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Black Lives Matter: How Bernie Can Win Way More Black Voters

Speaking in support of Black Lives Matter, Bernie Sanders and Hillary Clinton frequently invoke the names of Eric Garner, Michael Brown, Sandra Bland, and others killed by police or who were victims of police misconduct. But neither has yet come forth with clear proposals to put a stop to rampant police violence against African Americans and end police impunity.

Black voters have been crucial for Hillary so far

Eight of Hillary’s eleven state primary victories so far were in the deep south, where she won by huge margins primarily because of overwhelming support by black voters.

Of the twenty states that have so far voted, other than the eight southern states, Michigan is the only one with a substantial black population. Although he still lost the black vote, Bernie did much better among black voters in Michigan than he had in the southern states. Exit polls in Michigan showed Bernie losing black voters to Hillary “by only 32 percentage points” whereas he lost by 70 or 80 points in the South. The improvement among black voters for Bernie in Michigan accounts for his upset victory there. Still, Bernie’s substantial victory in the rest of the state was cut razor thin overall because cities and towns in its most populous county, which includes Detroit with its large black majority, gave 60% of their vote to Hillary.

The black vote has been crucial to Hillary’s 195 pledged-delegate lead so far. Black voters will continue to be decisive in determining who wins in several of the remaining 30 states. Further improvement in Bernie’s appeal to black voters could make the difference in those states.

Equal Justice Under Law is key

“Equal justice under law,” is the long-established legal and human rights principle upon which Bernie could change the dynamic. Or upon which Hillary could solidify her hold.

“Equal justice under law” is a concept so deeply embedded in the US legal system that the words are engraved in granite above the entrance to the Supreme Court. As embodied in the 14th amendment – ratified after the Civil War but still not fully implemented – every person by law is entitled to “equal protection of the laws” and “due process of law.”

Among other things, equal justice under law means that police misconduct must be prosecuted with the same zeal that black criminal defendants are prosecuted now. One fact illustrates the heavy hand tilting the scales of justice toward impunity for cops: Local and state prosecutors have a built-in conflict of interest when investigating and/or prosecuting police.

Equal justice under law requires appointment of an independent and impartial special prosecutor to investigate and prosecute police brutality, killing, or any other police misconduct. If a reasonable person would question the independence of judgment of the usual prosecutor, whether elected or appointed, because of race or because of day-to-day association with, cozy relationship with, or dependence on the police for collection of evidence, that prosecutor must be replaced. Allowing the usual prosecutor, state’s attorney, or attorney general, to control the investigation and prosecution cannot provide equal justice for victims of police misconduct.

Equal justice requires establishing a special prosecutor branch in the US Department of Justice to supervise investigation and prosecution of alleged police misconduct under state criminal law.

Equal justice requires immediate federal investigation of alleged police misconduct where race may be a factor in parallel with a state or municipal investigation (to his credit, Bernie called for immediate federal investigation of all police killings during the presidential debate in Flint Michigan on March 6).

Equal justice requires reopening the murder cases under state law against the cops who killed Eric Garner and Michael Brown under independent and impartial special prosecutors. These cases had been closed by local prosecutors who had a conflict of interest after bogus grand jury proceedings. Equal justice requires recognition that jeopardy does not attach in grand jury proceedings. As the US Supreme Court said, “The Double Jeopardy Clause of the Fifth Amendment does not bar a grand jury from returning an indictment when a prior grand jury has refused to do so” United States v. John H. Williams, Jr., (1992). Thus, no legal bar precludes reopening these cases against the killer cops under independent and impartial special prosecutors.

The fact that “Equal Justice Under Law” was inscribed in granite on the face of the US Supreme Court building has so far been an empty promise for black Americans. If actually implemented with regard to killer cops, police impunity can be abolished, lifting one of the heavy burdens on black communities.

Bernie can effectively advocate that equal justice for victims of police misconduct requires the appointment of independent special prosecutors to investigate and prosecute under state criminal law. He can call for reopening the cases against the cops who killed Eric Garner and Michael Brown under such an independent and impartial special prosecutor. If he does, he will demonstrate a commitment to justice promised in the civil war amendments that is still far from being achieved. He will demonstrate the kind of practical problem solving and leadership that can win the hearts and minds of black voters, and all progressive minded people, increase voter turnout, and build an unstoppable movement for change.

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James Marc Leas is a patent attorney and a past co-chair of the National Lawyers Guild Palestine Subcommittee. He collected evidence in Gaza immediately after Operation Pillar of Defense in November 2012 as part of a 20 member delegation from the U.S. and Europe and authored or co-authored four articles for Counterpunch describing findings, including Why the Self-Defense Doctrine Doesn’t Legitimize Israel’s Assault on Gaza. He also participated in the February 2009 National Lawyers Guild delegation to Gaza immediately after Operation Cast Lead and contributed to its report, “Onslaught: Israel’s Attack on Gaza and the Rule of Law.”

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