A view of the Mississippi State Capitol. The Republican supermajority in Mississippi's Legislature is pushing a new law that would divert some criminal and civil cases away from powerful elected Black judges in Jackson and toward unelected judges. Some opponents of the bill say the situation amounts to imposition of white supremacy on Jackson and highlights Mississippi's history of slavery and segregation. (iStock.com/CRobertson)
As a girl attending segregated schools in Jackson, Mississippi, Tomie Green, now 70, recalls opening old textbooks and seeing pages that listed the names of the many white children who had used the books before Black children had a chance to read them.
Through her family's support and force of will, she went on to earn a law degree, landed a job as a prosecutor, then made her way to a seat in the state Legislature. Finally, she won election to a judgeship on the Hinds County Circuit Court in Jackson where, for more than 20 years, she handled felony trials and some of the area's biggest civil lawsuits.
She retired on Jan. 1 as the court's senior judge, capping a career that would have been impossible for her great-grandmother, who lived in slavery.
Just days after retirement, however, she received a concerning text message.
The message, sent from a state lawmaker to a Black lawyers' association, was how she learned that the Republican supermajority in Mississippi's state Legislature was pushing a bill that would radically transform Jackson's independently elected court system.
Under the bill, known as H.B. 1020, some cases would be diverted from the four elected judges serving on the circuit court today, all of whom are Black, and sent to appointed judges.
The chief justice of the Mississippi Supreme Court would pick the new judges.
"If you've lived in Mississippi any length of time, you know what that means," Judge Green told Law360.
The current chief justice is white, as are seven of his eight colleagues on the court.
Judge Tomie Green retired on Jan. 1, 2023 as senior judge on the Hinds County Circuit Court, having spent more than 20 years handling some of the most significant criminal and civil cases in the Jackson, Mississippi, area. (Courtesy of Judge Tomie Green)
"There's a fear that we can't be competent, even though we went to the same law schools, passed the same bars, that we are just not always fit to be there," she said.
Rep. John Thomas "Trey" Lamar, the Republican sponsor of the bill, which has been amended since passing the House last month, insists there is no racial animus and that he and others just want to help Jackson address both its judicial backlog and its crime rate.
The ACLU of Mississippi and a coalition of other groups have lobbied against the bill.
National news outlets have taken interest, publishing images of Black Democratic legislators singing "We Shall Overcome." One Black legislator, Solomon Osborne, said during a House floor debate in February, "I don't even know why I'm down here, frankly, because it's like being at a Klan rally with people with suits on."
The debate over H.B. 1020 is unresolved.
The state House and state Senate have approved conflicting versions of the bill. The House version, the more drastic of the two, would create a new court system with two appointed judges to operate parallel to Jackson's existing circuit and chancery courts. The Senate version, which passed earlier this month, would add five temporary appointed judges to the existing circuit court to serve until 2026.
As debate continues, all four of the judges on the powerful Hinds County Circuit Court are pushing back.
On March 3, Senior Judge Winston Kidd issued a statement on behalf of the court's entire bench opposing the move to add appointed judges and calling instead for the Legislature to add two new elected judgeships to the court.
He argued that any system based on appointments would run afoul of a state constitutional provision requiring circuit and chancery court judges to be elected.
In an interview with Law360, Judge Kidd questioned why Jackson was being singled out for special treatment by the Legislature.
"I mean, that's not being done in any other district in this state, other than being proposed here in Hinds County," he said. "So you have to ask the question — why is Hinds being treated differently?"
The current fight over Jackson's court system began in January when Lamar proposed creating a new court system in Jackson with two new judges, plus new prosecutors and new public defenders.
The measure relies on a state constitutional provision that, separate and apart from the requirement that circuit and chancery court judges be elected, allows the state to create "inferior courts" that operate separately from the higher-level circuit and chancery courts.
Among the existing inferior courts in Mississippi are municipal courts that handle misdemeanors, ordinance violations and traffic tickets.
But critics argue that the courts envisioned under the bill, which would have jurisdiction over the mostly white neighborhoods around the capitol complex, would be inferior in name only.
The unelected judges in the new courts would be authorized to handle matters as serious as capital murder cases and could even sentence people to death, Lamar confirmed to Law360. They would also be given jurisdiction over civil disputes worth as much as $20 million.
The overlap of the inferior courts with the existing circuit and chancery courts has drawn opposition not only from the four Black Hinds County circuit judges, but also from the statewide conference of chancery court judges, which includes Black and white jurists.
After Jackson saw a record 155 homicides in 2021, the Mississippi Center for Investigative Reporting calculated the city had the highest per capita murder rate in the nation.
"If I've said this once, I feel like I said it 100 times, but, I mean, [this bill is] to help with the crime situation in Jackson, which is very real," Lamar said. "And the judicial backlog associated with the court system in Hinds County. That's really the main purpose — to help make Jackson a safer city."
Lamar doesn't live in Jackson — he's an attorney in Senatobia, a small town in north Mississippi closer to Memphis, Tennessee, than it is to his own state's capital.
Judge Kidd acknowledged Hinds County Circuit Court's heavy caseload. Each of the four judges has an average of about 500 open criminal cases, he said, all of them felonies. The judges also handle a large number of civil lawsuits, as the court assumes jurisdiction over every lawsuit filed against a state agency, from the University of Mississippi to the Department of Agriculture and Commerce.
Though the city's crime rate and the backlog in the courts are both real problems, local leaders in Jackson have complained that Republicans didn't consult them when drafting the court plan.
While Judge Kidd and other local leaders have said that adding new elected judgeships would be a more appropriate solution, Lamar implied in an interview with Law360 that there was no need to expand the existing court system's bench.
"You run into problems getting votes to do that across the state," he said. "A lot of people believe that four judges should be able to get the job done in Hinds County. And you know, there's a lot of factors that go into that as to why they're not."
Asked to clarify what specifically the judges in Hinds County were doing wrong, he declined to elaborate.
While Lamar's initial bill won approval in the House by a vote of 76-38 at the beginning of February, a state Senate committee went on to adopt a very different version of the measure at a meeting several weeks later.
This version tossed out the idea of creating a completely new court system, and called instead for the appointment of five new judges, plus three public defenders, two prosecutors, and support staff to the existing circuit court. These judges would be temporary, with commissions set to expire in December 2026. At that point, the Legislature would add one elected circuit court judge.
The state Senate passed the bill on a 34-15 vote on March 7.
As of Wednesday, a group of six legislators — five Republicans and one Democrat — had been named to a committee to reconcile the divergent House and Senate versions of H.B. 1020.
Appointed vs. Elected Judges
The situation raises a question: in what specific ways might the appointed judges act differently than the elected judges in Hinds County?
One person who's thought about the issue is Julian Miller, He's a Jackson-based attorney for the Southern Poverty Law Center and founding executive director of the Reuben V. Anderson Center for Justice, an organization working to address poverty and improve education.
He's also part of a coalition of organizations that are lobbying to kill H.B. 1020 and who are poised to bring litigation against it if it passes.
"I mean, that's kind of prognosticating, but I think that judges appointed by conservative white Supreme Court justices are more than likely to be conservative and white," he said.
While emphasizing he wasn't familiar with empirical studies on the issue, Miller expressed concern that in criminal cases, appointed judges might be more willing to impose harsh sentences.
In civil cases, meanwhile, he said that conservative white judges would likely tend to make more business-friendly decisions and be less likely to side with individual plaintiffs than more liberal Black judges.
Multiple academic studies have sought to determine how a judge's race, gender or other characteristics might impact their rulings. The results are mixed, according to a 2019 article in The Annual Review of Political Science that surveyed past research on the issue.
A 1988 paper found that while white state-level trial judges were more lenient with white defendants than with Black defendants, Black judges treated both equally.
On the other hand, a 1990 study found that both white and Black judges sentenced Black defendants more harshly, while another study in 2001 "found that Black judges were slightly more likely to sentence defendants to prison, regardless of the defendant's race," the 2019 article says.
Research on civil cases has shown a stronger correlation to the judge's race, especially when a case involves racial issues.
Researchers have concluded that Black federal judges were more likely than white judges to support non-white plaintiffs in Voting Rights Act cases, that they're more likely to rule in favor of affirmative action programs, and that they're more likely to side with Black workers in employment discrimination, racial harassment and civil rights employment claims, according to the 2019 article.
When State and Local Governments Clash
The situation also reflects broader issues across the country as state-level actors take more and more aggressive action to try to preempt local governments.
In some cases, it's a Democratic state official seeking to preempt a Republican-controlled local government — the state attorney general in New Mexico, for instance, is currently trying to stop conservative local governments from adopting their own abortion restrictions.
In many other cases, though, it's a Republican-majority state legislature seeking to dominate a liberal city with a large minority population.
Those conflicts can impact local laws on everything from minimum wages to the use of plastic bags —and they can also impact the justice system.
According to the Brennan Center for Justice at New York University School of Law, last year saw legislators in at least 25 states introduce at least 74 bills that the center said would have undermined the independence of state courts.
At least five such bills were signed into law. In Iowa, for instance, the Republican-controlled Legislature passed a bill allowing the governor to pick lower-level judges who hear cases involving juvenile matters, probate issues, small civil claims and low-level criminal matters. Previously, candidates for those positions had been put forward by county nominating commissions and then ultimately appointed by district judges, the center reported.
Other bills seek to curb liberal prosecutors. In Georgia, for instance, the Republican-controlled Legislature is pursuing a measure that would create a board that could oust locally elected prosecutors, a step that comes as the district attorney in the Atlanta area considers charges against former President Donald Trump and others related to the 2020 election.
Back in Mississippi, Judge Green believes that the fight over Jackson's judges will end up in court, and that the lawsuit may well become a bellwether for other places where state legislatures may try to target minority-controlled cities.
"We may be a test case for cities throughout the state of Mississippi, and states throughout the country," she said.
From a Slave Economy to Black Mayors
The intensity of the debate over H.B. 1020 reflects Mississippi's history of state government enforcement of white supremacy.
Before the Civil War, Mississippi's economy depended heavily on slave labor for the production of cotton. When Mississippi seceded in 1861, white leaders named the defense of slavery as the key reason, calling slavery "the greatest material interest of the world."
Though the Union victory in the war ended slavery, official state oppression of Black people in Mississippi through segregation and other means would persist.
As efforts to expand civil rights for Black people gained momentum in the 1950s, Mississippi's state government created a dedicated agency — the Mississippi Sovereignty Commission — to oppose the movement. Its methods went so far as to include gathering intelligence on thousands of people involved in the civil rights movement, and even the production of pro-segregation movies.
Despite its work, however, the agency, which was defunded in 1973 and formally disbanded in 1977, could not stop court-ordered school desegregation.
But as schools began to integrate, many white people abandoned Jackson.
Today, Jackson has a population of approximately 154,000 people, according to U.S. Census Bureau records, about 79% of whom are Black. Statewide, however, Black people represent a substantial minority — 38% – of Mississippi's 2.9 million total residents.
For years, Jackson has had Black mayors, and most of its other public officials, including its police chief and elected district attorney, are also Black, noted Matthew Steffey, a professor at Mississippi College School of Law in Jackson.
By contrast, the state Legislature that meets in Jackson is overwhelmingly white.
"And when I say white, 100% of Republicans in state government are white, all the representatives, all the senators, the governor, and so on," Steffey said. "Because they have the supermajority, they have no need to listen to what Democrats have to say. Which means they have no need to listen to what their Black colleagues have to say."
Steffey said people across the political spectrum know that Jackson needs help from state government to address problems ranging from a deeply dysfunctional water system to persistent violent crime.
But he said that Republicans were only willing to provide help "in a way that maintains the core political identity of the white Republicans in charge, which is [to say], 'We're not giving money or power to the Black elected officials in Jackson.'"
He sees H.B. 1020 as a way to put resources into Jackson while bypassing the local government and local voters.
"It feels almost imposed on the city, like a parent dealing with recalcitrant children," Steffey said.
For Judge Green, the retired Hinds County jurist, the situation is a reminder that the legacy of slavery and segregation still affects the present day.
"In Mississippi, we have a hard time learning from the mistakes we've made in history," she said. "We don't learn that Blacks and whites working together can make this state better and take it forward."
--Additional reporting by Madeline Lyskawa and Lynn LaRowe. Editing by Robert Rudinger.
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