Unrecompensed Rape: Race and Judicial Discretion’s Responsibility for the Disparities in Sex Crime Sentencing By: Meg Deitz

Unrecompensed Rape: Race and Judicial Discretion’s Responsibility for the Disparities in Sex Crime Sentencing

By: Meg Deitz

On January 17, 2015, in Stanford, California, a female college student woke up in a hospital room to learn she had been sexually assaulted while lying unconscious behind a dumpster.[1] Five months later, her rapist, Brock Turner, a Stanford University swimmer, received a six-month jail and three-year probation sentence for three counts of sexual assault of an unconscious person, but Turner was released after three months based on time served.[2] After Turner’s sentencing, public accusations rose blaming “white privilege” for lenient rape and sexual assault sentencing.[3] However, outliers to harsh sentences for black men and a lack of data articulating the race, background, and sentence severity of sex offenders handicaps current analysis and reform. Yet, highly prominent in recently reported lenient sentences is the power of judicial discretion to disregard mandatory or advisory rape sentencing guidelines based on racial and gender stereotypes.

Following Brock Turner’s lenient sentence, race came to the forefront of the discussion of sex crime sentencing disparity after Corey Batey, an African American college football star, received a sentence of fifteen years for raping an unconscious fellow student.[4] Batey’s comparably harsh sentence to Turner’s six-month incarceration for raping an unconscious woman remains highlighted as an example of the overzealous punishment of black men by the courts.[5] However, soft sentences and a lack of recent research complicates asserting a claim blaming sentencing disparity primarily on racism.

Despite Batey’s conviction, several cases involving lenient sentences for black sex offenders emerged in the media over the last few years. Notably in Corey Batey’s case, the circumstances varied from Turner’s assault. Batey was involved in the filmed group assault of an unconscious woman along with three fellow football players.[6] The cameraman and only white member of the group, Brandon Vanderburg, currently faces an upcoming sentencing hearing with the same convictions and sentence range as Batey.[7] Last year, another black college football player, Sam Ukwuachu, received only a six-month jail and ten-year probation sentence for raping a conscious and resisting freshman.[8] Finally, Jamil Cooks’ situation remains the most unusual of the group. Cooks, who is also black, obtained a court martial and conviction while a student at the Air Force Academy, leading to his expulsion and required registration as a sex offender.[9] Despite his conviction in 2013, Cooks enjoyed the opportunity to play football and obtain an education at Alcorn State the following school year with Alcorn State noting Cooks’ sex offender status on a school website.[10]

Along with these lenient cases, recent research fails to specifically identify the race and incarceration period of sentenced sex offenders; however, past collective research suggests race plays a primary role in disparate arrest for sex crimes.[11] A 1997 sex offender analysis by the Bureau of Justice Statistics noted that more whites were arrested and eventually incarcerated for rape and sexual assault than African Americans.[12] However, a 2013 study of felony defendants by the Bureau of Justice Statistics reported that from 1990 to 2009, 42% of black defendants versus 29% of white defendants possessed a charge of rape as the most serious charge against them.[13] The study also noted that 89% of convicted rapists experienced incarceration, but failed to detail the length of incarceration or the race of these offenders.[14] Five years have passed without more recent, reliable statistics detailing the relation of race to rape sentencing from 2009 to 2016 and studies citing the length of incarceration for rape by race of the defendant remain largely non-existent. However, the high trend of rape arrests in 2009 suggests that racial stereotypes play a role in present-day enforcement and adjudication of sex crimes.

An explanation of the previously mentioned lenient cases may be tied to Sam Ukwuachu and Jamil Cooks’ athlete status. Athletes maintain a unique status in the social fabric of collegiate institutions where their skills and energy provide them a celebrity status complete with adoring fans.[15] While many college athletes lack the stardom of professionals, college athletes do receive special treatment from courts. In fact, only one in five convicted college athletes ever serve any jail time compared to four out of every five convicted professional athletes.[16] Also, both professional and collegiate athletes enjoy reduced charges, particularly in sex crimes, the most commonly charged crime against athletes.[17] In the case of Corey Batey, the harsher sentence, despite his athleticism, possibly extends from the film and group assault factors of his crime as well as his race. By contrast, the cases of Jamil Cooks and Sam Ukwuachu featuring leniency for black college students may have more to do with their athlete status than any other factor.

Athleticism may have also played into Brock Turner’s reduced sentence; but, regardless, Turner’s reduced sentence did not go unnoticed by California lawmakers. Following Turner’s sentencing hearing in June 2016, the California legislature introduced a new bill, AB 2888, setting a mandatory minimum three year prison term for the sexual assault of an unconscious person.[18] The proposed mandatory minimum is in between the six months Turner received and the six years requested by Santa Clara County prosecutors.[19] However, the blanket mandate of three years’ incarceration still creates problems for sentencing disparity.

Despite United States v. Booker changing the federal mandatory guidelines to advisory in 2005, some states maintain a sentencing system of more obligatory than advisory guidelines for all or some crimes.[20] Mandatory guidelines tend to foster higher enforcement against minorities and increased guilty pleas for lesser offenses as defendants attempt to avoid a mandated prison sentence.[21] Thus, criminal defendants are forced to gamble between seeking a jury trial and opting to just plead guilty, even if innocent, to avoid an unfavorable verdict and fixed sentence.[22] Additionally, despite their name, mandatory guidelines are not always mandatory as judges may still depart from the guidelines for substantial or compelling circumstances.[23] Judicial discretion enabling departure from both advisory and mandatory guidelines traditionally causes many judges to pass judgment on the victim rather than the attacker based on the judge’s personal opinions.[24] The answer to sex crime sentencing disparity exists somewhere between robbing judges of all discretion and refusing to limit their discretion. Judicial education on rape statistics for unreported, charged, and convicted rape claims; increased prosecutorial appeal of overly lenient sentences; or sanctions against judges for inappropriate and erroneous sentencing are possible solutions in need of further investigation.[25]

However, the issue of inconsistent rape and sexual assault conviction and sentencing demands an expedited remedy to remove nineteenth century mentalities from twenty first century justice and reform. This week, public critiques of sex crime punishment increased not only in the United States but also in Canada after a Canadian judge asked a rape victim why she couldn’t “just keep [her] knees together” and then proceeded to acquit her attacker. [26] Greater public outcry, tailored research, and prompt, informed legislative action is needed to protect the most disadvantaged party, the victim, from runaway judicial discretion and to ensure justice for their suffering.


[1] Emanuella Grinberg & Catherine E. Shoichet, Brock Turner Released from Jail After Serving 3 Months for Sexual Assault, Cable News Network (Sept. 2, 2016), http://www.cnn.com/2016/09/02/us/brock-turner-release-jail/.


[2] Id.


[3] See Ashley Fantz, Outrage Over 6-Month Sentence for Brock Turner in Stanford Rape Case, Cable News Network (June 7, 2016), http://www.cnn.com/2016/06/06/us/sexual-assault-brock-turner-stanford/; Shaun King, King: Brock Turner and Cory Batey, Two College Athletes Who Raped Unconscious Women, Show How Race and Privilege Affect Sentences, N.Y. Daily News (June 7, 2016), http://www.nydailynews.com/news/national/king-brock-turner-cory-batey-show-race-affects-sentencing-article-1.2664945.


[4] David Boroff, Former Vanderbilt Football Player Cory Batey Sentenced to 15 Years in Prison for Raping an Unconscious Woman with His Teammates, N.Y. Daily News (July 17, 2016), http://www.nydailynews.com/news/crime/ex-vanderbilt-football-player-cory-batey-sentenced-15-years-article-1.2712969.


[5] Fantz, supra note 3; King, supra note 3.


[6] Boroff, supra note 4.


[7] Id.; Mike McPhate, Former Vanderbilt Football Player Found Guilty in Campus Rape, N.Y. Times (June 19, 2016), http://www.nytimes.com/2016/06/20/us/brandon-vandenburg-vanderbilt-univeristy-guilty-rape.html.


[8] Joe Nocera, Baylor, Football and the Rape Case of Sam Ukwuachu, N.Y. Times (Sept. 1, 2015), http://www.nytimes.com/2015/09/01/opinion/joe-nocera-baylor-football-and-rape.html.

[9] Megan Chuchmach & Brian Ross, Registered Sex Offender Emerges as Star College Football Player, Am. Broad. Co. (Oct. 28, 2014),  http://abcnews.go.com/US/registered-sex-offender-emerges-star-college-football-player/story?id=26491067.


[10] Id.


[11] Cassia Spohn, Race, Crime, and Punishment in the Twentieth and Twenty-First Centuries, 44 Crime & Just. 49, 92 (2015) (citing research studies from the seventies and nineties concerning the punishment of African Americans for murder and rape and the need for new research on noncapital sentencing for rape).


[12] Lawrence A. Greenfeld, Bureau of Just. Stat., Sex offenses and Offenders 10-21 (1997) (For rape convictions and sentences, 52.2% of the prison population surveyed was white and 43.7% was black. For sexual assault prisoners, 73.9% were white and 22.8% was black. For arrests of rape by race, 56% were white and 42% were black.).


[13] Id.


[14] Brian A. Reaves, Ph.D, Bureau of Just. Stat., Felony Defendants in Large Urban Counties, 2009 – Statistical Tables, 7-29 (2013).

[15] Kadence A. Otto, Report: Criminal Athletes: An Analysis of Charges, Reduced Charges, and Sentences, 19 J. Legal Aspects of Sport 67, 69-80 (2009).


[16] Id. at 79.


[17] Id. at 78.


[18] Cheryl Miller, Calif. Lawmakers, Citing Turner Case, Embrace Tougher Sex-Assault Penalties, Recorder (June 27, 2016), http://www.therecorder.com/id=1202761231655/Calif-Lawmakers-Citing-Turner-Case-Embrace-Tougher-SexAssault-Penalties?slreturn=20160816202208.


[19] Grinberg & Shoichet, supra note 1.


[20] U. S. v. Booker, 543 U.S. 220, 270 (2005); see Nat. St. Cent. St. Cts., State Sentencing Guidelines: Profiles and Continuum 5-27 (2008).


[21] Gary T. Lowenthal, ARTICLE: Mandatory Sentencing Laws: Undermining the Effectiveness of Determinate Sentencing Reform., 81 Calif. L. Rev. 61, 121-22 (1993).


[22] Id.


[23] See Nat. St. Cent. St. Cts., supra note 19.


[24] Izabelle Barraquiel Reyes, Student Scholarship: The Epidemic of Injustice in Rape Law: Mandatory Sentencing as a Partial Remedy, 12 UCLA Women’s L.J. 355, 375-76 (2003).


[25] See Id. at 377 (commenting on the recommendation of education in schools and the judicial system to understand the effects of rape); Lowenthal, supra note 20 (noting the availability of prosecutorial appeal to limit the abuse of judicial authority in sentencing); Jenna Greene, A Just Punishment in Stanford Sexual Assault Case?: Why We Need Judicial Elections, Recorder, June 13, 2016 , at 6 (discussing the removal of Turner sentencing judge from criminal cases and the need for judicial elections).


[26] AJ Willingham & Carma Hassan, Judge to Woman in Rape Case: ‘Why Couldn’t You Just Keep Your Knees Together?’, Cable News Network (Sept. 13, 2016), http://www.cnn.com/2016/09/12/world/robin-camp-rape-comments-trnd/.

Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors. By: Francisco Canales

Personae Non Gratae: Trump’s Immigration Ban And Its Predecessors.

By: Francisco Canales 

Donald J. Trump will likely go down in history as one of the most controversial presidential candidates in the United States—alongside Huey Long, George Wallace, and Pat J. Buchanan. Recently, Trump picked a fight with a war hero’s family—the Kahns.[1] This fight erupted from his facile plan to protect the United States from attacks carried out by radical Islamic terrorists. He proposed banning “all Muslims” from entering the United States, demonstrating an obvious disregard for peaceful and patriotic Muslims like the Kahns. [2] Trump’s bombastic rhetoric along with his ban proposal incited the Kahns and other Muslim-Americans to speak publicly against him.[3]

In light of Trump’s controversial proposal, this post seeks to analyze United States immigration policies—specifically targeting and banning a group from traveling or migrating to the United States on the basis of nationality, ethnicity, and ideology—that have been implemented.[4]

Where is Trump coming from?

Understanding the political environment of the Republican primary is important to understanding Trump’s rhetoric and immigration proposal. At the time Trump pronounced publicly his proposal, Trump was fighting to win his party’s nomination, and using such bombastic rhetoric galvanized his base to go out and vote for him. And he won the nomination by convincing margins.

As historian Dr. Stephen Schwab notes, the United States’ vulnerability to “successful penetrations and attacks by foreign adversaries” was shown by the “covert actions” of Arab terrorist on 9/11.[5] This vulnerability vividly illustrates the immense and continuous challenges to U.S. national security.[6] After 9/11, jihadist groups like ISIS and lone-wolf terrorists inspired by radical Islamism have continued to cause havoc in American communities.[7] On December 2015, a radical Muslim couple killed fourteen of their friends and acquaintances in St. Bernardino, California.[8] The evidence indicates, according to the FBI, that the wife and husband both pledged their allegiance to the Islamic State.[9] In response to the attack, Trump manifested his proposal to prevent future attacks on U.S. soil by “radical Islamic terrorism,”[10] calling for a temporary travel ban for all Muslims. Some of his fellow Republicans did criticize him for preying on people’s fears and fueling nativist rhetoric.[11]

Déjà vu?

But can Americans really tolerate the enforcement of immigration bans similar to Trump’s? History says, maybe. Several federal laws explicitly banning the travel and migration of groups coming from Asia and other regions have been implemented. Other bans have targeted groups for believing in ideologies that were unequivocally rejected by the majority of Americans.

Chinese Exclusion Act of 1882

The first infamous ban of Asian immigrants in American history is the Chinese Exclusion Act of 1882—federal legislation that explicitly suspended immigration for a specific nationality.[12] This basic exclusion law prohibited Chinese laborers—defined as “both skilled and unskilled laborers and Chinese employed in mining”—from entering the country.[13] The Act, however, specified that “Chinese persons other than laborers” were exempt from the exclusion.[14]  The passage of the Act represented the outcome of years of racial hostility and anti-immigrant agitation by white Americans.[15]

Subsequent amendments to the Act prevented Chinese laborers who had left the United States from returning. The Scott Act of 1888 prohibited immigration, for twenty years, of all Chinese subjects except officials, teachers, students, merchants, or tourists; persons fitting those categories were required to produce certificates from Chinese authorities, countersigned by American representatives.[16] In 1892, the Geary Act extended the system of Chinese Exclusion and required all Chinese to carry on their person a U.S. resident permit.[17]

The exclusion laws had significant impacts on Chinese immigrants coming to America and their communities.[18] Chinese immigrants were placed under a tremendous amount of government scrutiny and were often denied entry into the country on any possible grounds.[19] Chinese communities underwent dramatic changes as well. Families were forced apart, and businesses were closed down.[20] These effects are important to be underscored if Trump is serious about pushing such proposal; because like what happened at the end of the 19th century to the Asian communities in America, Muslims coming to America and their communities here will suffer the same consequences of such travel ban.

Immigration Act of 1924

As nativist sentiment spread, Congress expanded the system of national targeting of other immigrants, including those from Japan and Southern and Eastern Europe.[21] Beginning in 1920, a series of congressional hearings were held to identify problems that immigrants were causing the United States. Tabulations showing that certain immigrants, particularly those from Italy, Greece, and Eastern Europe, were significantly overrepresented in American prisons and institutions for the “feebleminded” were presented.[22] Further, compiled data suggested that these groups were contributing too many genetically and socially inferior people.[23] In 1923, the U.S. Secretary of Labor was sent to Europe to investigate the feasibility of a plan to interview prospective immigrants, similar to Trump’s extreme vetting plan, before embarking to the United States.[24]

The secretary’s testimony and the data presented before Congress ultimately led to a new immigration law in 1924. The Immigration Act of 1924, or Johnson–Reed Act, including the National Origins Act, and Asian Exclusion severely restricted the annual immigration of individuals from countries previously claimed to have contributed excessively to the dilution of American “good stock.”[25] This law primarily restricted immigration of Southern and Eastern Europeans and outright banned the immigration of Arabic and Asian groups.[26]

Immigration Acts of 1903 and 1918

The U.S. government traditionally has employed the immigration laws, particularly the provisions pertaining to the deportation and exclusion of aliens, to attack perceived threats to the domestic status quo. The assassination of President McKinley by a self-proclaimed anarchist and son of Polish immigrants, along with labor strife, culminated in congressional passage of a law in 1903.[27] The Act of 1903 targeted and excluded those from entering the country believed to be a threat to governmental institutions.[28]  It “reflected broader national concerns about radicals in the labor movement. A growing belief that the ‘new immigrants’ from Eastern and Central Europe held political values that threatened the existing social and political status quo helped fuel the attack on anarchism.”[29]

Building on the spirit of the 1903 Act and clarifying ambiguities tangled in the courts, Congress passed the 1918 Immigration Act.[30] The Anarchist Act of 1918 permitted the exclusion or deportation of “aliens who believe in or advocate the overthrow by force or violence of the Government of the United States or of all forms of law.”[31] The federal government employed these immigration law’s ideological provisions to promote domestic ends, deporting undesirables like labor leaders.[32] Similar to Trump’s arguments in support of his ban, these Acts sought to preserve the health of a free republic and the well-being of its people.

The evolution of Trump’s travel ban now in the general election

The U.S. Congress has endorsed several legitimate public policy rationales to enact travel or immigration bans—health and safety, morality,[33] and national security.[34] Veiled under these rationales, bans have dichotomously targeted members on the basis of race and ethnic composition. Now in the general election, the Trump campaign seems to be analyzing the nuances of this issue (Islamic terrorism), moving away from explicit discrimination.[35] Like Hillary Clinton’s current positions on key political issues, Trump’s travel ban has “evolved.”[36] In other words, he advocates now for a more sophisticated and robust process for vetting travelers coming from regions of the world known to have been influenced by radical Islam and an absolute ban for those coming from Syria.[37] This new version resembles immigration bans referenced in this post; it may be a correct step to protect our nation, but its xenophobic roots cannot be so easily plucked.

In conclusion, many have discounted Trump’s ban proposal as inconsequential, bombastic rhetoric. Others think that this ban is impossible to pass both chambers of Congress and be signed into law, and later implemented. But as history shows, the nativist sentiments of this country can make Trump’s proposed ban a reality. Thus, it is important for all—conservatives, liberals, libertarians, and independents—to vigorously question potential laws that wall-off our allies, especially if they endeavor to protect our freedoms and values.

[1] See Eliza Collins, The Trump-Kahn feud: How we got here, usa today (Aug. 2, 2016), http://www.usatoday.com/story/news/politics/onpolitics/2016/08/01/trump-khan-feud-timeline/87914108/.

[2] See Russell Berman, Donald Trump’s Call to Ban Muslim Immigrants, The atlantic (Dec. 7, 2016), http://www.theatlantic.com/politics/archive/2015/12/donald-trumps-call-to-ban-muslim-immigrants/419298/.

[3] See Aziz Ansari, Aziz Ansari: Why Trump Makes Me Scared for My Family, n.y. times (June 24, 2016), http://www.nytimes.com/2016/06/26/opinion/sunday/aziz-ansari-why-trump-makes-me-scared-for-my-family.html?_r=0.

[4] It is important to note at the outset, however, the author does not support Trump’s temporary travel ban.  One can reasonably foresee that if implemented, the negative consequences from it to our financial system will be great, decimating international trade. It will hurt public and private organizations that have Muslim members traveling to the US. This travel ban will blemish the United States’s posture in the world and likely dismantle the comity shared between the United States and other countries, including European countries like France, which has a significant Muslim population. Additionally, such a policy will harm our relationships with our friends living in Muslim communities across the United States. Equally important, as Mr. Kahn punctually suggested, this ban maybe in violation of our nation’s most important founding document, The United States Constitution. However, historically, the U.S. Supreme Court has taken a hands-off approach when asked to review the Congress’s immigration decisions and policymaking under the plenary power doctrine. Mathews v. Diaz, 426 U.S. 67, 81 (1976).

[5] Stephen Irving Schwab, Sabotage at Black Tom Island: A Wake-Up Call for America, 25 international journal of intelligence and counterintelligence 367, 368 (2012).

[6] Id. at 388.

[7]See, e.g., Everything we know about the San Bernardino terror attack investigation so far, La times (December 14, 2015), http://www.latimes.com/local/california/la-me-san-bernardino-shooting-terror-investigation-htmlstory.html; Ralph Ellis et al., Orlando shooting: 49 killed, shooter pledged ISIS allegiance, cable news network (June 13, 2016), http://www.cnn.com/2016/06/12/us/orlando-nightclub-shooting/; Michael Ray, Boston Marathon bombing of 2013, Encyclopedia britannica (last updated May 17, 2016), https://www.britannica.com/event/Boston-Marathon-bombing-of-2013.

[8] Everything we know about the San Bernardino terror attack investigation so far, supra note 8.

[9] Id.

[10] Berman, supra  note 2.

[11] Callum Borchers, The media loved Marco Rubio’s defense of Islam. GOP voters? Probably not so much, wash. post, https://www.washingtonpost.com/news/the-fix/wp/2016/03/11/the-media-loved-marco-rubios-defense-of-islam-gop-voters-probably-not-so-much/.

[12] Chinese Exclusion Act, ch. 126, 22 Stat. 58 (1882), repealed by Chinese Exclusion Repeal Act of 1943, ch. 344, 57 Stat. 600. See, e.g., Separate Lives, Broken Dreams: Chinese Exclusion Era Case Files of the National Archives and Records Administration, Immigration Documents (stating that “in 1882, with a stroke of President Chester Arthur’s pen, the Chinese Exclusion Act became the first race-based immigration law in U.S. history”).

[13] Chinese Exclusion Act, ch. 126, 22 Stat. 58.

[14] Chinese Exclusion Act 6, 22 Stat. at 60.

[15] Yuning Wu, Chinese Exclusion Actbritannica academic (Nov. 13, 2013), http://academic.eb.com.libdata.lib.ua.edu/levels/collegiate/article/605479#.

[16] See Leti Volpp, Divesting Citizenship: On Asian American History and the Loss of Citizenship Through Marriage, 53 UCLA L. Rev. 405, 468 n. 295 (2005).

[17] Act of May 5, 1892 (Geary Act), ch. 60, 1, 6-8, 27 Stat. 25, 25-26 (repealed 1943). Numerous other acts were passed during this time that further restricted Chinese immigration. See Act of July 5, 1884, ch. 220, 23 Stat. 115 (repealed 1943) (amending and tightening restrictions in the Chinese Exclusion Act); Act of Oct. 1, 1888 (Chinese Exclusion Act), ch. 1064, 25 Stat. 504 (repealed 1943) (same); Act of Nov. 3, 1893 (McCreary Act), ch. 14, 1-2, 28 Stat. 7, 7-8 (repealed 1943) (requiring certification of residency for Chinese laborers, and defining “laborer” to include skilled and unskilled immigrants); Act  of Aug. 18, 1894, ch. 301, 28 Stat. 372, 390 (granting customs officers final authority to exclude Chinese  “unless reversed on appeal by the Secretary of the Treasury”).

[18] See Louis Henkin, The Constitution and United States Sovereignty: A Century of Chinese Exclusion and Its Progeny, 100 Harv. L. Rev. 853, 859 (1987) (stating that “the Chinese Exclusion doctrine and its extensions have permitted, and perhaps encouraged, paranoia, xenophobia, and racism, particularly during periods of international tension.”).

[19] Wu, supra note 17.


[21] See Act of Feb. 5, 1917 (Immigration Act of 1917), ch. 29, 2, 29 Stat. 874, 876 (repealed 1952) (restricting Asian immigration); Act of May 19, 1921 (Quota Act (Three Per Cent Act)), ch. 8, 2, 42 Stat. 5, 5 (repealed 1952) (establishing the three percent immigration quota limit); Act of May 26, 1924 (Immigration Act of 1924), ch. 190, 11, 43 Stat. 153, 159 (repealed 1952) (reducing the quota to two percent).

[22]  P.K.W, Eugenicsbritannica academic (May 10, 2016), http://academic.eb.com.libdata.lib.ua.edu/levels/collegiate/article/33201#259727.toc.

[23] Id.

[24] Id.

[25] Id. (Pub.L. 68–139, 43 Stat. 153, enacted May 26, 1924).

[26] See Id.

[27] See Select Comm’n on Immigr. and Refugee Pol’y, Staff Rep.: U.S. Immigration Policy and the National Interest 732 (1981) (linking passage of Immigration Act of 1903 to assassination of President McKinley).

[28] Immigration Act of March 3, 1903, ch. 1012, 2, 32 Stat. 1213, 1214, repealed by Immigration Act of February 5, 1917, ch. 29, 38, 39 Stat. 874, 897.

[29] John A. Scanlan, Aliens in the Marketplace of Ideas: The Government, the Academy, and the McCarran-Walter Act, 66 Tex. L. Rev. 1481, 1493 (1988).

[30] Anarchist Act of October 16, 1918, ch. 186, 40 Stat. 1012, amended by 8 U.S.C. 137 (1925-26) (repealed 1952).

[31] Id.

[32] See, e.g., Jay v. Boyd, 351 U.S. 345, 348 (1956) (permitting Attorney General to deport 65-year-old noncitizen who entered United States in 1921); Galvan v. Press, 347 U.S. 522, 523, 531-32 (1954) (upholding deportation of man who had lived in United States since 1918); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 208 (1953) (refusing re-entry into country of lawful permanent resident who had lived in United States for 25 years).

[33] Act of Mar. 3, 1875 (Page Law), ch. 141, 18 Stat. 477, 477.

[34] See 40 Stat. 1012; see also Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132 (Apr. 24, 1996), reprinted in 1996 U.S.C.C.A.N. (110 Stat. 1214).

[35] Jeremy Diamond, Trump on latest iteration of Muslim ban: ‘You could say it’s an expansion,’ Cable news network (July 24, 2016), http://www.cnn.com/2016/07/24/politics/donald-trump-muslim-ban-election-2016/ (“I’m looking now at territory. People were so upset when I used the word Muslim. Oh, you can’t use the word Muslim. Remember this. And I’m OK with that, because I’m talking territory instead of Muslim.”)

[36] See How Donald Trump’s Plan to Ban Muslims Has Evolved, fortune (June 28, 2016), http://fortune.com/2016/06/28/donald-trump-muslim-ban/; see also Scott Detrow, Trump Calls to Ban Immigration from countries With ‘Proven History Of Terrorism, nat’l pub. radio (June 13, 2016), http://www.npr.org/2016/06/13/481910989/trump-expands-immigration-ban-to-countries-with-proven-history-of-terrorism (Trump “is currently hedging on whether his plan to ban all Muslim travel, a signature campaign proposal that is still on his website, remains his current position.”).

[37]Alex Pappas, TEXT: Donald Trump’s Speech in Phoenix On Illegal Immigration, Daily caller (Aug. 31, 2016), http://dailycaller.com/2016/08/31/text-donald-trumps-speech-in-phoenix-on-illegal-immigration/.

Preservation of political rights: The need to end permanent disenfranchisement of felons By: Nikki Skolnekovich

Preservation of political rights: The need to end permanent disenfranchisement of felons

By: Nikki Skolnekovich

“If voting changed anything, they’d make it illegal.”[1] This quote sums up the circumstances of millions of Americans who are banned from voting due to a felony conviction. The value of the right to vote was best captured by the Supreme Court stating, “[t]he political franchise of voting [is] a fundamental political right,” which exercised “in a free and unimpaired manner is preservative of other basic civil and political rights.”[2] Despite the importance of the right to vote to the operation of the democratic process in our country, millions of American citizens are permanently and categorically disenfranchised due to criminal convictions.[3] In many states, individuals with felony convictions face life-time voting bans, even after completing their term of incarceration and any post-release requirements of probation or parole.[4] In nine states, including Virginia, individuals with felony convictions are permanently disenfranchised and their right to vote may only be restored by court or Governor’s action.[5] Recently, Governor McAuliffe restored the right to vote to “approximately 206,000 Virginians who had been convicted of a felony but who had completed their sentences of incarceration and any periods of supervised release, including probation and parole.”[6] The Virginia Supreme Court found Governor McAuliffe’s blanket restoration of civil rights “to an entire class of unnamed felons without regard for the nature of the crimes or any other individual circumstances” to violate the Article V, Section 12 of the Virginia Constitution, which requires “the Governor communicate to the General Assembly the ‘particulars of every case’ and state his ‘reasons’ for each pardon.”[7] This case demonstrates the impossibility of restoring voting rights in states that impose life-time disenfranchisement on individuals with felony convictions. Permanent disenfranchisement of felons degrades the right to vote by providing inferior protection of the right, disqualifying large numbers of individuals from voting, and disproportionately affecting African American individuals.  States should take action to eliminate life-time voting bans.

Nationwide, millions of individuals are disenfranchised due to a felony conviction.[8] The extreme number of individuals facing disenfranchisement is counter to the democratic values and strides made for voting rights and a government of the people. “The fact that most states view people who have served time in prison as beyond the protection of bedrock, democratic principle of the right to vote shows how terribly short this country has fallen from achieving its ideals.”[9]

Beyond the sheer number of individuals disenfranchised by these statutes, the racial impact cannot be ignored. Virginia’s permanent disenfranchisement of 7.34% of the voting eligible population, resulting in “more than one in five African Americans [being] disenfranchised” is reminiscent of other policies that threatened the right to vote, such as poll taxes and literacy tests.[10] Discussing felon disenfranchisement, Brent Staples states that “statutes that allowed correctional systems to arbitrarily and permanently strip large numbers of people of the right to vote were a particularly potent tool in the campaign to undercut African-American political power.”[11] States, such as Virginia, must take action to end unreasonable and permanent disenfranchisement of individuals with felony convictions. The Virginia legislature fought the blanket restoration of civil rights to hundreds of thousands of individuals with felony convictions because of a lack of “specificity” and consideration of the “particulars of every case,” yet imposes a blanket disenfranchisement on those with felony convictions, with no consideration of the “particulars of every case.”[12] The right to vote, which when exercised in a  “free and unimpaired manner is preservative of other basic civil and political rights,”[13] should not be categorically and permanently denied to individuals, disproportionality of minority populations, who have served their sentence and paid their debt to society.

Finally, disenfranchisement of individuals with felony convictions does not provide protection for that right proportionate to the significance and impact of the right to vote. The right to vote, given its integral part in our democratic process, should be protected on the same level as other rights, such as the freedom of speech. Many qualifications, such as “literacy, or long residency in a community, or ability to prove identity, or lack of a criminal past” would likely not be “allowed to restrict free speech, or freedom from ‘unreasonable’ searches, or the right to counsel.”[14] With most constitutional rights, only restrictions that are “necessary to promote a compelling governmental interest” will be tolerated.[15] Similarly, life-time disenfranchisement of individuals with felony convictions should not be lightly or categorically imposed. The importance of the right to vote demands limited restrictions and only those with an important governmental interest.

As Governor McAuliffe stated in the wake of the reversal of his executive order restoring voting rights to hundreds of thousands of Virginians, “The struggle for civil rights has always been a long and difficult one, but the fight goes on.”[16] It is imperative that states take action to end the disenfranchisement of individuals with felony convictions.


[1] Kevin Robillard, Ten Great Quotes About Voting, Politico (Nov. 1, 2012), http://www.politico.com/gallery/10-great-quotes-about-voting?slide=8 (quoting anarchist Emma Goldman to which this quotation is commonly attributed).

[2] Harper v. Virginia State Bd. of Elections, 383 U.S. 663, 667 (1966) (internal citations omitted).

[3] Christopher Uggen et al., State-Level Estimates of Felon Disenfranchisement in the United States, 2010, The Sentencing Project (July 2012), at 16, http://www.sentencingproject.org/wp-content/uploads/2016/01/State-Level-Estimates-of-Felon-Disenfranchisement-in-the-United-States-2010.pdf (estimating that in 2010, 5,852,180 people had lost the right to vote due to a felony conviction).

[4] Felon Voting Rights, National Conference of State Legislatures (April 25, 2016),  http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx.

[5] Id.

[6] Howell v. McAuliffe, 788 S.E.2d 706, 710 (Va. 2016).

[7] Id. at 719.

[8] Uggen supra note 3, at 2.

[9] Brent Staples, The Racist Origins of Felon Disenfranchisement, N.Y. Times (Nov. 18, 2014) http://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html?_r=0.

[10] Uggen, supra note 3, at 2.

[11] Staples, supra note 9.

[12] Howell, 788 S.E.2d at 719.

[13] Harper, 383 U.S. at 667.

[14] Garrett Epps, What Does the Constitution Actually Say About Voting Rights?, The Atlantic (Aug. 19, 2013), http://www.theatlantic.com/national/archive/2013/08/what-does-the-constitution-actually-say-about-voting-rights/278782/.

[15] San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 56 (1973).

[16] Fenit Nirappil & Jenna Portnoy, Va. High Court Invalidates McAuliffe’s Order Restoring Felon Voting Rights, Wash. Post (Jul. 22, 2016), https://www.washingtonpost.com/local/virginia-politics/virginia-court-invalidates-gov-terry-mcauliffes-order-restoring-felon-voting-rights/2016/07/22/3e1d45f6-5058-11e6-a7d8-13d06b37f256_story.html.

Tidal Wave: On-Demand Music Streaming is Displacing Physical Album Sales By: Devan Byrd

Tidal Wave:  On-Demand Music Streaming is Displacing Physical Album Sales

By: Devan Byrd

The technology of the day has everything to do with the tidal wave of change that is revolutionizing the music industry through the way music listeners access artists’ music.  On-demand streaming services like Spotify, Pandora, Tidal, and Apple Music are fighting for the ears—and money—of music lovers.[1]  Customers pay a subscription and in exchange they have unlimited access to a vast chunk of all the music ever recorded.  Accordingly, the music industry has responded to music listeners’ trend toward streaming services by altering artists’ delivery. Giving rise to artist exclusives through on-demand streaming services as a path to market share.[2]  On demand streaming services do not pay musicians royalties for the streaming of their music.  A seemingly essential part of promoting fairness and reestablishing the value of music and what is noticeably absent in the current streaming environment, according to conventional wisdom, is that artist do not make enough money when their songs are streamed.[3]  Like enthusiasts of movies and television series who may pay for a combination of subscriptions to Netflix, Amazon Prime, and Hulu, all of these exclusives will present a similar dilemma to music fans who want to listen to a variety of artists, many of which stream exclusively on competing subscription-based streaming services.  In fact, in addition to the added cost to music listeners, it takes little imagination to forecast the potential impact that artist exclusives through subscription-based streaming services may have on music production.  One would simply need to look to the subscription-based movie and television series services, who are now producing their own exclusive content.

Once upon a time, an artist actually had to sell albums to earn awards and recognition from the Recording Industry Association of America (RIAA).[4]  Today, there are over 7.7 million paying subscribers in the American streaming marketplace.[5]  As if that was not enough evidence of the transformation that is occurring in the music industry, take Tidal for example, the only artist owned streaming service, recently sparking music fans interest in the service with exclusively of two extremely popular albums:  Anti and The Life of Pablo.[6]  Although, popular among the artists’ fans the place of the two albums in the music industry’s official historical record present two stark and contrasting side-effects of on-demand streaming exclusives.

First take Rihanna’s latest album, Anti, which was initially exclusively available through Tidal and reached platinum status less than two days after it was released.  However, the way Anti achieved platinum status was not through Tidal.  Instead, Anti reached platinum status through the one million free downloads that were part of a reportedly $25 million deal the artist signed last year with Samsung.[7]  And Tidal has sold another half million downloads of Rihanna’s album.[8]  In addition to reaching platinum status Rihanna’s song “Work,” featuring Drake, which appears on her latest album, Anti, was featured at No. 1 on the Billboard Hot 100.[9]

Like Rihanna, Kanye West’s album The Life of Pablo, which was initially released on Tidal, is currently at the epicenter of cultural conversations.[10]  And subscriptions to the on-demand streaming service have reportedly surged since the album’s release.[11]  But unlike Rihanna’s Anti, The Life of Pablo is notably absent from the music industry’s official historical record.[12]  The album is not charting because Tidal does not report its streams to Nielsen Music, the company that determines the Billboard charts, and it has not been certified gold or platinum by the RIAA.

In an effort to resolve this charting dilemma Nielsen Music recently decided to expand its calculations to include additional platforms actually used by fans to listen to music.  Thus, these days, Nielsen Music tracks sales in all formats—downloads, CDs, and vinyl—as well as streams from on-demand streaming services, video views on platforms like YouTube, and radio streams both online and on terrestrial radio.[13] And employs a proprietary algorithm that incorporates these various avenues available to access music into Nielsen Music’s charting formula.[14]  Under this improved algorithm, theoretically, if an artist’s single were streamed 1.5 billion times on YouTube, the whole album could be certified platinum.[15]

However, when on-demand streaming services like Apple Music and Spotify do not report the replay data to Nielsen Music it is unable to track the streams.  Take for example Drake’s inescapable “Hotline Bling” video, which Apple Music exclusively featured—a strategy that backfired, because Apple does not report its video streams to Nielsen Music, so there was no chance of the song getting Drake to his goal of being No.1.[16]  This is just another example of the ramifications of artist exclusives, and serves as a cautionary tale for all artists:  The streaming platform you choose through exclusive content just might decide your chart fate.[17]

In addition to exclusive, on-demand streaming services provide artists with a new avenue to deliver recorded music directly to fans.  For example, just last week Kendrick Lamar unexpectedly released untiled unmastered. on Spotify.[18]  An eight track project that is notable for its brevity, in-progress aesthetic, and suggestive of the tidal wave that is altering the environment of the music industry.[19]  By allowing artists to provide their fans with direct access to artists’ exercise of musical genius.  The following morning, untitled unmastered. was available on numerous music streaming platforms, including Apple Music and Tidal.[20]  And Lamar’s fans will find that found that a lot of this material was familiar, because the artist already performed certain tracks on shows like The Colbert Report and The Tonight Show with Jimmy Fallon.[21]

Almost a year ago, a conglomerate of ultra-famous musicians—Jay Z, Beyoncé, Rihanna, Kanye West, Arcade Fire, Coldplay, Nicki Minaj, Alicia Keys, Jason Aldean, Madonna, Jack White, Calvin Harris, Daft Punk, Deadmau5, J.Cole, and Usher—joined forces and purchased the music-streaming service Tidal.[22]  The idea: to raise awareness and support for the music industry by re-establishing the value of music.  These artists believe that technology companies who began on-demand streaming services have become more important than musicians when it comes to song distribution.  Thus, this on-demand streaming service placing musicians in charge—at least nominally of the company—which will have a great but perhaps intangible effect that makes the service better than other streaming services.  If artists are actually able to realize higher payouts from Tidal, the company may start a revolution.  However, the revolution has not yet occurred because Tidal lags way behind its competitors with just over one million subscribers.[23]  By contrast, Tidal’s competitors Spotify has more than 75 million users, including 20 million paying subscribers, and Apple Music has about 11 million.[24]

Additionally, the artist-partners forcing this potential revolt do not exactly look like they have been handed a bad deal by the current music landscape.  In fact, these artists’ work and public presentation have often emphasized just how much cash they make every day.  Thus, it seems that music-industry justice is needed, it is needed for new and niche artists.  It is possible that Tidal will be able to provide this justice, but it is equally as possible that they will find that the justice that come with this new platform is perhaps intangible.

The music industry is in a stage of growth and adaptation.  It is unclear how the artists will reclaim control over fair compensation for music listener’s accessing artists’.   However, one thing is for sure, a tidal wave of technology has permanently altered the fabric of the music industry.  And the wave’s impact is being felt by both artists and music listeners.

[1] Sam Sanders, Jay Z’s Music Service, Tidal, Arrives With A Splash, And Questions Follow NPR (Apr. 1, 2015) http://www.npr.org/sections/therecord/2015/03/31/396634244/jay-zs-music-service-tidal-arrives-with-a-splash-and-questions-follow.

[2] Id. See also Spencer Kornhaber, Tidal:  Long Live mIllionaire Musicians The Atlantic (Mar. 30, 2015) http://www.theatlantic.com/entertainment/archive/2015/03/tidal-viva-la-millionaire-musicians/389120/.

[3] Anastasia Tsioulcas, Is Tidal Changing How Fans Talk About Music? NPR (Mar. 1, 2016)  http://www.npr.org/sections/therecord/2016/02/29/468558863/is-tidal-changing-how-fans-talk-about-music.

[4] Anastasia Tsioulcas, Forget Selling Albums—Artists Can Now Go Platinum Via Streaming NPR (Feb. 2, 2016) http://www.npr.org/sections/therecord/2016/02/01/465178626/forget-selling-albums-artists-can-now-go-platinum-via-streaming (RIAA determines whether an album goes platinum or gold.).

[5] Tony Gervino & Andrew Hampp, Jay Z on Competing With Jimmy lovine: ‘I don’t Have To Lose … For You Guys To Win’ Billboard (Mar. 30, 2015) http://www.billboard.com/articles/business/6516945/jay-z-jimmy-iovine-streaming-tidal.

[6] Tsioulcas, supra note 3.

[7] Spencer Kornhaber, Rihanna’s Anti Capitalism The Atlantic (Jan. 29, 2016) http://www.theatlantic.com/entertainment/archive/2016/01/anti-capitalism/435411/.

[8] Tsioulcas, supra note 4.

[9] Tsioulcas, supra note 5.

[10] Id.

[11] Id. See also Charlotte Hassan, Kanye May Have Single-Handedly Doubled Tidal’s Subscribers … Digital Music News (Feb. 24, 2016) http://www.digitalmusicnews.com/2016/02/24/tidal-subscriber-numbers-surge-after-exclusively-releasing-kanyes-album/ (Although the official number of Tidal subscribers have not been released yet, the number of subscribers is rumored to have increased from around one million to two and a half million.).

[12] Tsioulcas supra note 5.

[13] Tsioulcas supra note 3.

[14] Id. (Under Nielsen Music’s modified algorithm, 1,000 streams are now the official equivalent of ten single track sales or one album sale.  Gold status are awarded after the equivalent of 500,000 sales, and platinum on 1 million sales.).

[15] Id.

[16] Id. (“Take for example Drake’s inescapable “Hotline Bling.”  Last fall, when the video for “Hotline Bling” was released, Drake was saying how much he was thirsting for a No. 1 on the Billboard Hot 100.  He wrote about his desire very publicly.”). See also Anastasia Tsioulcas, Drakes’s ‘Hotiline Bling’ Aims At No. 1, And Misses. Why? NPR (Oct. 27, 2015) http://www.npr.org/sections/therecord/2015/10/27/452248402/drakes-hotline-bling-aims-at-no-1-and-misses-why.

[17] Tscioulcas, surpa note 15.

[18] Anastasia Tsioulcas, There’s A New Kendrick Lamar Project Out, But It May Sound Familiar Already NPR (Mar. 5, 2016) http://www.npr.org/sections/therecord/2016/03/04/469172187/theres-a-new-kendrick-lamar-project-out-but-it-may-sound-familiar-already.

[19] Id. (unsurprisingly each track is titled:  untitled, followed by a date)

[20] Id.

[21] Id. (including the live performance done with the show’s bands)

[22] Tscioulcas, supra note 4 (Artist-partners signed a “declaration” of co-ownership for a reported three percent equity in the company.). See also Gervino & Hampp, supra note 5 (With the remaining stakes reportedly owned by Jay Z, another investor, and the record labels.).

[23] Tsioulcas, supra note 4.

[24] Id.

Eroding the right to exclude in Alabama by Elton Darby

Eroding the right to exclude in Alabama


Elton Darby

On March 31, 2011, Jason Dean Tulley entered the First Educators Credit Union in Jacksonville, Alabama.[1] Tulley carried a pistol in an unconcealed hip holster on his belt.[2] James Clayton, an off-duty police officer working as a security guard, approached Tulley and requested Tulley return the pistol to his car.[3] After a brief argument, Tulley returned the pistol to his vehicle.[4] Tulley was later arrested and charged with “carrying a pistol on premises not his own” under Ala. Code 13A-11-52.The Jacksonville Municipal Court convicted Tulley, and the Alabama Court of Criminal Appeals affirmed. [5] In Ex parte Tulley, the Alabama Supreme Court reversed.[6] The Court held that Tulley’s due process rights had been violated and that 13-A-11-52 was “facially unconstitutional” because it did not list a penalty for violation of the statute.[7] Ex parte Tulley represents a breakthrough for gun owners. Notwithstanding property owners’ objections, gun owners like Tulley, even if they do not have a permit, can carry a gun nearly anywhere they wish. The objections of private property owners now take a backseat to the desire for unrestricted gun rights. Whether property owners operate fireworks stands, churches, or credit unions, the reality in Alabama is clear: they cannot exclude firearms from their property.

This blog discusses Alabama’s erosion of the property owners’ right to exclude. It does not seek to argue against the fundamental right to keep and bear arms. Rather, it urges Alabama to join states like Texas in balancing, rather than steamrolling, fundamental property rights with unlimited second amendment values.

Americans have a fundamental right to keep and bear firearms.[8] In all fifty states, persons may become authorized to carry a concealed firearm.[9] States employ a diverse array of regulatory schemes to for the issuance of concealed carry permits. The least restrictive are “constitutional carry” states. In these states, no state-issued permit is required to carry a concealed weapon.[10] Weapons can be purchased without restriction, and carried to any place in any manner. On the other end are states like California, which require background checks and waiting periods to even obtain a gun.[11] Alabama, along with the majority of states, provide that the state “shall issue” a concealed weapons permit to persons who meet the statutory requirements.[12] The prevalence of concealed carry legislation makes clear that many states wish for the public to be able to carry their guns outside the home. But may they do so against the wishes of private property owners?

When the destination is work, many states answer Yes. Parking lot laws, enacted by Alabama and a number of other states, provide that employers may not prohibit employees from keeping legal firearms in their vehicles while at work.[13] There are a few exceptions, such as when the firearm is illegal, or the employer has reason to believe the employee will cause bodily harm to others. Parking lot laws have been the subject of much controversy. Proponents argue the laws further the Second Amendment’s “central component” of self-defense.[14] Opponents have claimed, amongst other things, that the laws represent an unconstitutional taking and that the laws violate substantive due process rights related to property.[15]

When the destination isn’t work, the states are split. If the First Educators Credit Union in Ex parte Tulley were located in Texas, a state not commonly regarded in opposition to gun rights, Tulley could be criminally liable for trespass.[16] Private property owners in Texas may prohibit the presence of guns on their property so long as they comply with a posting requirement. The posting requirement allows property owners wishing to exclude firearms from their property to post a sign providing clear indication that the owner prohibits firearms on the property.[17] Concealed carry permit holders who disregard a proper posting are guilty of a misdemeanor. [18] In contrast, Alabama offers only five narrow exceptions to the general rule that persons may carry a gun on the property of anyone.[19] These exceptions do not include places of worship, places where alcohol is served, or child care centers.

The wide-open nature of Alabama law regarding firearms on the property of another disregards the traditional rights of property owners to exclude. In essence, Alabama law completely disregards the nature of an owner’s use of the property, and whether that use might not comport with the public’s possession of deadly weapons. It isn’t difficult to understand why financial institutions like First Educators might wish to prevent guns in their branches. Alabama, however, has removed First Educators ability to decide. No matter the degree of harm that could be imposed by the presence of deadly weapons, First Educators cannot prevent their presence unless it falls into one of the narrow exceptions. This is striking in a world where persons can be removed from private property almost any reason. Persons are commonly removed from property for harmless activities such as remaining at a bar past closing time, or even speaking out at a presidential rally.[20] Alabama has already forced employers to permit weapons in employee’s vehicles. Disallowing property owners a choice to permit firearms further reduces their control of business operations by eroding away their fundamental property right to exclude.

Mr. Tulley infringed upon First Educators’ right to exclude him from it’s private property, yet he emerged unscathed. To prevent similar infringements in the future, Alabama should join Texas in enacting a posting requirement for the prohibition of guns on private property. As discussed, the posting requirement would allow businesses like First Educators to be able to enforce a firearm prohibition backed by the force of law. Such a provision adequately respects the coexistence of two titanic rights in American law. The Supreme Court has termed the right to exclude the most important stick in the of the bundle of property rights.[21] It’s time for Alabama to give that stick back to business owners.






[1] Ex parte Tulley, ___ So.3d ____, No. 1140049, 2015 WL 5192182 (Ala. Sept. 4, 2015) at *3.

[2] Id; In this article I discuss a property owner’s right to exclude those who possess a “concealed carry” firearm permit. Tulley, however, apparently partook in “open carry” – the open display of a pistol without a permit.

[3] Id.

[4] Id.

[5] Id. at *3-4.

[6] Id. at *10.

[7] Id.

[8] See U.S. Const. amend II; District of Columbia v. Heller, 554 U.S. 570, 595 (2008).

[9] As referred to in this blog, a concealed weapons permit allows a person to carry a concealed pistol on their person. See Ciara McCarthy, Concealed Carry is Now Legal in All Fifty States, Slate,http://www.slate.com/blogs/crime/2013/07/11/illinois_concealed_carry_carrying_guns_in_public_is_legal_in_all_50_states.html (last visited Mar. 8, 2016).

[10] See Eric Benson, Vermont’s Long, Strange Trip to Gun-Rights Paradise, The Trace, (discussing how Vermont is the only state which does not have, and has never had, a firearm permit requirement) http://www.thetrace.org/2015/07/vermont-gun-rights-constitutional-carry/ (last visited Mar. 8, 2016).

[11] Amber Phillips, California has the nation’s strictest gun laws, Washington Post, https://www.washingtonpost.com/news/the-fix/wp/2015/12/04/california-has-the-nations-strictest-gun-laws-here-are-the-other-strictest-and-loosest-states/ (last visited Mar. 8, 2016).

[12] Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[13] See e.g., Ala. Code § 13A-11-65 (West through 2016 Reg. Sess).

[14] Ethan T. Stowell, Note, Top Gun: The Second Amendment, Self-Defense, and Private Property Exclusion, 26 Regent U. L. Rev. 521, 541 (2014).

[15] J. Blake Patton, Note, Pro-Gun Property Regulation: How the State of Oklahoma Controls the Property Rights of Employers Through Firearm Legislation, 64 Okla. L. Rev. 81, 99-102 (2011) (critiquing the Tenth Circuit’s reasoning in upholding an Oklahoma parking lot law in Ramsey Winch Inc. v. Henry); Also See Ramsey Winch Inc. v. Henry, 555 F.3d 1199, 1211 (10th Cir. 2009).

[16] Tex. Penal Code Ann. § 30.06 (West through end of 2015 Reg. Sess.).

[17] Id.

[18] Id.

[19] Guns are prohibited inside five categories of facilities in Alabama. These are (1) police facilities (2) corrections facilities (3) mental health facilities (4) public or private school or university athletic event not related to firearms (5) professional athletic event not related to firearms. See Ala. Code. 13A-11-61 (West through Act 2016-54 of 2016 Reg. Sess.)

[20] Jeremy Diamond, Silently protesting Muslim woman ejected from Trump rally, Cable News Network, http://www.cnn.com/2016/01/08/politics/donald-trump-muslim-woman-protesting-ejected/ (last visited Mar. 8, 2016).

[21] Kaiser Aetna v. United States, 444 U.S. 164, 176 (1979).

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People by Carly Calhoun

I’m Sorry, Sir, We Will Not Perform Your Hysterectomy: Religious Hospitals’ Refusal to Treat Trans* People


Carly Calhoun


In 2015, a transwoman sought surgical care prescribed by her doctor to ameliorate complications of a breast augmentation she underwent years’ prior.[1] The hospital refused to allow the surgery despite coverage from her insurance provider.[2] At first the hospital said it “does not have a policy on assisting with gender transition,” but after rumors came out that the policy was due to “conservative Catholic officials affiliated with [the hospital],” it referenced the fact that as a Catholic hospital it must adhere to the Ethical and Religious Directives of the Catholic Church (ERDs).[3] While religious hospitals and care providers are not the only places trans people experience discrimination in healthcare,[4] these facilities continue to cite religious freedom to violate numerous laws including the Affordable Care Act (ACA).

Many of these hospitals allow cisgender people to receive procedures denied to trans people. For example, a transwoman called the above hospital in question to get a consultation on breast augmentation and was told they accepted new patients, but when they learned she was trans they denied her an appointment.[5] The World Professional Association for Transgender Health (WPATH) recognizes that gender affirming surgeries constitute “medically necessary care” under most insurance plans.[6] It would logically follow that both surgeries for ciswomen and transwomen should be allowed in all hospitals. This is not necessarily the case.

Only seventeen states have public accommodations laws prohibiting discrimination based on gender identity,[7] while only fourteen states specifically prohibit medical providers from discriminating based on gender identity.[8] Fortunately, the Affordable Care Act (ACA) bans discrimination in certain healthcare services on the same bases as those prohibited under other federal civil rights legislation.[9] Under section 1557 of the ACA, healthcare providers receiving federal subsidies, credits, or contracts of insurance shall not discriminate “on the basis of race, color, national origin, sex, disability, or age.”[10] And HHS’s Office for Civil Rights (OCR) which enforces the ACA, proposed new rules barring discrimination based on gender identity specifically (even though it already enforces the rules against those discriminating against trans people “based on sex”).[11] Many Catholic hospitals receive Medicare or Medicaid reimbursement and other federal subsidies, therefore falling under this antidiscrimination provision of the ACA. In Rumble v. Fairview Health Services, the federal district court of Minnesota held that a hospital was subject to the ACA’s antidiscrimination provision when it mistreated a young transman because it received federal funding through Medicare and Medicaid contracts.[12] This is consistent with other federal court decisions based on discrimination under title VI and section 504 of the Rehabilitation act that Medicare and Medicaid funds constitute federal financial assistance.[13]

Unfortunately, religious hospitals argue that allowing performance of certain procedures on trans people violates their First Amendment right to freedom of religion.[14] To what extent the federal Religious Freedom Reformation Act (RFRA) allows an exception to this discrimination is unclear. But the ACA’s text only provides a “conscience” exemption for abortions[15] and the Hobby Lobby decision applies to birth control coverage from employers.[16] Neither of these rules seem to apply to a hospital’s refusal to perform surgeries on one population that it will not perform on another, which is what section 1557 prohibits.[17] But the fact that a great (and growing) number of hospitals in the U.S. are run by or affiliated with the Catholic church amplifies this issue, [18] especially when the only accessible care is at a private religious hospital.[19] Unfortunately, to prove that a private hospital is “quasi-public” institution acting under the color of the state is very hard[20] and actions against private hospitals in this regard may easily fail.[21]

These hospitals and systems not only deny life affirming surgeries, but considering the rate of suicide and violence against trans people,[22] they deny life-saving surgeries. Trans people have better health outcomes when they feel more comfortable in their own skin.[23] Further, many states require some form of surgery in order for a person to correct the gender marker on their state identification documents.[24] When many trans people do not need surgery to “pass” as the gender with which they identify, it causes confusion and many times harassment or worse from others who do not understand why the gender marker on his or her ID does not match the person with whom they are interacting. Not all trans people want or need gender affirming surgery, but a hospital should respect the decisions of doctors and even health insurance companies that deem some surgeries as medically necessary for certain individuals. Freedom of religion must only be allowed to go as far as private activity. By participating in the market and offering services to the public, these religious hospitals must offer services to eve

[1] Lou Chibbaro, Jr., Georgetown Hospital Accused of Anti-Trans Discrimination, Wash. Blade (June 9, 2015), http://www.washingtonblade.com/2015/06/09/georgetown-hospital-accused-of-anti-trans-discrimination/.

[2] Id.

[3] Id. See also U.S. Conf. of Cath. Bishops, Ethical and Religious Directives for Catholic Health Care Services, (5th Ed. 2009), available at http://www.usccb.org/issues-and-action/human-life-and-dignity/health-care/upload/Ethical-Religious-Directives-Catholic-Health-Care-Services-fifth-edition-2009.pdf (last visited Mar. 6, 2016).

[4] Tari Hanneman, Healthcare Equality Index 2014: Promoting Equitable and Inclusive Care for Lesbian, Gay, Bisexual and Transgender Patients and Their Families, 4 Hum. Rts. Campaign Found. (2014), available at http://hrc-assets.s3-website-us-east-1.amazonaws.com//files/assets/resources/HEI_2014_high_interactive.pdf#__utma=149406063.1385 (“70% of transgender or gender non-conforming patients surveyed have experienced some type of discrimination in healthcare”).

[5] Chibbaro, Jr., supra note 1.

[6] Stephen Whittle et al., WPATH Clarification on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage for Transgender and Transsexual People Worldwide, World Prof’l Ass’n for Transgender Health (June 17, 2008), http://www.wpath.org/site_page.cfm?pk_association_webpage_menu=1352&pk_association_webpage=3947.

[7] Maps of State Laws & Policies, Hum. Rts. Campaign, http://www.hrc.org/state_maps (last visited Mar. 6, 2016).

[8] Laws Prohibiting Discrimination Against Gays and Lesbians FAQ, NOLO, http://www.nolo.com/legal-encyclopedia/laws-prohibiting-discrimination-against-gays-faq-32295.html (last visited Mar. 6, 2016).

[9] ACA 42 U.S.C. § 18116 (2010) (“Except as otherwise provided for in this title . . . an individual shall not, on the ground prohibited under title VI . . . title XI . . . the Age Discrimination Act . . . or section 504 of the Rehabilitation Act . . . be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any health program or activity, any part of which is receiving Federal financial assistance, including credits, subsidies, or contracts of insurance, or under any program or activity that is administered by an Executive Agency or any entity established under this title (or amendments)”).

[10] U.S. Dep’t of Health and Hum. Serv., OCR Enforcement under Section 1557 of the Affordable Care Act Sex Discrimination Cases, HHS.Gov, http://www.hhs.gov/civil-rights/for-individuals/section-1557/ocr-enforcement-section-1557-aca-sex-discrimination/index.html (last visited May 2, 2016).

[11] See U.S. Dep’t of Health and Hum. Serv., HHS Takes Next Step in Advancing Health Equity Through the Affordable Care Act, HHS.Gov (Sept. 3, 2015), http://www.hhs.gov/about/news/2015/09/03/hhs-takes-next-step-advancing-health-equity-through-affordable-care-act.html.

[12] Rumble v. Fairview Health Servs., No. 14-CV-2037 SRN/FLN, 2015 WL 1197415, at *1, *14 (D. Minn. Mar. 16, 2015).

[13] See e.g., United States v. Baylor Univ. Med. Ctr., 736 F.2d 1039, 1042 (5th Cir. 1984), U.S. v. Cabrini Med. Ctr., 639 F.2d 144, 151 (2d Cr. 1984), Bob Jones Univ. v. Johnson, 396 F. Supp. 597, 603 n.21 (D.S.C. 1974), aff’d by 529 F.2d 514 (4th Cir. 1975), and Valentine v. Smith, 654 F.2d 503, 512 (8th Cir. 1981).

[14] See No Catholic Right to Transgender Surgery, Catalyst (Mar. 2008), http://www.catholicleague.org/no-catholic-right-to-transgender-surgery/.

[15] ACA 42 U.S.C. § 18023 (2010).

[16] Burwell v. Hobby Lobby Stores, Inc., 134 S.Ct. 2751 (2014).

[17] See U.S. Dep’t of Health and Hum. Servs., supra note 11.

[18] Nina Martin, The Growth of Catholic Hospitals, By the Numbers, ProPublica (Dec. 18, 2013), https://www.propublica.org/article/the-growth-of-catholic-hospitals-by-the-numbers.

[19] See John Geyman, Catholic Hospital Systems: A Growing Threat to Access to Reproductive Services, The Official Blog of Physicians for a Nat’l Health Program (Mar. 24, 2014), http://pnhp.org/blog/2014/03/24/catholic-hospital-systems-a-growing-threat-to-access-to-reproductive-services/.

[20] Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982) (there must be either (1) “a sufficiently close nexus between the State and the challenged action of the regulated entity,” (2) the State must have “exercised coercive power or provided significant encouragement” so that entity’s actions are seen as a decision of the State, or (3) “the required nexus may be present if the private entity has exercised powers that are traditionally the exclusive prerogative of the State”).

[21] See e.g., Estes v. Kapiolani Women’s and Children’s Med. Ctr., 787 P.2d 216 (Hawai’I Feb. 20 1990) (holding that because the state did not direct, encourage, or support the hospital’s policies and because there was no sufficient nexus between the hospital’s policy and its funding from the state it was not quasi-public), and Grossling v. Ford Mem’l Hosp., 614 F.Supp. 1051, 1057-58 (E.D. Tex. 1985) (holding a hospital was not a quasi-public institution because there was no nexus between regulations imposed by the state and the hospital’s action, there was no coercive power for the hospital to act the way it did, and hospitals are not traditionally operated by the state).

[22] See Ann P. Haas et al., Suicide Attempts among Transgender and Gender Non-Conforming Adults: Findings of the National Transgender Discrimination Survey, 2 Am. Found. For Suicide Prevention & The Williams Inst. (Jan. 2014), available at http://williamsinstitute.law.ucla.edu/wp-content/uploads/AFSP-Williams-Suicide-Report-Final.pdf (showing that 42 percent of trans women and 46 percent of trans men have attempted suicide).

[23] Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 757 (Mar. 2008), see also WPATH.

[24] See Know Your Rights: FAQ About Identity Documents, Lambda Legal, http://www.lambdalegal.org/know-your-rights/transgender/identity-document-faq (last visited Mar. 6, 2016).

The Battle for the Living Wage Comes to Alabama By Shruti Jaishankar

The Battle for the Living Wage Comes to Alabama 


Shruti Jaishankar


“I haven’t bought groceries since I started this job. Not because I’m lazy, but because I got this ten pound bag of rice before I moved here and my meals at home (including the one I’m having as I write this) consist, by and large, of that. Because I can’t afford to buy groceries.”[1]


In 2014, 1.3 million workers in the United States earned the federal minimum wage.[2] 1.7 million workers in the United States earned under that level[3]. Most of those workers, like the author of the words above, were between 16 to 29 years old[4]. These figures encompass high school students working their first part-time job at a restaurant, but they also encompassed young millennials working entry-level jobs that pay barely more than their monthly rent. These figures encompass single parents, graduates with towering student loans, and overqualified professionals that lost their higher-paying jobs during the recession. Another surprising feature of these statistics is that the majority of these hourly-paid workers are not the high school dropouts flipping burgers that our parents warned us we would become if we didn’t apply ourselves in school. They are high school graduates, thousands of which have at least some college or an Associates degree[5]. Thousands more have even made it all the way through college and attained a bachelor’s degree[6], and yet still find themselves working for an hourly wage that oftentimes is not enough to cover all their expenses. Trying to survive on a minimum wage is no longer an issue that affects only the least qualified of us; it is now a plight so common that it affects all of us.


In her open letter to the CEO of Yelp, Talia Jane outlines many of the problems of trying to survive on the minimum wage. Jane explains that 80% of the roughly $1400 she makes a month goes to paying her rent[7]. That leaves Jane, and other similarly situated workers, with only 20% of her income left to cover transportation, her phone bill, food, and any other incidental expenses she may incur[8]. Jane is luckier than most, however; she receives benefits in the form of healthcare, vision, and dental insurance through her employer, but she can barely scrape together the $20 co-pay when she gets sick[9].


Jane lives in the Bay Area of San Francisco, admittedly one of the most expensive places to live in the United States. In the Bay Area, the minimum wage is $9 an hour[10]. A living wage for one adult to support herself is $14.37[11]. This disconnect between the minimum wage and the living wage is pervasive through the United States and we in Alabama are not insulated from it. In Tuscaloosa, the minimum wage is $7.25, while a living wage for one adult is $10.10[12]. In Birmingham, a living wage is $10.36[13].


The fight to help workers earn a salary they can actually live on is unfolding close to our own home. On February 23, 2016, lawmakers on Birmingham’s city council acted to raise their minimum wage to $10.10 an hour, closer to a living wage[14]. If successfully implemented, Birmingham would have been the first city in the South with such a high minimum wage[15]. In an effort to keep the state legislature from circumventing their efforts, the city council voted to implement this new wage citywide as early as February 24[16]. However, before the living wage could become a reality in Birmingham, the state legislature of Alabama quickly passed a bill barring cities from setting local wage requirements[17]. Governor Bentley signed the bill into law a mere hour after it passed in the Senate[18]. Bentley cited “wage consistency” and fear over how the law would affect local business owners as his motivation behind signing the bill, though the Governor identified poverty as a key concern facing Alabama in his State of the State address earlier this year[19].


This struggle between local and state lawmakers is by no means a new one. In 29 states and the District of Columbia, workers are paid above the federal minimum[20]. Just last week, lawmakers in Oregon embarked on a plan to raise the City of Portland’s minimum wage to $14.25 by 2022[21]. These local laws raising the minimum wage often meet the same resistance that Birmingham’s did. This is because of the recent “explosion of local minimum wage laws, and that extends into more conservative states where you have more liberal metropolitan areas[22].” As a result, in conservative areas, state legislatures often balk and take action to block such laws.


The problem is that the best way to improve the plight of struggling workers like Talia Jane is on a local level. City councils are best equipped to understand the concerns of both their business owners and the workers who serve them. A federally mandated minimum wage, while helpful as a benchmark, does not accurately reflect the economic realities of cities as different as San Francisco and Birmingham. As long as state legislatures continue to block these efforts, however, change will still occur on a halting and piecemeal basis while minimum wage workers continue to struggle.


It is important that cities like Birmingham, Portland, and San Francisco take stock of the individual problems that face their cities and set living wages that reflect those unique problems. This would allow the rest of the state to follow suit. The state legislature should act as a facilitator for individualized determinations of a living wage in each city instead of acting as a roadblock on the way to combatting poverty.

[1] Talia Jane, An Open Letter to My CEO, Medium.Com (Feb. 19, 2016), available at https://medium.com/@taliajane/an-open-letter-to-my-ceo-fb73df021e7a#.48zsbrlah

[2] U.S. Bureau of Labor Statistics, Characteristics of Minimum Wage Workers, 2014, at 1, BLS Reports (Apr. 2015), http://www.bls.gov/opub/reports/cps/characteristics-of-minimum-wage-workers-2014.pdf

[3] Id.

[4] Id.

[5] Id. at 9

[6] Id.

[7] Talia Jane, An Open Letter to My CEO, Medium.Com (Feb. 19, 2016), https://medium.com/@taliajane/an-open-letter-to-my-ceo-fb73df021e7a#.48zsbrlah

[8] Id.

[9] Id.

[10]Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for San Francisco County, California, (Feb. 28, 2016), http://livingwage.mit.edu/counties/06075

[11] Id.

[12] Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for Tuscaloosa County, Alabama, (Feb. 28, 2016), http://livingwage.mit.edu/counties/01125.

[13] Dr. Amy K. Glassmeier and The Massachusetts Institute of Technology, Living Wage Calculator for Jefferson County, Alabama, (Feb. 28, 2016), http://livingwage.mit.edu/counties/01073.

[14] Kelsey Stein, Birmingham City Council Again Votes to Increase Minimum Wage Sooner Than Planned, AL.com, (Feb. 23, 2016), http://www.al.com/news/birmingham/index.ssf/2016/02/birmingham_minimum_wage_vote_d.html

[15] Id.

[16] Id.

[17] Jana Kasperkevic, Alabama Passes Law Banning Cities and Towns From Increasing Minimum Wage, The Guardian, (Feb. 26, 2016), http://www.theguardian.com/us-news/2016/feb/26/alabama-passes-law-banning-minimum-wage-increase?CMP=share_btn_link

[18] Id.

[19] Id.

[20] Alan Blinder, When a State Balks at a City’s Minimum Wage, The New York Times, (Feb. 21, 2016), http://www.nytimes.com/2016/02/22/us/alabama-moves-to-halt-pay-law-in-birmingham.html.

[21] Id.

[22] Id.

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