Category Archives: Department of Justice

“Deliberate Indifference” to Prison Sex Abuse Sets Stage for 8th Amendment Challenge

“Deliberate indifference” to prison sex abuse sets stage for 8th Amendment challenge

by Tiffany Ray

If it’s true that the measure of civilization in a society can be judged by entering its prisons,[1] then Alabama is a barbaric place. The proliferation of sexual misconduct, coercion, vulgarity and mistreatment that constitutes life at the Julia Tutwiler Prison for Women in Wetumpka, Ala., is by now well known: A 36-page report by the U.S. Department of Justice, released early this year and widely reported in the press, documents a 20-year history of “unabated staff-on-prisoner sexual abuse and harassment” that has left the women incarcerated there to “universally fear for their safety.”[2]

In its report, which is the result of an extensive investigation, the DOJ asserts that, for nearly two decades, guards at Tutwiler have raped and sodomized inmates and coerced them into performing oral sex.[3] They have forced them to submit to sexual abuse in order to receive basic necessities such as tampons or laundry service.[4] They have watched the women as they take off their clothes, shower, and use the toilet, and they have subjected them to sexually explicit verbal abuse.[5] Allegations of such abuse are investigated superficially, if at all, and women who have reported such allegations have been subjected to further abuse by guards, to segregation, or to lie detector tests.[6]

The DOJ asserts that the state has violated (and presumably continues to violate) the Eighth Amendment rights of Tutwiler prisoners by “failing to protect [them] from harm due to sexual abuse and harassment from correctional staff.”[7] The Eighth Amendment provides board protection to prisoners from “cruel and unusual punishment” by government, but what are the contours of that right?

The Supreme Court has found that the test for what constitutes a cruel and unusual condition is not static, but rather drawn “from the evolving standards of decency that mark the progress of a maturing society.”[8] Surely what is happening at Tutwiler Prison is indecent by any standard. According to the Court, the conditions “must not involve the wanton and unnecessary infliction of pain, nor . . . be grossly disproportionate to the severity of the crime warranting imprisonment.”[9] The Constitution “’does not mandate comfortable prisons,’ (citation omitted), but neither does it permit inhumane ones.”[10] Conditions may be “restrictive” or even “harsh” and still be Constitutional.[11]  However, “a prison official’s ‘deliberate indifference’ to a substantial risk of serious harm to an inmate violates the Eighth Amendment.”[12]

In Farmer v. Brennan, one of three cases cited by the DOJ to support its assertion of a constitutional violation, the Supreme Court determined that deliberate indifference is shown when an official was “subjectively aware of the risk.”[13] In that case, a transsexual prisoner who was biologically male and projected feminine characteristics was raped and beaten after being placed in the general male population of a high-security prison.[14] Vacating and remanding a lower-court ruling for defendants in the case, the Court found that a prison official could be held liable for denying a prisoner humane confinement conditions if the official “knows that inmates face a substantial risk of serious harm and disregard that risk by failing to take reasonable measures to abate it.”[15]

The Court determined that deliberate indifference of prison officials equated to the subjective recklessness requirement of criminal law; something more than negligence but less than “acts or omissions for the very purpose of causing harm or with knowledge that harm will result.”[16] The Court said prison officials need not be aware of a specific risk from a specific source: “. . . [I]t does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk.”[17]

In Farmer, the Court said the Eighth Amendment both constrains the actions of prison officials – preventing them, for example, from using excessive force against a prisoner – and also imposes duties on them to provide “humane conditions of confinement.”[18] Specifically, officials must “ensure that inmates receive adequate food, clothing, shelter, and medical care, and must take ‘reasonable measures to guarantee the safety of the inmates.’”[19] In Helling v. McKinney, the Court found that deliberate indifference to conditions that pose a serious risk to future health violates Eighth Amendment standards, even when no harm has yet occurred.[20] Prisoners have found relief from the courts from exposed electrical wiring, exposure to contagious diseases from other inmates, and, in Helling, from constant exposure to secondhand smoke.[21]

From such a footing, it does not seem far to go to determine that inmates deserve relief from the “universal fear” of sexual abuse and retaliation by their jailers. No one should live day to day with the fear that they might be the next target for abuse, and particularly in a place that is designed to provide them no means of escape. Just the threat of such abuse is corrosive and debilitating, particularly for the women at Tutwiler who, the DOJ says, are already more vulnerable because they are more likely to have been a victim of abuse prior to incarceration.[22] Surely the state has a duty to protect inmates from such treatment.

Moreover, it appears from the DOJ report that state officials have had notice of sex-abuse problems at Tutwiler since at least 1995, when the agency reported it as part of an investigation into the prison’s treatment of mental health issues.[23] More recent evidence was available as well: A 2007 DOJ report of sexual assault in prisons found that Tutwiler was among the worst offenders, ranking 11th out of 146 prison facilities for reports of sexual assault.[24] A report by the Montgomery-based Equal Justice Initiative in 2012 found that conditions had not improved since 2007 and that “pervasive sexual misconduct” continued.[25] It seems clear that the state knew women at Tutwiler were being sexually abused and yet failed to act to prevent it.

News of poor prison conditions in Alabama is hardly a shock, but the level of depravity and disregard apparently at work at Tutwiler is particularly galling. State officials have attempted to defend the indefensible; Kim Thomas, Commissioner of the Alabama Department of Corrections, for example, has said the DOJ’s findings were “off-base,” and prison conditions were not unconstitutional, though he declined to talk in specifics.[26]  Thomas said the department had requested an independent examination by the National Institute of Corrections, part of the DOJ, in 2012 following the Equal Justice Initiative reports of sexual abuse at Tutwiler and has been working to implement changes since then.[27] Among the improvements cited by officials are efforts to recruit more female prison staff at Tutwiler and train prison staff on proper management of female inmates, and plans to install security cameras.[28]

The fact that such improvements are not already an integral part of Tutwiler management would suggest a level of long-term apathy that casts doubt on the ability of state officials to take meaningful action now. Clearly, the state has been on notice for a long time that rights violations were occurring – or at the very least, were likely occurring – at Tutwiler. And yet the “proactive” steps cited by officials to curb such abuses began only a couple of years ago, and have apparently gotten nowhere. Meanwhile, Alabama prisons have been perennially underfunded, and there is no political gain for legislators in advocating an appropriation of additional resources for the benefit of convicted criminals. Thus, there is little hope of any drastic commitment by the Legislature to push through needed reforms.

Fortunately for the inmates of Julia Tutwiler Prison, the DOJ investigation appears far from over. The pervasiveness of sex-abuse allegations has led the DOJ to expand its examination to other, related areas: excessive use of force, constitutionally inadequate conditions of confinement, constitutionally inadequate medical and mental health care, and discriminatory treatment based on national origin, sexual orientation, and gender identity.[29] The DOJ report also included a litany of reforms the agency says must be implemented to curb sexual misconduct by prison staff, as well as the threat of a legal action brought by the Attorney General if they are not.[30]


[1] This statement is often attributed to Fyodor Dostoyevsky. See, e.g., Fyodor Dostoyevsky quotes, www.ThinkExist.com, available at http://thinkexist.com/quotation/the_degree_of_civilization_in_a_society_can_be/166419.html.

[2] Letter from Jocelyn Samuels, Acting Assistant Attorney General, U.S. Department of Justice, Civil Rights Division, to Hon. Robert Bentley, Governor of Alabama (Jan. 17, 2014), http://media.al.com/opinion/other/2014%201%2017%20Tutwiler%20Findings%20Letter%20%282%29.pdf.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8] Rhodes v. Chapman, 452 U.S. 337, 346 (1981).

[9]  Id. at 347.

[10] Farmer v. Brennan, 511 U.S. 825, 832 (1994).

[11] Rhodes, 452 U.S. at 347.

[12] Farmer, 511 U.S. at 829.

[13] Id. at 828-29.

[14] Id. at 829-30.

[15] Id. at 848.

[16] Id. at 835.

[17] Id. at 843 (quoting Helling v. McKinney, 509 U.S. 25 (1993)).

[18] Id. at 832.

[19] Id.

[20] 509 U.S. 25, 33 (1993).

[21] Id. at 34.

[22] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[23] Id.

[24] Id.

[25] Id.

[26] Mike Cason, Department of Justice finds conditions at Julia Tutwiler Prison to be unconstitutional, al.com, Jan. 17, 2014, http://blog.al.com/wire/2014/01/department_of_justice_finds_un.html.

[27] Id.

[28] Id.

[29] See Letter from Jocelyn Samuels to Hon. Robert Bentley, supra note 2.

[30] Id.

Trayvon Martin and Southern Justice

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Casey Bonner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

It is August 1955 in Money, Mississippi. A pre-teen boy from Chicago, Illinois is spending part of his summer vacation visiting some relatives in the Delta, and the boys are currently hanging out in a small, local grocery store. An attractive woman walks in, and the boys’ attention is instantly drawn to her.  The Yankee, a visitor to the South, doesn’t know the old customs of the state. He whistles at the beautiful woman. The grocery store briefly falls silent before the boys are thrown out in an uproar. The visitor has made a grievous mistake: the woman at whom he had whistled is the grocery store owner’s wife. She is also white.

Several days later, the visitor goes missing. Rumors start to circulate; word starts flying around that the grocery store owner, Roy Bryant, and two other men have kidnapped the visitor. The sheriff quickly makes an arrest and charges the three men with kidnapping. Three days after the visitor is abducted, two boys fishing in the Tallahatchie River find his body. His body is beaten, bloody, and bruised. His captors had tied his body to a heavy fan blade with barbed wire tied around the neck. His eye is dislodged, and he has a gunshot wound slightly above his ear. The young male visitor, Emmett Till, had been killed for one reason and one reason only: He was Black.[1]

Flash forward to February 2012 in Sanford, Florida. A high school senior is walking home from a nearby grocery store after buying Skittles and some iced tea. He’s crossing through a neighborhood being watched by the Neighborhood Watch Captain, George Zimmerman. Zimmerman notices the young man walking through the neighborhood, and calls and reports the young man’s presence as “suspicious.” The police urge Zimmerman not to pursue the young man, but Zimmerman does not heed their order. What exactly happened next is still unknown, but the end result is clear: 17-year-old Trayvon Martin is dead, shot by George Zimmerman.[2]

Since Trayvon’s death, facts have emerged and allegations have been made that have led some to call Trayvon a “modern-day Emmitt Till.”[3] The 911 call from Zimmerman to Sanford police reveals that Zimmerman told police a Black male, wearing a hoodie, was walking through the neighborhood, which Zimmerman felt was suspicious. Zimmerman told 911 dispatchers that he was following the young man, which they instructed him not to do.  Zimmerman’s own statement to 911 dispatchers contradicts what he told police after they arrived on the scene of the crime – that Trayvon had attacked him, and he had shot Trayvon out of self-defense.[4] When police arrived, Trayvon was unarmed and carrying only his cell phone, a bag of Skittles, and an iced tea. Police did not arrest Zimmerman, nor did they perform any tests to determine whether Zimmerman was intoxicated. Sanford Police Chief Bill Lee stepped down from his duties after the city council passed a no-confidence vote in Lee. The 911 call reveals Trayvon was screaming for help before he was killed.[5]

 Amid calls for justice from not just Trayvon’s parents, but to the President to everyday citizens, the tragedy continues. Trayvon’s girlfriend was on the phone with him when the scuffle began, and she heard someone accost Trayvon shortly before the line went dead. Facts continue to emerge that indicate Zimmerman’s actions against Trayvon were racially motivated. Most recently, reports have emerged that Zimmerman used a racial slur while following Trayvon, which was recorded on the 911 call.[6] On March 23rd, students in Florida high schools participated in a walk out in protest of the lack of arrest in Trayvon’s killing.[7] That same day, President Obama stated at a press conference, “[W]e will get to the bottom of exactly what happened.[8] Trayvon’s parents have attended rallies in honor of their son’s life and have publicly called for justice.[9] Although Zimmerman remains free, his actions will be reviewed by a grand jury, and the FBI and Justice Department have opened their own investigations into the case.[10] Unfortunately, justice may not be served so easily.

 The issue: Florida is among twenty-one states that have a “Stand Your Ground” law that allows people to use deadly force when engaged in a fight.[11] The law reads as follows:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Thus, in order to have a successful claim, Zimmerman would only need to prove that he had a right to be where he was at the time and that he believed it was necessary for his to shoot Trayvon in order to protect himself from harm or death. The only real question left is whether Zimmerman had cause to believe Trayvon was going to harm him. Seeing as Trayvon was found holding only a bag of Skittles and an iced tea, Zimmerman will have a difficult time showing he was reasonably fearful of “great bodily harm” or death. When the grand jury reviews the evidence – Zimmerman’s statements, the 911 call, Trayvon’s girlfriend’s testimony about their phone call, and the situation as a whole – they will be able to start the steps of bringing Zimmerman to justice.

Even though the process of determining what really happened that night has finally begun, scrutiny of the police department’s handling of the case is opening them up to harsh criticism. Under the law, police are allowed to determine at the scene of the homicide whether they believe the self-defense claim, which is precisely what the police did in the Martin case. However, can they really be faulted for following the law? An at-the-scene determination of Zimmerman’s truthfulness could easily be believed: he had a bloody nose, scratches on his skin, and grass stains on his shirt, all signs of an apparent scuffle.[12] The police were not obligated to take Zimmerman in for further questioning, nor were they obligated to perform any sort of test to determine whether Zimmerman was intoxicated. Yet some have claimed the police did not do enough; they claim if the situation were reversed and Trayvon had been the one claiming self-defense, there would have been an arrest immediately. Whether that is true we do not know for it is only speculative, unfortunately, statistics suggest that statement may have some truth to it.

 Statistics indicate that prosecutors are three times more likely to seek the death penalty when the perpetrator is Black and the victim is White.  Studies have also shown that prosecutors are less likely to seek the death penalty when the victim is Black, regardless of the perpetrator’s race.[13] Aside from the eventual sentence, Black defendants are incarcerated 5.6 times more than White defendants.[14] Even more shocking, White defendants receive sentences ten percent shorter than those received by Black defendants, even when charged with the same offense.[15] Thirty-two percent of Black men will be incarcerated at some point in their lives, while only six percent of White men will suffer the same fate. For drug offenses specifically, African-Americans are thirty-seven percent of those arrested, although they are only thirteen percent of the United States population as a whole.

Though it clearly shouldn’t, race quite obviously plays a factor in criminal charges and criminal sentencing. It mattered in 1955 with Emmett Till: though Till’s captors were caught and charged, an all-white jury acquitted the defendants in a little over an hour. One juror commented, “If we hadn’t stopped to drink pop, it wouldn’t have taken that long.[16] Some jurors admitted they believed the defendants were guilty, but they did not think the death penalty was appropriate for White men who had killed a Black man.

We as a society have progressed since 1955. We cannot allow people like George Zimmerman to stem that progress. We cannot allow Trayvon’s memory to fade. We cannot allow Trayvon to become a modern-day Emmett Till. We cannot allow justice to pass us by. We must continue to push for change at every chance we are given. We must continue to change the way we see each other and the way we view justice.  We must continue to seek justice for Trayvon — for justice is the reason we study law.


[16]http://en.wikipedia.org/wiki/Emmitt_till#cite_note-75

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Who Should Pay? American Birth Control and The First Amendment

Jared Miller

Jared Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

“I almost threw up,” was a remark by current presidential candidate Rick Santorum given in response to a speech by John Fitzgerald Kennedy, the 35th President of the United States. On September 12, 1960, Kennedy’s speech outlined his opinion on the distinct roles that the church and state should play in America. Kennedy’s speech came in response to skepticism and disdain projected at him because of his Catholic faith. Public counter arguments undermining previous President’s views by presidential hopefuls and political ideologists are not uncommon. It is common for these opposing statements to be made for political gain, political distancing, or simply because of honest disagreements. This is especially true when a political stand has been taken or when a new piece of legislation is proposed. A debate has been ignited and statements such as Santorum’s have been prevalent due to President Obama’s recent birth control policy.

The new policy, which was adopted earlier this month as part of Obama’s health reform law, the Patient Protection and Affordable Care Act of 2010, requires most employers to provide health insurance coverage for women’s contraceptives free of charge. This birth control aspect of the law caused an immediate and swift backlash, especially from a great deal of Catholics. A large percentage of Catholics do not believe in women’s contraception at all and feel the law unjustifiably and unconstitutionally forces their hand.  Many Catholics, especially company owners and others in positions of power, find a problem with the law in that it essentially forces them to insure employees with respect to something they do not personally believe in. Even Vice President Biden, a Catholic, was vocal about the controversy and said the presidential administration needed to reassess this component of the reform law “to make sure that we do not force the Catholic Church to do something that they fundamentally think is inconsistent with their religious beliefs (sic).”

Obama made a “compromise” after national pressure from the Catholic Church and a subsequent reassessment of the reform law. In specific situations the compromise requires the insurance companies to cover the cost of birth control coverage for employees, hence eliminating the employer’s obligation.  The compromise is applicable to religiously affiliated institutions, including “Catholic-run hospitals and universities that oppose artificial contraception.”  The compromise made it so the law does not apply to places of worship, including, churches, synagogues and mosques. The compromise did a service to Obama’s administration by appeasing a faction of the Catholic community and allowed the administration to make strides toward weathering the controversy.

However, the contrasting sides of the argument are stark and the debate with respect to the legality of this birth control policy continues. Naturally, litigation is expected to occur when religious beliefs, new legislation and the rights of a constituency are at stake. Subsequently seven states, two private citizens, two religious nonprofit organizations, and a Catholic school have all joined in on a lawsuit against Obama’s policy. The lawsuit asks a federal judge to rule the law unconstitutional and enjoin the government from enforcing the requirement.

Nevertheless, many Catholic leaders, evangelical groups, Republicans, social conservatives and even a minority of Democrats have rejected this compromise. They argue that this law still “violates religious freedom under the U.S. Constitution and would cause economic hardship for self-insured institutions.” Archbishop Thomas Wenski, who heads the Catholic archdiocese of Miami, says this was a unilateral decision made by Obama administration and the compromise was no more than a “smoke screen” to calm down the controversy. He argues that his problem with the birth control policy is that it forces employees of Catholic charities, hospitals and universities to receive birth control coverage, hence affecting one’s “religious freedom.” When pressed about the idea of shifting the burden to the insurance companies, Wenski acknowledges it, but does not feel it solves the religious liberty problems or is a compromise at all. He points out that self-insured dioceses and charities having to cover their employees would be violating their religious principles. Essentially, Wenski questions the policy considerations when an insurance company is not the insurer.

The question then becomes who is responsible. Wenski and other Catholic Church leaders with similar views believe the employers will eventually be held responsible to cover this gray area in the birth control policy. Additionally, some states and religious groups that are not covered under the religious compromise are suing because they say the policy violates their freedom of conscience and the Religious Freedom Restoration Act (RFRA) of 1993. John Witte, Jonas Robitscher Professor of Law at Emory University, says RFRA requires the federal government to show it has a compelling state interest if it violates the religious freedom of a person or group, and it must show that it used the least restrictive alternative for achieving that state interest. He also says “those two hurdles of the RFRA, I think, would be very hard for this new mandate to pass, when an individual or group brings claim.” Many members of Congress seem to agree.

Senate Republicans recently proposed legislation that would allow employers and insurance companies to opt out of portions of the reform law in which they found morally objectionable. Members of Congress argued the birth control requirement under the reform law violates the First Amendment’s guarantee of religious freedom by “forcing insurers and employers to pay for contraception for workers even if the employers’ faith forbids its use.” The measure was narrowly defeated by Senate Democrats.

Senator Barbara Boxer (D-California) was vocal in her opposition to this Republican-led legislation. Her rationale? The proposal gave insurance companies too much discretion in their dealings with employees and this insurance company opt-out clause could potentially be dangerous. She said Congress has “never had a conscience clause for insurance companies” because the majority of them do not “have any consciences.” She went on to say that this would give insurance companies yet another method to deny coverage for medical treatment, virtually undermining the objectives of the reform law.

It is not uncommon for a policy such as this one to cause disagreements about its constitutionality, however, other factors from a public relations standpoint has contributed to heightening the debate.

Aside from the substantive law, many in the public, church and in governmental capacities do not agree with how the decision to move forward with the policy was handled. Wenski pinpoints the lack of collaboration on the act as one of his biggest contentions. He states, “The White House didn’t consult the bishops.” The U.S. Conference of Catholic Bishops President, Timothy Dolan of New York, expressed his view on the necessity of an open dialogue between the Obama administration and his faction of the Catholic Church, calling the proposed birth control compromise unacceptable. Dolan feels that an acceptable solution can be made if everyone has a seat at the table.

However, the public feelings towards the law are telling a different story despite church leaders’ calls for increased collaboration and the unfavorable characterization it has received from a legal and ethical standpoint. Polling has indicated that the majority of the public favor requiring birth control coverage for employees of religiously affiliated employers. Joint polling by CBS News and The New York Times from February 8th-13th found that 61% support Obama’s birth control policy, while 31% oppose it. Additionally, Thomson-Reuters News has reported that polling of 1,500 adults found that 63% of Americans overall supported the policy, according to the data. It also has to be encouraging to the Obama administration that polling has found that Catholics support the requirement at a similar rate as all Americans. Even the initial compromise of allowing religious institutions to opt out of the birth control policy was met with praise from a faction of Catholics.

The compromise instantly garnered praise and excitement towards the Obama administration from the Catholic Health Association, a substantial association that oversees some 600 Catholic hospitals. The head of this association, Carol Keehan, said that the administration “listened to us and they heard the things that we were most concerned about, and we’re pleased.” She explains that women get the health care they want, the church does not have to pay for or endorse birth control, and everyone wins. This is a feeling attested to by Rev. Thomas Reese, a Jesuit priest at Georgetown University’s Woodstock Theological Center. Reese believes that the religious liberty issue went away when the birth control compromise ensured that religious groups do not have to pay for or recommend birth control coverage. He further rationalizes that “most Catholic women want, and use, birth control.”

The Obama administration hears the debate and is actively defending their decision. When responding questions about the possible legal ramifications of the policy, Secretary of Health and Human Services Kathleen Sebelius stated the administration had their legal department “look at a whole host of legal issues.” To minimize litigation and compromise further with the opposing side, the administration has said they are currently crafting a plan to present to self-insured employers that have religious objections to the policy. Having the majority of America’s support in addition to working towards compromising with self-insured employers has put Obama in a strong political position. If polling is accurate, he is on the winning side of the debate regarding contraception.  This is great news for his political standing, however, the birth control policy has to withstand a barrage of scrutiny to remain effective.

This topic is going to be heavily litigated and both sides have compelling arguments.  However, the Obama compromise is a substantial step in the right direction. It is hard to make an argument that your religious freedom is being violated when you (the employer) are taken out of the equation. What argument can be made if an employer does not have to or is not expected to even discuss birth control with their employees is not readily known. It is hard to see where a violation of rights of potential employers comes from if the burden of insuring is now placed in the hands of the insurance companies.

Furthermore, the argument that Wenski makes that the policy is unconstitutional because “it forces employees of Catholic charities, hospitals and universities to receive birth control coverage” is unlikely to stand up. Simply because the employees have access to this right does not mean they have to use this right. President Obama is not forcing anyone to use the birth control; he is just making it accessible to the individuals that choose to use it. It would most likely be hard to convince the public or a court that a piece of legislation is unconstitutional because it provides employees additional coverage and the decision whether to use is left to their discretion. Nevertheless, there is a valid objection that can be made about self-insured employers. The administration has not rectified the situation and this could be problematic. A religious freedom argument could be made if self-insured religious organizations are asked to pay for something they do not believe in. The President must know this and judging by the initial compromise, it is easy to believe he will come up with a fair solution to please all interested, objective parties.

Sources:

http://www.reuters.com/article/2012/03/01/us-healthcare-contraceptives-poll-idUSTRE8200C320120301

http://www.npr.org/2012/02/10/146710901/catholics-have-mixed-reaction-to-birth-control-reversal

http://www.chicagotribune.com/news/politics/sns-bc-apfn-us–birthcontrolpolitics,0,231697.story

http://www.lifenews.com/2012/02/15/sebelius-didnt-talk-to-bishops-about-obama-mandate/

http://www.christianpost.com/news/obamas-birth-control-mandate-unlikely-to-win-court-challenges-legal-scholar-says-70598/

http://www.foxnews.com/politics/2012/02/24/7-states-sue-to-block-contraception-mandate/

http://abcnews.go.com/blogs/politics/2012/02/rick-santorum-jfks-1960-speech-made-me-want-to-throw-up/

http://www.npr.org/templates/story/story.php?storyId=146663659

http://thehill.com/blogs/congress-blog/healthcare/210863-president-obama-and-bishops-should-keep-talking

http://www.mpnnow.com/opinions/x1676726073/EDITORIAL-Bishops-Obama-should-work-this-one-out

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Every Move You Make May NOT Be Protected

Alyssa Enzor, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Can the government put a GPS tracking device on your car and monitor your movements for a month without violating your Fourth Amendment rights? The Supreme Court is currently deliberating this question.

On November 8th, the Court heard oral arguments in U.S. v. Jones. Antoine Jones was suspected by the FBI of trafficking drugs. To confirm these suspicions, agents secretly attached a GPS tracking device to his car without first obtaining a warrant. Well, more correctly, agents had a warrant, but they let it expire before they managed to get the device on the vehicle. The warrant said ten days, they took eleven. As a result, we have a potentially momentous Supreme Court case. The GPS device that was attached to Mr. Jones’ car was advanced. Whenever the car was in motion, the device sent detailed location information every ten seconds via remote satellite to agents. These agents were then able to track the vehicle by logging into a remote computer system. The major issue before the Court is whether the use of this device implicates Fourth Amendment protections.

A search without a warrant is per se unreasonable under the Fourth Amendment. However, Mr. Jones must establish that a search actually occurred by meeting the two-part test outlined in Katz v. U.S. Mr. Jones must show: (1) first, that he exhibited an actual subjective expectation of privacy, and (2) second, that his subjective expectation of privacy is “one that society is prepared to recognize as reasonable.” If he proves both prongs of this test, then he is entitled to Fourth Amendment protection.

Furthermore, the Court must also determine whether U.S. v. Knotts is applicable, and if so, to what extent. In Knotts, the Court held that the installation and use of a beeper device to track a drug suspect across state lines was not a search in violation of the Fourth Amendment. In particular, the Court held that a person has no reasonable expectation of privacy in his movements from one place to another. The Court noted in Knotts that a “car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view.”

The issue in U.S. v. Jones is whether Mr. Jones can demonstrate a reasonable expectation of privacy concerning his travel over public roads. More accurately, does society reasonably expect that every time an individual climbs into his car, his movements may be monitored by the police or other enforcement agencies? If the Court rules that Mr. Jones had no expectation of privacy, and thus, there was no need to obtain a warrant to attach and use the GPS device, then that decision potentially opens the door for twenty-four/seven surveillance of people traveling in their vehicles.

At oral argument, the government relied heavily on Knotts. Michael Dreeben, Deputy Solicitor General of the United States, focused on the fact that in Knotts, the device allowed the police to relocate the suspect after he ditched the officers’ car that was tailing him. Chief Justice Roberts jumped at this chance to distinguish the case, noting that Knotts was “much more like traditional surveillance,” where the beeper just helped the cops follow the car from “a slightly greater distance.” This GPS technology, he said allows police to “just sit back in the station and . . . push a button whenever they want to find out where the car is.”

Chief Justice Roberts also elicited snickers from the rest of the panel when he asked Mr. Dreeben whether there would be a search if the police put a GPS device on each of the Supreme Court Justices’ cars for a month. Justice Breyer echoed this concern in even more sweeping language, stating “If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” He went on, focusing on the practical distinctions between the limited surveillance techniques that used to be available to police and the broad surveillance that is now possible through the use of advanced technology. “No one,” Justice Breyer stated, “at least very rarely, sends human beings to follow people 24 hours a day . . . but with the machines, you can.” A ruling in favor of the government would require no reasonable suspicion, no probable cause, in fact, no proof of any kind, for the police to attach a device to a person’s vehicle and find out where he or she goes each day.

Although all of the Justices expressed concern about whether the Fourth Amendment continues to protect citizens from the relentless advancement of technology which erodes individual privacy, Justice Scalia was the only one to truly show his hand. He came right out and denounced the Katz test, saying that it had shrunk the reach of the Fourth Amendment entirely too much. He emphasized his concern that the installation of the device itself was impermissible. He relied on the logic of technical trespass, rather than the more nuanced ‘privacy interest’ determination. He was profoundly disinterested in the entire discussion surrounding the monitoring of the device, suggesting that such concerns were the province of the legislature, not Fourth Amendment jurisprudence.

Jones’ attorney, Stephen Leckar, may have been right on target to capture Justice Scalia’s fancy, arguing for a narrow rule which holds that the installation of the device itself is a search or seizure requiring a warrant. However, he likely did not gain much support from the rest of the panel with this proposed rule, as the majority of the Justices seem to be seeking a broader standard. Justices Sotomayor and Ginsburg made repeated references to an Orwellian outcome and to Big Brother surveillance. Justices Alito and Kagan indicated that they are concerned with the long-term implications of advancing technology. Both Alito and Kagan criticized an approach centered on technical trespass, noting that new surveillance tools can always be developed to obtain the same information without committing a trespass. Justice Breyer was certainly not on board with the “installation only” approach, as he sought a standard to determine when GPS monitoring was reasonable and desirable. Unfortunately, Mr. Leckar seemed unable to offer a constitutional line in the sand that was satisfactory to the Justices. Upon his proffering one such proposal, Justice Sotomayor exclaimed, “What an unworkable rule tethered to no principle!”

After analyzing the progression of the oral arguments, it seems safe to say the Court is also not buying the mosaic or pattern theory advanced by the D.C. Circuit. This theory rests on the idea that there is a greater privacy interest in aggregated data gathered over a long period of time because all of the tiny pieces together create a larger, more complete picture of an individual’s life. Stealing a page straight from the playbook of Justice Sentelle’s dissent in the opinion below, Justice Scalia neatly countered this argument, saying “but zero times one hundred is still zero.” Counsel for Mr. Jones wisely abandoned the mosaic theory, and returned to his narrow approach—that the installation of a GPS device itself is a search or seizure requiring a warrant.

In summary, the Court seems quite uncomfortable with the idea of taking this type of broad digital surveillance completely out from under the Fourth Amendment’s umbrella. Although the government argues that state legislatures can act to prevent the much feared “1984 world,” the Justices seem skeptical about leaving the issue in the hands of the often-late-to-the-party legislative branch. On the other hand, the Court seems unable to come up with a workable principle on which to hang this case, without creating a landslide of Fourth Amendment precedent to come tumbling down around their ears. Placing the Fourth Amendment to the side, the issue is quite simple: is it really that hard to get a warrant, officers? Unfortunately, the Court is caught in the web of their own precedent. Those of us concerned with the ever-extending reach of the ‘long arm of the law’ must fervently hope they are able to disentangle themselves. We will know soon, as the Court is expected to issue a ruling at the end of June 2012.

Sources:

Katz v. United States, 389 U.S. 347, 357 (1967).

United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010).

United States v. Knotts, 460 U.S. 276 (1983).

http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf

http://jolt.law.harvard.edu/digest/supreme-court/u-s-v-jones-oral-arguments

http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourth-amendment-case/

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Prison Time for Acquitted Conduct Remains a Reality in America

Will Turner, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review, Vol. 3

After delivering Alabama’s Albritton lecture on November 16,[1] former U.S. Supreme Court Justice John Paul Stevens was asked by an audience member to recall an opinion he had written of which he remained especially proud. Without hesitation, Justice Stevens referred to his dissent in United States v. Watts, where he had disagreed with the majority’s holding that federal courts may consider acquitted conduct when determining prison sentences under the Federal Sentencing Guidelines. Although the Guidelines have since been made advisory, they remain the rubric by which virtually all federal sentences are determined, and federal district judges continue to enhance sentences based on conduct never proven beyond a reasonable doubt.

This past summer, I had the opportunity to intern at the Federal Defender’s office in Montgomery, where I witnessed Sentencing Hearings for the first time. Families of defendants were often stunned at the degree to which Sentencing Hearings “looked like trials,” and how prison time could be enhanced based merely on whether the sentencing judge found that some alleged (often uncharged) conduct had probably occurred.

Unfortunately, the perception is accurate. After a defendant has been convicted of a crime in federal court, the sentencing judge may take into account a myriad of alleged acts unrelated to the charge on which the conviction was applied. The standard for finding guilt for sentencing purposes is preponderance of the evidence, and after taking evidence and arguments from the prosecution and defense, a single district judge issues a final decision as to guilt, as well as the conditions and length of the sentence imposed. The hearings usually concern conduct for which the U.S. Attorney could not acquire enough evidence to convict beyond a reasonable doubt, and in my limited experience, the evidence presented mostly included “he said, she said” testimony, with judges, more often than not, believing the person not wearing shackles. In Watts, Justice Stevens fought a losing battle, arguing that the proof beyond a reasonable doubt standard was the traditional norm enshrined in the Court’s constitutional jurisprudence, and as such, should be read into the sentencing guidelines.

Regardless of the constitutionality of modern sentencing standards, enhancing prison time for conduct not proven beyond a reasonable doubt is bad policy. While it is relatively easy to make philosophical or moral arguments against such a policy, perhaps the most obvious argument against it is considerably simpler. Money.

The official estimated cost of housing one federal prisoner for one month is just under $2,000.[2] That estimate, however, is from 2001, and current levels are almost certainly higher. In 2006, over $68 billion was spent on corrections in the United States, and the overall prison population is now close to 2.3 million.[3] That population continues to grow exponentially and represents the highest per capita prison population in the world.[4] More than one of every hundred American adults is incarcerated.

Perhaps even more strikingly, only 7.9 % of federal prisoners are sentenced on convictions of violent crimes.[5] This particular statistic is confirmed anecdotally by my own experience. Last summer, virtually every probation report that I looked at noted that there were “no identifiable victims” of the crime at issue. The convictions in the reports I saw often involved unlawful possession of narcotics or firearms; less often did they involve material harm to a human being.

A major cause of the extraordinarily high rate of incarceration in the United States has been traced to the length of prison sentences, and sentence length comes directly from the Federal Sentencing Guidelines. Aside from the fact that sentences in the United States tend to exceed sentences in other nations for the same or similar offenses, enhancements based on acquitted or unprosecuted conduct add even more time to already to severe sentences.

Adding to the already burdensome inclusivity of the Federal Sentencing Guidelines is the Armed Career Criminal Act (ACCA), by which federal prisoners convicted of three past “violent felonies” or “serious drug crimes” are automatically sentenced to a minimum of fifteen years. Speaking at Alabama in 2010, Chief Justice John Roberts openly criticized mandatory minimum sentences such as the ACCA as being bad policy.

Yet despite recognition of the problems inherent to the system, it remains largely intact. At least one source of the problem is the broad appeal that “tough-on-crime” political platforms convey, and legislators at the state and federal level continue to be successful running on such a message. It would be unheard of to run a “soft-on-crime” campaign, even knowing the financial benefits that a softer on sentencing policy would entail.

Although politicization of the issue may make the prospect for reform weak, at least some precedent exists to allow for change outside of legislative action. In 2005, the Supreme Court held in United States v. Booker that judges would no longer be required to sentence within the sentencing guidelines. Now, judges may make either upward or downward “variances” outside of the guidelines. This has opened the door to allow judges to consider character evidence, the overall impact that lengthy sentences have, and to make a downward departure from the guidelines without having to have a codified reason for doing so.

Booker also held that the original calculation of the maximum possible sentence must be based on facts either found by a jury beyond a reasonable doubt or admitted by the defendant. Effectively, this aspect of the holding caps the effect that acquitted conduct can have on a sentence by requiring that the maximum possible sentence corresponds to the convicted conduct.

Also, since the passage of the ACCA, the Supreme Court has had to clarify on several occasions whether particular state offenses qualified as “violent felonies” or “serious drug crimes,” and on many occasions the Court has held that crimes held by lower federal courts to meet those standards were not, in fact, “violent” or “serious.”

These holdings by the Court have had piecemeal impact on sentencing practice, but broader reform is still needed. Most Americans can quote the “reasonable doubt” standard from an early age, and many probably assume that people don’t go to prison except when that standard has been met. The Federal Sentencing Guidelines, however, make that assumption incomplete because federal inmates often stay in jail much longer because of alleged conduct never proven beyond a reasonable doubt. A heightened public awareness of the impact and expense of the guidelines would go a long way towards a much needed overhaul of U.S. practice.

General Sources:

United States v. Watts, 519 U.S. 148 (1997)

United States v. Booker, 543 U.S. 220 (2005)

http://en.wikipedia.org/wiki/Armed_Career_Criminal_Act

http://www.nj.com/times-opinion/index.ssf/2011/06/opinion_families_against_manda.html

http://en.wikipedia.org/wiki/Federal_Sentencing_Guidelines

[1]http://www.law.ua.edu/resources/podcasts/lectures/Albritton_Lecture_John_Paul_Stevens-11-16-11 (41:30).

[5] http://bjs.ojp.usdoj.gov/content/pub/pdf/p09.pdf

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Alabama’s Immigration Law Does No Good

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Heather Miller, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

Alabama House Bill 56 is the latest and most aggressive state immigration law to date. According to Micky Hammon, the bill’s chief sponsor, it was designed to “attack every area of an illegal alien’s life.”  Surpassing the controversial Arizona and Georgia legislation, the bill calls for strict enforcement of its measures, which range from creating a civil cause of action against employers who fire citizens while retaining illegal aliens; requiring public schools to determine the immigration status of all incoming students and their parents;  to requiring police officers to make a reasonable attempt to determine the residency and immigration status of a person stopped, if there is a reasonable suspicion that the person is an illegal immigrant.

The new law, passed in by the Alabama legislature and signed by Governor Robert Bentley, has already been challenged as a preemption of federal power, with mixed results.  But perhaps more interesting is the specter of racism cast by this law. There are illegal immigrants of every color in this country.  However, it is the Hispanic community, both U.S. citizens and illegal immigrants, which has become the focus of this debate.  As such it is only appropriate to consider the effects of the bill on both groups.

Latinos make up approximately 3.9% of the Alabama’s population, or about 185,602 people.[1]  It is estimated that illegal immigrants make up around 64% of the Hispanic population, or around 120,000 people.[2] Moreover, the two groups are often interwoven—i.e. children, who are citizens, may have parents who are here illegally.  The implications of H.B. 56 for Hispanic citizens of Alabama are terrifying.  Already nightly newscasts are broadcasting stories on “How to Stay Safe,” which include tips like always carrying “papers.” After the passage of H.B. 56, Hispanic Americans are forever foreigners in the eyes of the fellow citizens—they must be constantly ready to prove that they belong here as citizens and lawful residents.  However, “showing papers” may be the least of these worries if the Alabama legislature is successful in getting the law enforced in its entirety.

U.S. District Court Judge Sharon Blackburn blocked some portions of the law which made it a criminal offense to conceal, harbor, transport, or shield an illegal immigrant.  If the Alabama legislature is successful in its appeal, many Hispanic families would be confronted with the dilemma of being forced from their home in order to keep their family together, or face criminal charges if they continue to have contact with family members who are illegally in the state. Furthermore, approved portions of the law place children, who are legally in the U.S., whose parents are illegal immigrants, in an untenable position. Also, H.B. 56 section 30 makes it a felony for an illegal immigrant to enter into a business contract with the State of Alabama.  The implications may not be apparent at first glance, but in many parts of the Alabama, utilities, such as water, sewage, and electricity, are only available through the State. Clearly, as claimed in the Federal appeal, Alabama’s new law is “highly likely to expose persons lawfully in the United States, including school children, to new difficulties in routine dealings.”[3]

For those Latinos not lawfully in the U.S., the message is clear—Get Out. The only remaining question is where? Although some families are leaving the country voluntarily, many are simply crossing state lines. Either way, they are moving carefully, since the law became effective on September 29th , many illegal immigrants fear detention, or criminal charges, if they are seen by law enforcement. As Vianey Garcia, an illegal immigrant said, “We have to move. We have to leave everything.  We can’t take anything because I’m afraid they can stop us and say why are you moving?”

The repercussions of H.B. 56 are already apparent.  The Thursday the law went into effect (September 29th) scores of Latino students were absent from schools, and many have never returned.  Although it is too early for reliable statistics, anecdotal evidence from the community suggests many Latino families are fleeing in fear. Proponents of the law have lauded the early signs of success; they are driving immigrant families from the state. However, it is the climate of fear created by H.B. 56 that most worries its opponents.

Fear, it is the one word that cuts through every article, news report, and interview on H.B. 56. After all, the law is an “attack” on illegal immigrants; and by proxy, their family members who are legally in the U.S., and let’s be honest, Latinos in general. The law tried to create criminal and civil sanctions not just against illegal immigrants themselves, but also against anyone who would employ, transport, aid, or even encourage them—they have been cast as lepers by Alabama lawmakers. As the stereotypical face of illegal immigration, Hispanics face suspicion and disdain lest others be exposed to the taint of illegal immigration.

It has been said H.B. 56 and its Arizona and Georgia counterparts are a cry for help—an extreme reaction to the federal government’s inaction to state immigration concerns. And like most extreme measures, it has produced a result, but at what cost? The federal government has cited concerns that extreme state immigration policies interfere with the federal strategy and enforcement—hardly a convincing argument when it was the inaction of the federal government that prompted the passage of H.B. 56 in the first place. Civil rights groups, like the Southern Poverty Law Center, claim the law will lead to racial profiling, chill children’s access to education, and result in violations of the Due Process and Equal Protection clauses. Church leaders have also protested the law, claiming it violates, and in some cases would criminalize actions prompted by Christian values. The agricultural sector says it is unable to find a replacement workforce, that crops are rotting unpicked in the fields. For a state so recently ravaged by tornadoes, contractors are concerned that a dearth of workers will cause long delays in rebuilding the state.

Furthermore, proponents of the immigration law claim it is designed to protect the residents of Alabama from bearing the costs of illegal immigrants; but there is no clear evidence that illegal immigration creates a financial burden.[4] Moreover, evidence exists that illegal immigrants may be an economic boon. It is estimated that in 2010 illegal immigrants in Alabama paid $130.3 million in state and local taxes.[5] Furthermore, “if all unauthorized immigrants were removed from Alabama, the state would lose $2.6 billion in economic activity, $1.1 billion in gross state product, and approximately 17,819 jobs.”[6]

I am not contesting the importance of resolving illegal immigration. It is an important issue that begs resolution, but H.B. 56 is not the solution; moreover, it creates more problems.Furthermore, I recognize that illegal immigrants are not United States citizens, and therefore not entitled to all of the rights and privileges guaranteed by the Constitution. However, this “attack” is not well executed, and both legal and illegal residents of Alabama have been harmed by its carelessness. H.B. 56 is so poorly crafted, and that is evident in that it has created enormous hardships without serving any of its stated interests. The problem of illegal immigration deserves more consideration than reactionary legislation.  History is filled with examples of minorities whose rights and liberties have been trampled because they are the scapegoat for a larger problem. The state of Alabama has a chance to choose a different road; to draw on its history and turn from the, perhaps popular, path of segregation and instead draft legislation that actually addresses the needs of its citizens.

Sources:

http://news.yahoo.com/obama-administration-appeals-alabama-immigration-law-220502628.html

http://blog.al.com/birmingham-news-commentary/2011/10/viewpoints_undocumented_doesnt.html

http://www.csmonitor.com/USA/2011/0929/Alabama-life-already-changing-under-tough-immigration-law

http://www.splcenter.org/get-informed/news/splc-civil-rights-groups-file-emergency-request-to-block-key-provisions-of-alabama

http://abcnews.go.com/blogs/headlines/2011/10/latino-students-withdraw-from-alabama-schools-after-immigration-law-goes-into-effect/

http://www.scribd.com/doc/66701706/Summary-Opinion-on-Alabama-Immigration-Law

http://blog.al.com/breaking/2011/09/federal_judge_throws_out_xxxx.html

http://www.immigrationpolicy.org/just-facts/new-americans-yellowhammer-state

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

Justice Department Challenges Texas Congressional Redistricting Plan

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

James Tarbox, Junior Editor, Alabama Civil Rights and Civil Liberties Law Review

By: James Tarbox

The United States Department of Justice has challenged the newly adopted Congressional redistricting plan enacted by the Texas State Legislature.  The Department of Justice argues that the plan violates the Voting Rights Act of 1965 which requires that minority groups be fairly represented in Congress. Texas is one of fifteen states under Department of Justice orders to seek and have approval granted for changes that are made to Congressional redistricting maps.  In its filing with the Federal District Court for the District of Columbia, the Department argues that the redistricting plan, as it would be implemented, creates no additional Latino or opportunity districts for recognized minorities.

After the 2010 Census, Texas was allotted four more Congressional districts due to population growth. Much of this growth was attributed to minority communities. Democrats in Texas, as well as groups representing minorities, have argued that the new districts do not properly represent this minority population growth. They argue that the new districts pack minorities into the same districts and thereby do not allot enough Congressional seats to properly represent the minority population. They claim by not adopting new districts that account for the minority population growth, Texas is disenfranchising the minority voters according to the Justice Department.

The question that must be asked is whether the provisions of the Voting Rights Act of 1965 are still relevant and needed in this day and age.  Is it necessary to provide minorities with guaranteed representation in Congress? To be honest, my only personal interaction with a judicially enforced minority district is the seventh district in Alabama.  This district covers portions of Birmingham, Tuscaloosa, and all the way down to Montgomery.  In a conversation with a friend, my friend wanted to know why the district was so large. More importantly, why does the district cover parts of three municipalities, two of which are the largest in the state? My friend wished that this district was not so gerrymandered. Looking at a Congressional map of Alabama, one can see how the boundary lines of AL-7 seem to have no rhyme or reason. However, it is clear to see that the district runs straight through AL-6 and contains the City of Birmingham, a majority African-American city. I asked this person, “Would you rather the district be split with no guaranteed representation, or would you rather it stay close to the way it is with a guaranteed representative of minority status?” This question is one that must be asked today when discussing the relevancy of the Voting Rights Act of 1965.  Have minorities come far enough in the battle for equality that the provisions of the Act are no longer needed? In Alabama, I would argue that they have, at least on a smaller level. One has to look no further than a special election in Cullman, AL in January 2008.  Cullman, which used to be known as a “sun down town”, elected James Fields as a state representative. Fields, an African-American, was elected in a majority white district.  While this is only one example of a minority winning an election as a minority in the district, it is evidence that even in a part of Alabama considered to be divided along racial lines, an African-American can still get elected. Based upon this limited evidence, I would still argue that perhaps it is time to end the application of the Act. When it comes down to it, in Alabama anyways, if a district encompasses a large metropolitan area, there is a good chance that there will be a large number of minority voters. Voters who are organized in groups by interests can wield great amounts of power by providing a voting bloc to certain candidates. So how is this relevant to Texas?

In Texas, the issue is whether the districts fairly represent the population segments. Currently, Texas is under judicial order to ensure that there is representation for minorities.  Under the new districting plan, minorities still retain the same number of Congressional districts as under the 2000 Census redistricting plan. However, minority group leaders argue that there should be more because of the actual population break-down in Texas. Since 2000, the Hispanic population in Texas has grown from 32 percent up to 37.2 percent of the total population. Additionally, of all the population growth in Texas, 89 percent was non-white. These numbers leave critics calling for an increase in both Hispanic and African-American districts. Currently, there are 9 Hispanic districts. Critics are now calling for this number to be increased to 13 or 14 districts.

I will be completely honest, even if I looked at a district map of Texas, I could not tell you where there are majority minority areas.  None of the current news articles on the topic discuss geographic layouts of the districts.  Every representative in Congress represents around 700,000 people. While a representative could represent one small area with 700,000 people, he or she could represent part of an urban area and part of a more suburban or rural area.  If the Hispanic population masses are in a contained area, the lines could be drawn to guarantee a Hispanic representative. But back comes the relevancy question of the Act.  Is it necessary to provide districts for minorities simply because there has been a history of under-representation and discrimination? How long do we have to atone for the errors of those in the Civil Rights era?

I would argue that there is not a need to guarantee representation. Our country has come a long way since 1965, and I believe that the vast majority of people have moved past that era in our history. That is not to say that everyone, white, black, Hispanic, etc., does not hold a preference for voting for their own race.  However, it is time to move forward. We should not be electing candidates based upon the color of their skin, but by the merits of their campaign. Politics will never be fair. Someone will always have more money, more connections, and less ethical standards than other candidates. It does not matter where you live, there will be a politician fitting the politician mold. Additionally, there will always be the incumbency advantage. When I took an American politics class in my undergraduate curriculum, the incumbency re-election rate was around 97 percent. I am sure this percentage has fallen with the Congressional elections of 2008 and 2010, but it is still high.

Looking at the numbers in Texas, there will be a time, even if not now, where Hispanics will be able to use their population numbers to heavily influence the outcome of elections. While the current voting population percentage of Hispanics is 24 percent, this number will steadily grow. With over 37 percent of the total population of Texas, I would imagine that 24 percent will soon be over 30 percent. Even if Congressional district lines are not drawn to guarantee a Hispanic representative, by organizing and getting out the vote, Hispanics will still be able to have candidates elected. It’s all about running successful campaigns and getting prospective voters to support your candidate. That being said, I believe that the Republican-held legislature in Texas did go too far, if the allegations are correct. The Hispanic population cannot be crammed into one area.  The population could have been spread out.  It should be remembered that it only takes 50 percent plus one vote to win an election.  Even as someone who is a Republican and wants the Republicans to maintain a firm grasp on Congressional seats in Texas, I believe that there should be opposition in a district. In fact, I think that opposition and healthy campaigns are good things. When a politician faces opposition, he or she is forced to uphold campaign promises and actually govern instead of being a do-nothing kind of politician.

When it comes down to it, I believe that the Texas redistricting plan will be overruled by the courts.  This is due to the fact the Voting Rights Act is still being actively enforced by the Justice Department.  While Texas can fight the federal government, based upon the current allegations, I do not believe that it will be able to win in full and keep its current redistricting plan. In order to make the Act fully obsolete, I believe that it should be phased out in stages. This phasing out can be accomplished by limiting the number of new districts that can be guaranteed for minority representation. So instead of giving 13 guaranteed districts, the court could order 11 guaranteed minority districts. At the same time, it should be made known that the Act is being phased out and that this result is a compromise. Obviously everyone would not be happy about this solution. However, for those people advocating for guaranteed minority representation and gerrymandered districts reflecting as such, this would be a fair compromise over completely ending the implementation of the Act all at once.

What is funny in all of this is that this will not be the first time that Texas has seen its redistricting plan shot down by the courts. Its plan following the 2000 census was overturned by the Supreme Court in 2006. Texas needs to figure out how to better draw lines to ensure that legal battles do not ensue after their implementation (assuming that the Voting Rights Act is continued to be upheld and implemented by the courts). There is a lot to be said for “to the victors go the spoils.” In this case, the Republican-led Texas State Legislature acted on this principle.  However, Texas must follow court orders. Even if the Congressional districts are drawn in a manner that spreads the wealth around to minority groups, Hispanics still only currently represent 24 percent of the voting population. It is true that eventually this 24 percent will grow to be much larger; however, for the time being, Republicans can remain in control with good campaigning and by ensuring that once elected, they govern in an ethical manner.

Sources of Information:

http://latimesblogs.latimes.com/nationnow/2011/09/justice-department-condemns-texas-redistricting-.html  

http://www.mainjustice.com/2011/09/20/doj-challenges-texas-redistricting/  

http://online.wsj.com/article/SB10001424053111903374004576581191758640176.html  

http://latino.foxnews.com/latino/politics/2011/09/19/doj-2-texas-voting-maps-dont-meet-federal-law/  

http://www.google.com/hostednews/ap/article/ALeqM5hFos_twnnWpfdw810eI-gjZaevlg?docId=f18bc78facac4c17876197eb55b1b0ad

http://ballotpedia.org/wiki/index.php/Redistricting_in_Alabama

http://en.wikipedia.org/wiki/United_states_house_of_representatives

http://www.cbsnews.com/8301-503544_162-20109665-503544.html

 

Disclaimer: The copyright in each article and post is owned by its respective author. Opinions expressed are those of the respective contributor and not presented as the views of the Alabama Civil Rights and Civil Liberties Law Review, its editors, the University of Alabama School of Law or the University of Alabama Board of Trustees or any other entity not specifically mentioned. All statements on this site belong to its writer. In addition, the views, opinions, and conclusions expressed in this page are those of the author and not necessarily those of The University of Alabama or its officers and trustees. The content of this page has not been reviewed or approved by the University of Alabama, and the author is solely responsible for its content.

 

 

 

 

 

 

 

 

 

 

 

Follow

Get every new post delivered to your Inbox.

%d bloggers like this: