A federal appeals judge in Texas is accused of saying minorities are more apt than other groups to commit crime and that complaints of racial bias in death sentencing are a "red herring."

Civil rights organizations filed a complaint against 5th Circuit Judge Edith Jones this week for remarks they say she made at a February speech to the Federalist Society at the University of Pennsylvania Law School about racial bias in death row sentencing.

The groups say the comments are prejudiced and call into question Jones' ability to be an impartial and fair judge.

Jones' law office in Houston said the judge declines to comment on the case.

According to several people present who signed affidavits for the complaint, Jones said:

“[S]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.” By way of example, she asserted as a “fact” that “a lot of Hispanic people [are] involved in drug trafficking,” which itself “involved a lot of violent crime.”

Jones, a Reagan appointee, also defended the use of the death penalty because “a killer is only likely to make peace with God and the victim’s family in that moment when the killer faces imminent execution, recognizing that he or she is about to face God’s judgment,” according to the complaint.

No transcript or recording exists of the speech, according to the Federalist Society.

The 5th Circuit's chief judge, Carl E. Stewart, will decide whether to dismiss or pursue the complaint, according to The New York Times.

The law school's Federalist Society says Jones' remarks are being misconstrued. "Rest assured the Federalist Society does not host or harbor racist speakers," Penn's Federalist Society posted in a brief statement on its Facebook page. "We're disappointed that constructive dialogue about federal habeas relief is being misrepresented like this." (Federal habeas relief refers to the appeals process for prisoners.) The group did not return a request for further comment.

The issue of racial bias in sentencing made headlines in Texas in 2000 when Texas' then-Attorney General John Cornyn identified five cases in which he thought the race of a defendant was used improperly in testimony. Jones joined her colleagues on the 5th Circuit in rejecting the stay execution request of one of these prisoners, Duane Buck, in 2011. Buck argued that his sentence should be thrown out since an expert witness psychologist, Walter Quijano, suggested during his trail that Buck's race could make him more likely to commit another crime in the future.

Jones, who was believed to be on President George H.W. Bush's short list for the Supreme Court, has been an outspoken critic of the Supreme Court and judges who do not adhere to a constructionist view of the law.

In 2001, she told University of Texas law students that people who suspect they are fired because of racial bias or their gender should "take a better second job instead of bringing suit" because they were almost always wrong about the cause of their firing.

Jones also criticized the Supreme Court for allowing pornography and for decriminalizing the use of profanity in public places in a 2005 interview with The American Enterprise.

“[S]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row

In 2001, she told University of Texas law students that people who suspect they are fired because of racial bias or their gender should "take a better second job instead of bringing suit" because they were almost always wrong about the cause of their firing.

 hotsauceman1 wrote:
Y'know, I think she is right *Ducks chair thrown at him*

 hotsauceman1 wrote:
I mean look at africa and mexico, those place are perfectly fine and not drowning in violence at all......

 Ahtman wrote:

 hotsauceman1 wrote:
Y'know, I think she is right *Ducks chair thrown at him*

We aren't throwing a chair at you, and you won't be able to duck it. Don't worry, it won't hurt, but it will stain.

 hotsauceman1 wrote:
I mean look at africa and mexico, those place are perfectly fine and not drowning in violence at all......

I'm not sure comparing an enormous continent with various nations, economies, and political realities with a singular country is really an apt comparison.


We can play the numbers game I suppose, the one where we ignore lots of other information and issues. There are more whites in prison then others (almost 60% of the total prison population) in the US, so apparently white people are more likely to be criminals then those of an ethnic minority. Americans also make up almost 74% of the prison population, so I'm not sure we can trust those shifty eyed criminals sorts.

 Frazzled wrote:
Statistics support her statements actually. On the flip side thats almost directly tied to poverty. If you're poor you're more likely to commit a crime or be the victim of a crime.

 Kovnik Obama wrote:
This. Saying that certain ethnic groups are more likely to commit crimes isn't being racist, it's being knowledgeable about the statistics on crime rates.

 Ouze wrote:


Are you sure the actual statistic isn't more that certain ethnic groups are more likely to be arrested, prosecuted, and convicted of crimes?

 Ouze wrote:
You know after reading about this on another site, I can't help but think maybe we should hold judgement on this until we see the whole speech. I can't help but remember the Shirley Sherrod incident.

 whembly wrote:
I thought it was put to bed already...

 Ahtman wrote:

 whembly wrote:
I thought it was put to bed already...

I would take that site about as seriously as dailykos.

 Frazzled wrote:
Statistics support her statements actually. On the flip side thats almost directly tied to poverty. If you're poor you're more likely to commit a crime or be the victim of a crime.

 whembly wrote:

 Ouze wrote:
You know after reading about this on another site, I can't help but think maybe we should hold judgement on this until we see the whole speech. I can't help but remember the Shirley Sherrod incident.

What was the Shirley Sherrod incident again? I thought it was put to bed already...

Anyhoo... I agree with you that we should wait till we see the whole speech.

 Ouze wrote:

 Kovnik Obama wrote:
This. Saying that certain ethnic groups are more likely to commit crimes isn't being racist, it's being knowledgeable about the statistics on crime rates.

Are you sure the actual statistic isn't more that certain ethnic groups are more likely to be arrested, prosecuted, and convicted of crimes?

Bullockist wrote:

 Frazzled wrote:
Statistics support her statements actually. On the flip side thats almost directly tied to poverty. If you're poor you're more likely to commit a crime or be the victim of a crime.

Frazzled is right *looks for the sky falling*. It isn't a case of ethnicity but economic and education levels.

Several organizations filed a Complaint of Judicial Misconduct against Fifth Circuit Judge Edith Jones earlier this week. The complaint charges Judge Jones with a variety of offenses, but the headline-getter is the claim that she made racist remarks during her speech on February 20, 2013, hosted by the University of Pennsylvania’s chapter of the Federalist Society.

With no transcript or recording of the event, the 12-page complaint relies on the affidavits of a few individuals who attended the speech, including Marc Bookman, the Director of the Atlantic Center for Capital Representation. Bookman’s affidavit serves as the primary account, with the other affiants agreeing and adding relatively few details. About a week before the Penn Fed Soc speech, Bookman published an essay in Mother Jones titled “How Crazy Is Too Crazy to Be Executed?”, about Texas murderer Andre Thomas. Whether Bookman intended ahead of time to use his account of the Fed Soc event as the basis of a misconduct complaint or not, he was likely expecting to be offended when he attended a Federalist Society speech called “Federal Death Penalty Review” by a pro-death-penalty, Texas-based judge. Just a guess….


Full disclosure before I go further: I interned with and clerked for Judge Jones. I didn’t attend the event in Philadelphia, and I haven’t spoken with her about this situation, but I don’t claim to be a fully impartial observer. I could be the first among many to attest to her dignity, intellect, and impeccable ethical standards. I could even tell you how generous with her time and supportive she’s been of my law school, a historically (and still predominantly) black institution.

But I don’t need to do that.

I don’t need to offer a character reference in order to rebut the accusations made in this complaint. I don’t even need to contest many of the facts that the complaint alleges.

While there’s not enough space here to evaluate each of the charges the complaint makes, let’s have a closer look at a few of them, starting with her alleged comments on race.

According to the complaint, Judge Jones asserted that “certain racial groups commit more of these crimes than others.” She said that “[s]adly some groups seem to commit more heinous crimes than others.” When asked to explain her remarks, she stated that there was “no arguing” that “Blacks and Hispanics” outnumber “Anglos” on death row and “sadly” it was a “statistical fact” that people “from these racial groups get involved in more violent crime.”

Note that she did not say that race causes criminality, only that we see a disproportionately high number of violent offenders of certain races. These are facts. Even without knowing her, you could easily conclude that Judge Jones thinks these are unpleasant facts. That would certainly explain her alleged repeated use of the word “sadly” in reference to these statistics about race and crime.

If Judge Jones had followed these facts with a different policy claim, would we consider factual statements to be proof of impartiality or impropriety? Or is it less that what she stated was false and more that it was simply not to some liberal audience members’ liking? One could cite these same facts, then proceed to argue for all manner of social reforms — ones that address the causes of the racial disparity in criminality. Doing so would be entirely compatible with what Judge Jones allegedly said during her speech.

What if Judge Jones had said that males were more likely to commit violent crimes than females? Would that be a problem? More violent offenders in our justice system are, in fact, male than female, after all. Would any reasonable person accuse Judge Jones — herself a non-male! — of undermining “public confidence in the judiciary” or being so gender-biased that she would be unfit to handle criminal cases? I hope not.

Correlation is not causation. Nothing in the complaint shows that Judge Jones suggested or thinks that race causes criminality.

The complaint further alleges that Judge Jones engaged in misconduct when she discussed capital defendants who raise claims of mental retardation.

The complaint’s footnote 10 states, “This term is outdated — now generally replaced by “Intellectually Disabled” — and thus Judge Jones’s use of the term “mental retardation” is kept in quotations.”

I work with clients (in a clinical setting, not a legal one) who suffer from severe cognitive impairments. In that setting, I wouldn’t describe a client as “mentally slowed,” because we’re after more precise diagnoses and because, yes, that catch-all term has fallen out of favor. But do you know who does routinely use the term “mentally slowed” in a professional setting? The United States Supreme Court — as quoted in the complaint’s footnote 11, for example. Using that term suggests a willingness to use a legal term of art, not necessarily some outmoded insensitivity to people, say, with Down’s Syndrome.

It is not disrespectful of individuals with disabilities to be angered by false claims of mental retardation, as Judge Jones allegedly was. It does not malign their dignity to suggest that many are capable of choosing between good and evil. Just because one thinks that a particular legal claim is frequently abused does not mean that every instance of such a claim is abusive or legally frivolous. We’re accusing one of the most respected judges of the federal judiciary of misconduct over something that even the Onion satirizes.

The complaint alleges that Judge Jones “indicated that any Mexican National would rather be on death row in the United States than in a Mexican prison” and “stated that Mexico ‘wasn’t about to provide any of their own citizens with the kind of legal protections the person would get in the United States.”

The complaint does not even bother to contest this joke, since it’s (a) a joke, and (b) uncontestable. Even the U.S. consulate helpfully reminds U.S. tourists to Mexico that they won’t benefit from little perks of the American justice system such as the presumption of innocence.

Next, the complaint cites Judge Jones’s discussion of individual capital cases as evidence of her alleged misconduct. It states:

“It was clear that Judge Jones was disgusted by the gruesomeness of these killings [ . . . ] Judge Jones made clear her personal belief in the heinousness of the crimes committed and how, in her personal view, that justified imposition of a death sentence.”

The heinousness of crimes is, in part, how we as a society justify capital punishment. We don’t seek or impose the death penalty for most offenses, even most homicides. As I wrote about in my column last week, I am no fan of our capital punishment system. Even so, I understand that, if we are to execute people at all, we aim to execute the offenders who commit the worst crimes.

What is it we expect judges to talk about when we invite them to speak, if not some “view from the bench”? We expect them to draw on their actual experiences with actual cases. That is, frankly, why most judges are more interesting to listen to than most law professors.

We rightly expect that judges will not publicly comment on cases currently pending before them. To be clear: no affiant claimed that Judge Jones did so. Once again, even if we take their account of what she said as true, it just doesn’t add up to anything worthy of censure.

If there’s one woman on the planet who doesn’t need a pipsqueak like me defending her, that woman is likely Edith H. Jones. She likely will not dignify these charges with any response. I, however, am not so constrained by that sort of dignity. Obviously.