Tag Archives: The New Jim Crow

What Happened to Jarvious Cotton After He Was Convicted of Murder

After his conviction, Cotton became a jail house lawyer. He sued Mississippi prison officials asking for money to compensate him for having to prove his legal mail did not contain drugs. (Cotton v. Taylor (5th Cir. 1994) 37 F.3d 632.) This request was denied. (Ibid.) A few years later, he brought suit complaining that he wasn’t allowed to request a change in his prison job assignment. (Cotton v. Hargett (5th Cir. 1995) 68 F.3d 465.) The court described this claim as “frivolous” and warned Cotton not to file more appeals like it. (Id. at p. *1) Cotton continued to sue, and actually won $2,000 after complaining about a leaky prison roof. (Cotton v. Taylor (N.D. Miss. 1997) 1997 WL 560875.) Prison officials, however, appealed,

Cotton brought another case, but the grounds for his complaint are not clear. The new case went to the Fifth Circuit in 1998. They decided they had enough of Cotton’s lawsuits, which they described again as frivolous. (Cotton v. Fordice (5th Cir. 1998) 136 F.3d 1329, *1 [“Cotton has had three dismissals as frivolous by the district court and/or this court.”] They barred him from filing further appeals except in rare circumstances. (Ibid.) Cotton asked the Supreme Court of the United States to take his case. They declined. (Cotton v. Fordice (1998) 119 S.Ct. 214.)

The Voting Rights Case

Cotton’s next lawsuit was a big one. He filed a civil rights action asserting that Mississippi unconstitutionally disenfranchised him. He brought the suit with another man, Keith Brown, who was in prison for an armed robbery. Michelle Alexander is a civil rights attorney; this may be how Cotton came to Alexander’s attention.

The case was not argued by a lawyer. Brown argued it himself. The trial court ruled that the complaint was so lacking in merit that it would be a waste of a jury’s time to hear. In other words, no reasonable jury could find for Cotton and Brown. The court dismissed the case. Cotton and Brown appealed. (Cotton v. Fordice (1998) 157 F.3d 388.) Cotton’s appeal was dismissed as frivolous, since the court had already warned him not to file further lawsuits like this. (Id. at fn. 1.)

Brown made an interesting claim, one that’s relevant to Alexander’s arguments. Her core claim, after all, is that felon disenfranchisement was done to create a “new Jim Crow”; an underclass of convicted black men without voting rights. Brown makes the same argument in his appeal. He says that Mississippi’s felon disenfranchisement law “was originally drafted with the intent to disenfranchise blacks.” (Cotton v. Fordice (1998) 157 F.3d at 392.) Mississippi conceded that the law “was enacted in an area when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were committed primarily by blacks. (Id.) Interestingly, the Mississippi Supreme Court itself held that the disenfranchisement law discriminated against blacks. (Ratliff v. Beale (1896) 74 Miss. 247 [the law “swept the circle of expedients to obstruct the exercise of the franchise by the negro race.”].) It took the Mississippi courts six years to recognize the law’s “odious origin.” (Fordice, supra, 157 F.3d. at p. 391.)

If the 1890 law were applied to disenfranchise Brown, I think we can all agree that the law should be struck down. Indeed, it was a shameful blot on Mississippi when it was passed, and it is still a shameful memory. But the Fifth Circuit considered the fact that the law was overhauled in 1950.

Section 241, as enacted in 1890, was amended in 1950, removing “burglary” from the list of disenfranchising crimes. Then, in 1968, the state broadened the provision by adding “murder” and “rape”—crimes historically excluded from the list because they were not considered “black” crimes. Amending § 241 was a deliberative process. Both houses of the state legislature had to approve the amendment by a two-thirds vote. The Mississippi Secretary of State was then required to publish a full-text version of § 241, as revised, at least two weeks before the popular election.  Finally, a majority of the voters had to approve the entire provision, including the revision. Because Mississippi’s procedure resulted both in 1950 and in 1968 in a re-enactment of § 241, each amendment superseded the previous provision and removed the discriminatory taint associated with the original version.

(Fordice, supra, 157 F.3d at p. 391 [internal citations omitted].)

Although Brown had proved that the 1890 law discriminated in an unconstitutional way, he did not prove that the current law was unconstitutional. (Id. at p. 392.) Moreover, he did not even offer evidence that the current law discriminates against blacks. (Id. at fn. 9.) The Fifth Circuit then affirmed the dismissal of the case.

Cotton Keeps Suing

The same year that the Fifth Circuit decided against him, Cotton sued again. He claimed that he was denied parole based on his race. The trial court rejected this claim without even discussing it. (Cotton v. Booker (5th Cir. 1998) 166F.3d 341, *1.) The Fifth Circuit remanded the case to them to provide a justification. (Ibid.) It is unclear what happened on the second go-round in the trial court.

Cotton Gets Out

Jarvious Cotton served his time for murder and was released on parole to Adams County Mississippi.  

Michelle Alexander’s Thesis

On page 4 of The New Jim Crow, Michelle Alexander argues that “mass incarceration in the United States had, in fact, emerged as a stunningly comprehensive and well-disguised system of racialized social control that functions in a manner strikingly similar to Jim Crow.”  She “argues that mass incarceration is, metaphorically, the New Jim Crow.”  (Id. at p. 11.)  She describes “mass incarceration as a ‘racial caste system'” consisting of “the larger web of laws, rules, policies, and customs that control those labeled criminals both in and out of prison.”  (Id. at p. 12-13.) Here’s the way people took it:

Jarvious Cotton is a Murderer

“Today, Jarvious Cotton cannot vote because he, like so many black men in the United States, has been labeled a felon and is currently on parole.”  (Michelle Alexander, The New Jim Crow (2010) at p. 1.)  That is a frustrating and misleading way to start a frustrating and misleading book.  And the worst part isn’t the unnecessary use of the passive voice (Cotton “has been labeled”), and it isn’t the fact that a parolee was denied voting rights.  I hadn’t even thought about the latter much, before picking up this book.  No, it’s Alexander’s characterization of Cotton as having lost his voting rights when someone “labeled” him a felon.

Cotton was not labeled a felon by the establishment, “The Man,” a racist cop, or some other bogeyman.  He committed a felony.  No one did anything to him.  He did it to himself.  He broke the rules and got caught.  Alexander tries to take the focus off Cotton, as if losing his voting rights happened to him in the same way that you happen to get rained on, or in the same way that you happen to catch a cold.  That is just not the case, and it’s a dishonest way to start your book.

What Jarvious Cotton Did to Lose His Voting Rights.  

On March 12, 1982, Robert Irby was with some friends outside the city auditorium in Natchez, Mississippi.  Irby was a popular 17-year-old student football star and the son of a prominent banker.  The Natchez Pilgrimage tableaux was being held.  Irby and his friends were approached by Jarvious Cotton and Terry Johnson.  The two men were friends. “When we was hanging together,” Johnson said, “I put my education with his street knowledge.” Johnson was 15 at the time. He said he was high on marijuana and codeine.

Cotton and Johnson brandished a gun and demanded money.  The men got about $21 from Irby and his friends, and turned to run away.  Irby ran after them.  Cotton turned around and shot Irby dead. According to Johnson, Cotton fired three times. The first two shots hit Irby in the legs. The fatal shot hit Irby below the ear. Cotton said, “He wants to be a hero. There’s another dead soldier.”

Cotton and Johnson fled to a car. The getaway driver was a third man, Anthony Gerald Jackson, who drove them out of state to Louisiana.

Jarvious Cotton’s mother Audrey had ten children. Jarvious was the fourth. He used to run away constantly between the ages of 7-12. He had his first brush with the law at age 17, when he was convicted of burglary. After Cotton killed Irby, he was later caught and held awaiting trial at the Adams County Correctional Center, which is now a private prison.  His mother helped him escape from his cell. He fled Mississippi, but she remained and was later convicted herself, as an accessory to his crime.

He remained a fugitive for five years until he was apprehended almost by accident in New York.  Specifically, he was arrested for marijuana possession¹ in a New York subway.  Officers discovered that he was wanted for murder in Mississippi.

Once Jarvious Cotton was identified as a wanted murderer, Mississippi began proceedings to extradite him.  It may surprise you to learn that the Legal Aid Society of Brooklyn fought on behalf of Cotton to prevent his extradition.  They fought extradition for almost a year before the New York Court of Appeals unanimously held that Cotton must be returned to Mississippi.  Some sources say he was convicted of murder by a jury of his peers. Others say he pled guilty in exchange for a life sentence with the possibility of parole.

Alexander Used Jarvious Cotton to Mislead You.

Cotton lost his right to vote because he killed a teenager.  He did not lose his right to vote because the system “labeled” him a felon.  The New Yorker has the same problem with Alexander’s opening.  The Boston Review sums up my feelings nicely.

“Alexander’s passive construction—Cotton “has been labeled a felon”—suggests that he had no choice in the matter. The compelling arguments against felon disenfranchisement would lose none of their force if Alexander were to acknowledge Cotton’s crime, but she never does.”

Alexander’s language has actually misled people.  Even though we know Cotton was convicted of murder, college students who read this book do not.  For example, students at Cal. State Long Beach were asked to read the introduction and write about it on a message board.  One of them said, “Lastly is Jarvious who is also denied the right to vote because he is on parole for being charged with a drug conviction.”  Nope, he killed a teenager.

If an author cannot be trusted in small things, she probably cannot be trusted in large things either.  If Alexander was willing to try to pass of Cotton as a victim of the system rather than a the worst kind of criminal, what other things is she trying to pass off?  Alexander is a loud voice for sentencing reform.  She should not discredit the arguments of the movement by deceiving her audience about the facts.

Notes and Annotations

Why can’t felons vote? There are good reasons for this rule. In a nutshell, if you aren’t willing to follow the law, you shouldn’t get to make the law for everyone else.

Cotton will vote when he’s off parole: Jarvious Cotton served his time for murder and was released on parole to Adams County Mississippi.  Mississippi denies voting rights to parolees.  But Cotton will regain his voting rights once he completes his term of parole.

California has the same rule as Mississippi: a felon is stripped of his right to vote while she is incarcerated and on parole.  But when the term of parole is complete, her voting rights are returned. People incarcerated in county jail, which includes felons, can vote.

Here’s a newspaper article discussing the case.

Here’s a thoughtful perspective on Alexander’s use of Jarvious Cotton in her argument that the criminal justice system has created a racial case.  Jarvious Cotton chose to commit a crime, whereas slaves and southern blacks during Jim Crow did not choose to be victimized and oppressed.

You can read court opinions about Cotton’s extradition that include the facts of his case. (See People ex rel. Neufeld on Behalf of Cotton v. Commissioner of New York City Dept. of Correction (1988) 71 N.Y. 2d 881 [describing Cotton as an accessory].)

After his conviction, Cotton became a jailhouse lawyer. He sued Mississippi prison officials asking for money to compensate him for having to prove his legal mail did not contain drugs. He sued over a leaky roof, and over the decision to deny him parole. He brought so many bogus suits that the Fifth Circuit barred him from filing more. You can read a detailed account of his life after conviction here.

¹To me, the fact that Cotton was apprehended for possession of marijuana is the most ironic part of his story.  Alexander argues that enforcement of drug laws should be ended, because they are used to create a new racial caste system.  Jarvious Cotton shows that real life does not fit this argument.  Or we can go farther; Alexander’s own examples don’t fit this argument.  Because in Jarvious Cotton’s case, enforcement of a minor drug law led to the apprehension of a murderer.  We could speculate that since Cotton was apprehended on the subway, that he may have been arrested as part of “stop and frisk” enforcement, or broken windows policing.  In other words, the enforcement practices that Alexander criticizes successfully identified and arrested a murderer, an extremely positive result.  And she still turned around and used Cotton as an example in her book, secure in the knowledge that only a tiny number of people would ever care enough to dig deeper.