Fletcher on Policing and Anishinaabe Political Philosophy

Fletcher’s new working paper is up on SSRN: “Erasing the Thin Blue Line: An Indigenous Proposal.

Here is the abstract:

The article was inspired by the statements of support for the Black Lives Matter movement from state supreme courts like those in Washington and California, and elsewhere. I am a tribal appellate judge for several tribes here in Michigan, and I serve on the Michigan Tribal-State-Judicial Forum. In part, this article is addressed to the state judges who have spoken out on BLM and the judges on the Michigan forum who speak out in favor of Indian children. The novel claim of the article is that the Supreme Court long has used what I term “social contract talk” to demean, dehumanize, and marginalize POC and lower income persons most likely to be subjected to police interventions. This “social contract talk” is not the law, but enables judges to grant police (and prosecutors, though I don’t address them directly) immense discretion to target POC and lower income persons, and to immunize them from legal consequences. Weaponized “social contract talk” recalls the origin of the social contract in America, which enabled and encouraged slavery and dispossession of Indigenous peoples. I offer an alternative to social contract talk rooted in Anishinaabe political philosophy, which encourages inclusion, healing, and accountability. Many tribes have relatively little policing of their territories and a completely different mentality about criminal justice.

New Article on Racial Bias in Evidence Rules

Jasmine Gonzales Rose has posted Toward a Critical Race Theory of Evidence on ssrn. The article is forthcoming in the Minnesota Law Review.

Here’s the abstract:

Scholars, judges, and lawyers have long believed that evidence rules apply equally to all persons regardless of race. This Article challenges this assumption and reveals how evidence law structurally disadvantages people of color. A critical race analysis of stand-your-ground defenses, cross-racial eyewitness misidentifications, and minority flight from racially-targeted police profiling and violence uncovers the existence of a dual-race evidentiary system. This system is reminiscent of nineteenth century race-based witness competency rules that barred people of color from testifying against white people. I deconstruct this problem and introduce the original concept of “racialized reality evidence.” This construct demonstrates how evidence of people of color’s lived experiences of systemic racism are regularly excluded at trial, while evidence of white norms and beliefs receives “implicit judicial notice.” Finally, I advocate for a new critical race theory of evidence law and offer solutions — including a reinterpretation of Federal Rule of Evidence 403 — to increase equality in the courtroom.