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Is
it fair to value the life of an innocent black man
at only one-fourth of that of an innocent white man?
The General Assembly is asking Marvin Lamont
Anderson to roll the dice with that possible
outcome, at least as SB 863 stands now when compared
to the wording of similar legislation passed last
year for Mr. Jeffrey D. Cox. But more on this issue
and my role in helping to stop this injustice in a
moment.
First, let me address the key legal issue hidden
deep inside this Richmond Times-Dispatch story,
the one with this sensational headline:
"Governor Criticizes Va. Tech Policies: Race,
Gender Bias Barred by Board." The college
trustees said they based their decision to bar
consideration of race and gender in admissions and
hiring policies on legal advice given by Attorney
General Jerry Kilgore.
A
Warner spokesman quickly accused the Board and
Kilgore of playing right-wing politics, throwing a
boomerang that made the governor appear to be
politicizing what needs to be a serious legal and
educational policy discussion. In response,
Kilgore's office said the "suggestion by the
governor and others that the law be ignored is
irresponsible."
I would hope the governor will publicly reject
making this a partisan political issue. Indeed,
thoughtful Virginians need to focus on what may turn
out to be the biggest bombshell in the attorney
general's legal reasoning, as revealed in a
paragraph buried deep inside reporter Carlos Santos'
excellent Times-Dispatch story:
"Kilgore's office said his
legal advice flowed from an April 2002 accord signed
by the state and the U.S. Office of Civil Rights
acknowledging that past practices of racial
discrimination have been corrected and no further
remedial action is necessary. This means colleges
can act to promote diversity but only within narrow
limits, his office said." A 2002 resolution of
the General Assembly, unanimously supporting this
"accord," makes it clear that the
"racial discrimination" mentioned by Mr.
Kilgore's office relates to the discriminatory
effects of the "former segregated de jure
system," including policies that forced former
Governor L. Douglas Wilder to leave the state in
order to attend law school, which operated well into
the 1960s.
To anyone familiar with the legal, social and
political history of Virginia, the Attorney
General's reasoning is of potentially monumental
significance -- and it should have set off alarm
bells in the Warner administration, assuming it came
as a surprise.
According
to Mr. Kilgore, this "accord" -- one that
neither I nor most other Virginians ever knew
existed, much less have ever read about --
apparently has wiped out, with the stroke of a
governor's pen, a major legal weapon available to
remedy the effect that segregationist policies still
have on many Virginians.
Whether former Gov. Jim Gilmore -- the accord
apparently referred to in the RTD
story was actually signed by him in November of 2001
-- realized this potential legal ramification is not
clear, and the same for Warner Administration.
Let
me ask you: In a state where the governor's
spokesman can accuse former Governor Doug Wilder of
being too sensitive to the use of the Confederate
flag by a Democratic political candidate, in a state
where you can not raise a statue of Abraham Lincoln
without causing a furor, in a state where there is
not a single monument to an African-American on the
Capitol grounds, do you expect any reasonable
Virginian to believe that the effects of segregation
are all over, wiped off the books by gubernatorial
magic, as if they never happened?
Segregation was the law of Virginia until 1965,
rigidly enforced by the Byrd Machine. Harry F.
Byrd's life-sized statute, prominently located, was
the last such monument to be placed in Capitol
Square. In 2001, the leadership of the Democratic
Party placed a wreath at his feet, praising his
fiscal policies even though they presumably knew
these financial practices had been crafted to
support his segregationist social policies. In 1989,
the Republican candidate for governor, with the full
endorsement of his party, played the "race
card" in order to win the highest office in the
state, even challenging the results of the election
on the grounds that Doug Wilder was elected by the
illegal votes of convicted felons.
Virginia
has made great strides, for which we all should be
proud and owe so much to so many. I tell my
political friends up North they had best start
trying to catch-up. But is it time to pretend that
segregation, a policy that wrongly damaged hundreds
of thousands of Virginians still alive today, is but
a memory? Absolutely not.
For the highest elected officials of the
Commonwealth of Virginia to give up legal power to
correct past injustices inflicted upon its citizens
is beyond my comprehension. But this is precisely
what the Attorney General of Virginia has apparently
told the Richmond Times Dispatch.
As
I write this column, there has been no public
reaction by the Warner Administration as to its role
in either interpreting or implementing the Gilmore
"accord," even though it is impossible for
such a legal document to be self-executing.
I can only encourage the administration both to
discuss the accord with the people of the
Commonwealth, and more importantly, for the governor
to tell his fellow Virginians whether he believes
the deal struck by his predecessor and approved by a
unanimous vote of the General Assembly, was the
right one for Virginia.
A
General Assembly commission has been impaneled to
help monitor the "accord," and it has
among its members Sen. Henry Marsh, D-Richmond, a
partner in a noted civil rights law firm. This
commission superseded previous commissions
overlooking higher education access and diversity
issues. It is due to give its report to the General
Assembly next year. But, surely, Virginia cannot
wait until next year to hear whether this
commission, made up of 10 state legislators, agrees
with Attorney General Kilgore's assessment of the
"accord."
Virginia has rejected quotas, and must continue to
reject them, for we must judge people on merit - a
point correctly made both by Attorney General
Kilgore and Governor Warner.
But
there is nothing meritorious in unilaterally
disarming in the fight against discrimination, for
the fight to give everyone the chance to be all they
can be is going to be won in the real world, not in
some document "Deficit Jim" Gilmore signed
as he was going out of office, leaving behind
apparently not just a legacy of fiscal
irresponsibility but perhaps another kind as well.
Gov. Warner has the sole responsibility to determine
whether this is the right "accord" for
Virginia: and if not, then he needs to tell the Bush
Administration that, while it took us more than a
year to come to our senses, the Commonwealth cannot
accept a bad deal signed by a lame duck governor
under highly questionable, last-minute political
circumstances.
So,
let's move now from legal abstractions to where the
rubber meets the road -- where, it seems, another
pothole has formed. The General Assembly website
says SB 863 is still on the Governor's desk for his
signature or amendment.
That's good, because the bill provides a real test
for responsible, thoughtful people to step up to the
plate and demonstrate a real commitment to equality
on a tough issue.
The
Governor has accepted the responsibility of meeting
this test, so I see no reason to allow the Attorney
General to duck it.
The facts are not in dispute. The bill provides
relief for Marvin Lamont Anderson, who was
incarcerated between 1983 and 1997 for a crime that
scientific evidence later revealed he did not
commit. The governor granted him a pardon last year.
Under the bill, the Commonwealth will provide
Anderson a lump-sum payment of $200,000 and pay
$460,000 to purchase an annuity providing him equal
monthly payments for the remainder of his life.
But
first, as a matter of full disclosure, I am working
with Don McEachin, the former candidate for attorney
general and Richmond-area lawyer, to bring the facts
in this matter to the attention of the governor and
the General Assembly. McEachin is exploring the
possibility of running for the state Senate in the
9th senatorial district. The incumbent is Benjamin
Lambert, the sponsor of SB 863.
For those who might think this is, therefore, a
political issue, let me say this: If McEachin had
wanted to play politics with this matter, then the
political thing to do was to say nothing, and then,
once the bill was signed into law and could not be
changed by the governor, go on the political
hustings with his devastating analysis.
But instead, McEachin has done the nonpolitical
thing: He has written the governor alerting him to
the bill's potential flaws and asked that they be
corrected, something which can only save every
member of the General Assembly from embarrassment.
Why? For the simple reason that the General Assembly
adopted this bill on the grounds that it promised to
treat Mr. Anderson the same as it had treated Mr.
Cox, who was likewise the beneficiary of a
"relief bill" passed last year for having
served 11 years for a crime he didn't commit.
Mr.
Anderson is black, and Mr. Cox is white. Thus, the
General Assembly knew that they were in the
spotlight, for the issue of treating both men
equally under the law was very much a part of their
public discussion of SB 863.
McEachin's
letter to Gov. Warner lays out the equality issue
for all to consider:
March 7, 2003
The Honorable Mark R. Warner
The Capitol Building
Third Floor
Dear Governor Warner:
I trust this letter finds you well. I am writing to
you to express my concerns, as well as the concerns
of others with SB 863 (The Anderson Bill). To
understand the community's concerns you will need to
familiarize yourself with last year's HB 789 (The
Cox Bill). The concern that may have is that when
one compares the two bills it would appear that the
General Assembly values one man's year of illegal
imprisonment (Mr. Anderson) less than another man's
imprisonment (Mr. Cox).
This disparity is underscored by the following
example. Let's assume that both Mr. Cox and Mr.
Anderson both die five years from now. HB 789
guarantees that the Cox heirs will receive the
balance of $750,000.00. SB 863 makes no such
guarantee to Mr. Anderson or his heirs. When one
does the math it becomes clear that Mr. Cox and his
heirs would receive upwards of 4 times -- that is
400 percent -- more for each year he spent in prison
than Mr. Anderson and his heirs would receive for
the years he spent in jail and on parole. Or, stated
another way, a year of Mr. Anderson's life is worth
about 25 percent of Mr. Cox's life.
Admittedly, depending on how long Anderson may live,
the terms of SB 863 could give him several hundred
thousands dollars more in annuity and lump sum
payments than Mr. Cox received.
However, under SB 863, Mr. Anderson is really being
asked to roll the dice because the bill requires
only that the state give him what is known as an
immediate annuity without any survivorship benefits,
unlike the Cox bill.
This may be a fair bet, although all the experts I
talked to you thought it was too great a risk for
Mr. Anderson to take given that he has a young son
and wife. Thus, if Mr. Anderson were to suffer an
untimely death, his family would receiving nothing
further from the annuity, the principal all going to
the insurance company.
But surely, the area of financial dealings is one
where Gov. Warner can improve upon what the General
Assembly has done.
Moreover, Mr. Kilgore, in his capacity as the
state's lawyer, surely has an interest in insuring
that Virginia not be seen as taking advantage of Mr.
Anderson yet a second time.
It is easy for a politician to talk about being for
equality in the abstract. For example, many people
in politics have claimed to have done this or that
to help Doug Wilder break the color line in Virginia
and American politics, now that he was successful
and they are safely from the real battlefield.
But talk is cheap. SB 863 cannot be amended by talk.
It will take action.
Mr. Anderson was wrongly in prison and on parole for
roughly twice as long as Mr. Cox. I am confident
that neither Sen. Lambert, nor any member of the
General Assembly, would object if the governor and
the attorney general recommend that the state show
its belief in equality by making the appropriate
changes to SB 863.
-- March 17, 2003
(c) Copyright. All rights reserved. Paul Goldman.
2003.
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