ACLU Argues Before Louisiana Supreme Court That Confederate Flag Outside Courthouse Taints Capital Punishment System

The American Civil Liberties Union today argued before the Louisiana Supreme Court that a murder conviction and death sentence should be overturned because the Confederate flag flying outside the Caddo Parish Courthouse prevents criminal justice from being fairly administered, particularly in death penalty cases.

The ACLU and other groups, along with dozens of religious leaders, historians and legal scholars, filed a friend-of-the-court brief last month saying the conviction and subsequent sentencing to death of Felton D. Dorsey in 2009 should be overturned because, among other reasons, the 11 whites and one African-American that comprised his jury walked past the flag dozens of times before rendering a verdict and voting on a sentence. Dorsey is African-American and African-Americans comprise nearly half of Caddo Parish's population.

"We hope that the court will recognize that racial bias has no place in the capital punishment system," said Anna Arceneaux, staff attorney with the ACLU Capital Punishment Project who delivered arguments today. "The Confederate flag is viewed by many people as a symbol of white supremacy and racism, and its presence outside the courthouse represents the legacy of lynching, terror and oppression of the African-American race. Flying the flag outside the courthouse risks diminishing the trust of African-Americans in the criminal justice system and priming white jurors to view African-American defendants and victims as second-class citizens."

The flag was raised on public land outside the courthouse in 1951 during a period often referred to as the "Second Reconstruction," as an act of resistance to the civic and civil rights advances of African-Americans. The flag flies beside a Confederate monument commissioned in 1903 by parish officials at a time of strong resistance to civil rights reforms promised by the 13th, 14th and 15th Amendments passed in the wake of the Civil War. The monument was meant to honor the parish as the last stand of confederate Louisiana.

According to the ACLU's brief, the flag outside the courthouse has a substantially adverse impact on the administration of justice inside the courthouse. It poses the intolerable risk that criminal justice can not be fairly administrated within its walls, particularly in death penalty cases, in violation of the Eighth Amendment. The flag denied Dorsey a fair trial, according to the ACLU's brief, denied potential African-American jurors the opportunity to serve on Dorsey's jury and risked tainting with racial bias all jurors, potential jurors, witnesses and citizens who attended and participated in the court proceedings conducted underneath it.

In Dorsey's case, Shreveport resident Carl Staples, a potential African-American juror, was struck by the prosecutor in Dorsey's case after expressing frustration with the systemic injustices inherent in the nation's criminal justice system. He highlighted the presence of the Confederate flag outside the courthouse as symbolizing the pernicious realities that serve to undercut his faith in the system. As Staples told the court, to him, the flag represents "a symbol of one of the most . . . heinous crimes ever committed to another member of the human race, and I just don't see how you could say that, I mean, you're here for justice, and then again you overlook this great injustice by continuing to fly this flag which . . . put[s] salt in the wounds of . . . people of color."

According to the ACLU's brief, even if other African-American prospective jurors in Dorsey's case did not express similar concerns as Staples, at least some others were undoubtedly disturbed by the flag and may have sought to avoid jury service. African-American jurors who do serve on Caddo Parish juries may well be hesitant to return verdicts inconsistent with the principles the flag celebrates, especially in cases such as Dorsey's which involve an African-American defendant and a white victim.

Psychological research also shows that the flag creates an unacceptable risk that implicit racial bias could impact the trial process, particularly when the defendant is African-American. A recent study by a Florida State University social psychologist found that exposure to images of the Confederate flag increases the expression of negative attitudes toward African-Americans among whites.

"The Confederate flag represents for many people, and particularly for African-Americans, the public entrenchment of racism in Caddo Parish's judicial system and is an endorsement of historical efforts to deny African-Americans equality under the law," said Arceneaux. "Allowing it to fly outside the Caddo Parish courthouse sends a clear statement that capital punishment cannot be fairly administered within the courthouse walls."

A copy of the ACLU's friend-of-the-court brief is available online at: www.aclu.org/racial-justice/aclu-amicus-brief-support-new-trial-felton-d-dorsey-0