Featured faculty

■ faculty notes

Featured faculty

For Wayne State University Law School faculty, scholarship is an instrument of change. Here, we provide excerpts from the recent work of two professors — Jamila Jefferson-Jones and William Ortman — who are changing the conversations in the fields of criminal justice, property and critical race theory.

Jamila Jefferson-Jones
Professor of Law
Associate Director of Property, Equity and Justice, Damon J. Keith Center for Civil Rights

From #LivingWhileBlack: Blackness as Nuisance
American University Law Review (2020) (with Taja-Nia Y. Henderson)

The use of criminal law regimes to enforce racial boundaries and property entitlements has a long history in the United States. During the civil rights movement, police were summoned throughout the Jim Crow South for the express purpose of forcibly removing Black sit-in demonstrators and their white allies from lunch counters and other public accommodations segregated by law or practice. In tandem with the racialized crime of “vagrancy,” criminal trespass was the predicate for the arrest and imprisonment of thousands of young people across the South during Freedom Summer. Local leaders throughout the region resolved to quell the sit-in movement using purportedly “colorblind” policing strategies. Since criminal trespass typically requires only that a rights holder has refused entry to a non-rights holder, the crime could be used by local law enforcement to intimidate, stigmatize and terrorize activists into giving up the fight against Jim Crow. State legislatures responded to successive sit-in demonstrations with increasingly severe criminal sanctions for trespass, vagrancy and disorderly conduct. In her extensive account of how local law enforcement officers terrorized Freedom Riders with false arrests and imprisonment, Mary Hamilton recalled that police in New Orleans arrested her and two other women at the city’s bus terminal and charged them (falsely) with vagrancy:

Although I had $15, and am a housewife; and the other Rider had $20, and is a student, and the third one of us lives, and is employed, in New Orleans, we were nonetheless picked up on charges of (1) vagrancy, and no visible means of support; and (2) loitering. Where else can you catch a bus except at a bus stop? I don’t know. But in New Orleans that was called “loitering.”

When perceived racial differences underpin a dispute over property, the complaining litigant is arguably asking the court to both set and enforce an entitlement to racial/racist stratification and hierarchy. In the #LivingWhileBlack incidents catalogued here, 911 callers requesting the assistance of law enforcement are, arguably, demanding that police set and enforce an entitlement to racial stratification in the form of a white right to exclude. It is largely irrelevant whether #LivingWhileBlack antagonists explicitly articulate any racist beliefs; the right to exclude, which each of them has self-assumed, is necessarily racialized to the extent that callers are, literally and figuratively, policing Black physical proximity.

In these incidents, even the common law of trespass is racially coded, typically in terms of “belonging.” Whether in private, public or “third places,” antagonists in these incidents have sought to leverage local law enforcement to police Black belonging in ways strikingly similar to earlier efforts to criminalize civil rights activists as “vagrants.” As Risa Goluboff has argued, “Vagrancy laws are gone, but treating African Americans like vagrants continues.”

William Ortman
Associate Professor
Edward M. Wise Research Scholar

From Confrontation in the Age of Plea Bargaining
Columbia Law Review (2021)

The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Crawford v. Washington recognized that the crucial question in implementing this text is figuring out who counts as a “witness against” an accused. The court answered the question by defining a witness for purposes of the Confrontation Clause as one who (1) makes a “testimonial” statement that (2) the government uses at trial. I take the “testimonial” component of the definition — which has generated a lion’s share of the scholarly attention and case law — as given. Instead, I challenge the requirement that the statement be used at trial.

The court’s trial-centric gloss on what it means to be a “witness against” an accused is at odds with the reality of the American criminal legal system — a “post-trial world” where the critical adjudicator is usually a prosecutor, not a judge or jury. If only “trial witnesses” count as “witnesses,” then in a world without trials there can be few “witnesses” and very little confrontation. The court’s restrictive gloss on “witnesses” is also inconsistent with the Sixth Amendment’s text, which attaches the confrontation right to those facing “criminal prosecution,” not just those in trial …

So then who are the “witnesses against” defendants in a system of pleas? They are the people whose “testimony” is used in the only adjudication that routinely matters — the plea bargain. The Confrontation Clause, I argue, commands that the government confront the defendant with those people, and the natural procedural mechanism for such confrontation is a deposition. I therefore propose that in the age of plea bargaining, the Confrontation Clause entitles criminal defendants to take the deposition of any accusatory “witness” whom prosecutors rely on in plea bargaining. Depositions are not a routine part of criminal practice today in the federal system or in most states. But a few states already allow criminal defendants to take them, and nothing about the logic of criminal litigation is inconsistent with depositions.

The objective for “Sixth Amendment depositions” would be to incorporate adversarial testing into plea bargaining outcomes. If the government’s witnesses performed well under cross-examination, the prosecutor’s negotiating leverage would increase, and with it the price of a plea. If the witnesses did poorly, that would strengthen the defendant’s hand. But whether depositions led to a higher or a lower plea price in any particular case, adversarial testing of the government’s evidence would have contributed to a fairer and more reliable adjudication. That is the Confrontation Clause’s purpose. By modernizing the confrontation right, by bringing it into the 21st century (or just the 20th), the court could restore some of the adversarial process that plea bargaining has upended.

Learn More

Read #LivingWhileBlack: Blackness as Nuisance and Confrontation in the Age of Plea Bargaining at law.wayne.edu/faculty/scholarship.

Back to issue