing their speed in order to burn fuel more efficiently.
“A number of mainly U.S.-based consumer companies plan to announce decarbonization strategies including eliminating emissions from their shipping activities,” Mads Peter Zacho, the head of industry transition at the nonprofit Mærsk Mc-Kinney Møller Center for Zero Carbon Shipping, told Grist in an email. “Mammut is taking it one step further with an ambitious time schedule which we highly support.”
It remains to be seen just how many zero-emissions vessels Mammut will be able to charter by the end of the decade. Such ships currently don’t exist, and the closest thing — a “carbon-neutral” vessel powered by green methanol, which can be made from plant matter, biogases captured from waste facilities, or sustainably sourced hydrogen and carbon — isn’t expected to hit the high seas until 2023. Huber of Mammut says that the company is “at the very beginning of starting conversations with our logistics providers” about zero-emissions shipping and sees its commitment as “a starting point going into these discussions.”
Researchers have estimated that if zero-emissions fuels made up just 5 percent of the fuel mix by 2030, that would put the industry on a path to fully decarbonize by 2050, in line with the Paris Agreement’s climate goals.
Knowing that clients are committed to climate-friendly shipping — and willing to pay a little extra for it — will be vital to propelling the industry toward that goal, says Simon Bergulf, head of regulatory affairs at Maersk, the world’s largest shipping company. (Maersk is one of the founding partners at the Maersk Mc-Kinney Møller Center for Zero Carbon Shipping.) Among Maersk’s clients, interest in sustainable shipping is growing rapidly, and that’s motivated the company to try and stay one step ahead by offering low-carbon shipping options today and setting an internal target of net-zero emissions by 2050, Bergulf says. Maersk recently announced that it is investing $1.4 billion in eight new vessels that will run on green methanol starting in 2024.
“Now when we’re having the negotiations with our customers, there’s no longer just a logistics person sitting there,” Bergulf said. “There is generally a sustainability or decarbonization person sitting with him or her. And she/he is also part of the discussion and equally important in the decision to use a carrier versus another carrier.”
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