Monthly Archives: February 2016

Legal Context of the Recent iPhone Order By Chris Saville

Legal Context of the Recent iPhone Order

By

Chris Saville

 

The San Bernardino shooting was the most lethal terrorist attack on the United States since September 11, 2001.[1] Fourteen people were murdered by just two assailants.[2] The shooters were reportedly in contact with international terrorist suspects and may have been connected with the terrorist group ISIS via social media.[3] In an effort to gather more information on their social media activity, the FBI recently requested a federal order compelling Apple, Inc. to assist in disabling security features on the iPhone belonging to one of the shooters.[4] The United States District Court for the district of California granted that order on February 16, 2016.[5] Instead of complying, Apple is fighting the federal order in court.[6] While there has been widespread public response to the order, Apple’s defiance, and the All Writs Act generally, there has been relatively little discussion regarding the content of the order itself. Despite several recent decisions on similar issues, the order is devoid of case law and the reasoning behind the decision. This piece attempts to provide some background information on the issue and how this situation might compare to previous decisions in a purely legal sense.

The government cites the All Writs Act[7] as their legal authority to compel Apple’s cooperation in this case.[8] The Supreme Court has interpreted the All Writs Act to provide courts with the “authority to issue writs that are not otherwise covered by statute.”[9] The statute has long been used to compel cooperation with law enforcement investigations involving telecommunications.[10] In United States v. New York Telephone Co. the Supreme Court upheld an order demanding a telephone company to comply with law enforcement in installing a pen register to aid in their search.[11] Recently, federal courts have extended New York Telephone Co., issuing writs compelling phone manufacturers, such as Apple, to assist law enforcement in unlocking smartphones during criminal investigations.[12]

Use of the All Writs Act to compel compliance in cases involving smartphones, however, has also faced resistance. After the Southern District of New York’s decision in In Re XXX, the Eastern District of New York refused to conclude that the All Writs Act automatically provided courts with the ability to compel phone manufacturers to unlock phones for law enforcement.[13] While refusing to immediately rule on the writ, the court leaned towards rejection.[14] It based its reasoning primarily on the issue of whether forcing Apple to sacrifice its security standards would be unduly burdensome.[15] The court also rejected extension of New York Telephone Co. to the unlocking of smartphones.[16] It found that Apple’s status as a private phone manufacturer was far different from the public utility company at issue in New York Telephone Co.. Further, the Eastern District’s case involved unlocking the phone itself, a practice not consistent with everyday operations.[17] In New York Telephone Co., however routinely used the requested relief in its day to day procedures.[18]

The facts in the Eastern District of New York’s case are facially similar to those in the case currently at issue. In the San Bernardino order, the FBI has requested Apple to provide them with the ability to bypass the auto-erase function on iPhones, electronically enter passwords, and prevent any software imposed time delays on the entry of individual passwords.[19] Ultimately this would provide the FBI with the ability to enter thousands of password combinations in a shorter amount of time and not trigger the iPhone’s feature of automatically deleting the hard drive contents after 10 incorrect password attempts.[20] In both this case and the Eastern District’s the federal government asked the federal courts to compel Apple, Inc. to provide assistance in bypassing security features on an iPhone. While the California District Court is not bound by precedent[21], one would assume that given the similarities the court would at least recognize the Eastern District of New York’s opinion and reasoning. As of this writing, however, the order is noticeably lacking any reference to the New York district opinion, or the reasoning behind the decision in general.[22] It will be interesting to see how the California court’s reasoning compares to that of the Eastern District’s analysis, because while the facts appear similar on their face, the current case is ultimately far more important to the interplay of national security and personal privacy.

While the Eastern District of New York case dealt with assistance in unlocking an iPhone, the federal government in the current case is asking for far more. The FBI’s request in the Eastern District opinion only asked for assistance in cracking the user’s code.[23] Here, the FBI is requesting Apple create entirely new software to take advantage of an existing security flaw.[24] This has far reaching implications not before encountered. It demands that Apple affirmatively create a way to allow the FBI to circumvent security features that were purposefully placed on the iPhone in an attempt to promote security.[25] While the FBI claims that use of such a “backdoor” would be limited to only this case, presumably they could also use the method to gain access to other phones wholly unrelated to the San Bernardino shooting.[26] Given the hesitation of the Eastern District to compel aid to merely unlock an iPhone, much less creating software that could be used multiple times to sidestep security features, it is interesting that the California court nonetheless granted the order. Without the court’s reasoning behind the decision, however, we can only speculate on the myriad of factors that went into the decision.

While there are a multitude of policy considerations that must be weighed when balancing national security and the rights of citizens, one must never forget the legal considerations that must also be assessed. A well-reasoned opinion detailing the methods in reaching a decision can have lasting effects on both the law and debates concerning the policy behind those decisions. Put simply, the lack of comparison to other case law, or analysis in general, deprives the law the benefit of the discussion. Furthermore, it deprives citizens of the reasons for decisions that might limit their freedoms. Policy arguments will continue to rage in favor or against the order, but policy is only one piece of the debate. Until the court publishes their analysis of the issue this debate cannot be truly informed. The legal community, and the public at large, eagerly awaits the District of California’s reasoning behind such a monumental decision.

 

 

[1] Peter Bergen, What Explains the Biggest U.S. Terror Attack Since 9/11?, Cable News Network (Dec. 5, 2015), http://www.cnn.com/2015/12/04/opinions/bergen-san-bernardino-terror-attack-explain/index.html.

[2] Faith Karimi, San Bernardino Shooting: Who were the Victims?, Cable News Network (Dec. 7, 2015), http://www.cnn.com/2015/12/03/us/san-bernardino-shootings-victims/index.html.

[3] Saeed Ahmed, Who were Syed Rizwan Farook and Tashfeen Malik?, Cable News Network (Dec. 4, 2015), http://www.cnn.com/2015/12/03/us/syed-farook-tashfeen-malik-mass-shooting-profile/index.html.

[4] Bruce Schneider, Why you Should Side with Apple, not the FBI, in the San Bernardino iPhone Case, The Washington Post (Feb. 18, 2016), https://www.washingtonpost.com/posteverything/wp/2016/02/18/why-you-should-side-with-apple-not-the-fbi-in-the-san-bernardino-iphone-case/?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory.

[5] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1 (C.D. Cal. Feb. 16, 2016).

[6] Tim Cook, A Message to our Customers, Apple, Inc. (Feb. 16, 2016), http://www.apple.com/customer-letter/.

[7] 28 U.S.C.A. § 1651 (2012).

[8] Bruce Schneider, supra note 4.

[9] Pennsylvania Bureau of Correction v. U.S. Marshals Serv., 474 U.S. 34, 43 (1985).

[10] United States v. New York Tel. Co., 434 U.S. 159, 174 (1977).

[11] New York Tel. Co., 434 U.S. at 176.

[12] In re XXX, Inc., No. 14 MAG. 2258, 2014 WL 5510865, at *2 (S.D.N.Y. Oct. 31, 2014).

[13] In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, No. 15MISC1902, 2015 WL 5920207, at *7 (E.D.N.Y. Oct. 9, 2015).

[14] Id.

[15] Id.

[16] Id. at 5.

[17] Id. at 5.

[18] Id. at 5.

[19] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1.

[20] Bruce Schneider, supra note 4.

[21] Camreta v. Greene, 563 U.S. 692 (2011).

[22] Matter of Search of an Apple iPhone Seized During Execution of a Search Warrant on a Black Lexus IS300, California License Plate 35KGD203, No. ED 15-0451M, 2016 WL 618401, at *1.

[23] In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant Issued by this Court, No. 15MISC1902, 2015 WL 5920207, at *1.

[24] Tim Cook, supra note 6.

[25] Tim Cook, supra note 6.

[26] Tim Cook, supra note 6.

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Cyber Civil Rights By Kate Bonner

Cyber Civil Rights

By Kate Bonner

 

The internet is a dangerous avenue for civil rights violations. One form of such a violation is revenge porn, or nonconsensual pornography. [1] Revenge porn is “a form of sexual abuse that involves the distribution of nude/sexually explicit photos and/or videos of an individual without their consent.” [2] Many times these postings include detailed information including the victim’s phone numbers and potentially even their addresses. Despite the name, “many perpetrators are not motivated by revenge or by any personal feelings toward the victim.” [3] In any event, the posting of such private images or videos without someone’s consent on such a public forum can have horrific consequence. [4]

“Up to 80% of revenge porn victims took the offending photographs themselves, which means that they own the rights to those pictures.” [5] Many times the initial disclosure of photos or videos that will be used on the internet later are sent consensually. However, the release of the photos on the internet is nonconsensual and should be illegal in all states. Currently, 26 states have revenge porn laws including Florida, who has a sexual cyber-harassment statute, and Georgia, who has an invasion of privacy statute. [6] Alabama is not among the states that have enacted laws regarding revenge porn. [7] Carrie Goldberb, a New York attorney who has gained notoriety for work to help victims seek justice, stated, “Alabama neither has a revenge porn law nor has introduced one.” [8]

“Revenge porn causes harms tied to its vengeful nature – a privacy invasion that interferes with and sometimes destroys the victim’s relationship with others.” [9] Victims have lost their jobs, been harassed by strangers, and have been unable to attend college or find a job due to the backlash from their photos being posted online. [10] The consequences of revenge porn are likely more long lasting than real-life harassment because it is increasingly difficult for victims to engage in self-help or legal remedies, it is accessible to almost anyone, and harassers have a wide audience. [11]

Influential convictions have helped shape many of the state’s revenge porn statutes. In March 2015, “an Oregon man was sentenced to jail in Utah state court for sending his in-laws explicit pictures of his estranged wife, a case that led to the passing of the state’s first revenge porn statute.” [12] He was sentenced to 60 days in jail, on top of the 90 days he had previously served. [13] In California, “a man posted photos of his ex-girlfriend without her consent on her employer’s Facebook page.” [14] This man was the first to be convicted under California’s “revenge porn” law and was sentenced to one year in jail and 36 month probation. [15] Convictions similar to these are essential to the fight against revenge porn.

It is time for Congress to take action to protect victims of revenge porn. A bill has been introduced that would “make the nonconsensual distribution of intimate photos a federal crime.” [16] “The bill proposes a prison sentence of up to five years along with a fine.” [17] Whether this proposed bill will have any effect on foreign sites is unclear; however, this bill’s proposal is a step in the right direction. Further, many organizations and nonprofits have taken a stand against revenge porn and work continually to protect victims of cyber crime. Without My Consent is a non-profit working to combat online harassment and invasions of privacy. [18] Without My Consent states, “We stand for free speech, privacy, due process, and equality in a digital world.” [19] End Revenge Porn was initiated by Holly James, Ph.D., after being a victim of revenge porn herself. [20] End Revenge Porn is a hub where victims can get information, receive support, be referred to pro or low bono services to help them regain control of their search results and their lives. [21] The stand against abuse by revenge porn has to be a collaborative effort. Google has a new policy that “will allow anyone to fill out a form requesting the removal of nude and sexual images of themselves that have been posted without consent.” [22] Further, social media sites like Facebook have backed the criminalization of revenge porn. [23] Legislatures and private actors alike must take action to end the detrimental life-altering effects of revenge porn.

Questioning why someone would send suggestive photos to another person is an important consideration; however, trusting someone with private photos does not give them the right to expose them publically. Many people associate porn with consensual action and that is far from the truth. In the realm of revenge porn, individuals are facing life altering consequences for simply trusting someone close to them. It is past time for Alabama to take action in the way of passing a law criminalizing revenge porn. Go sign the petition to End Revenge Porn. [24]

 

 

[1] What is NCP?, End Revenge Porn, http://www.endrevengeporn.org/faqs-usvictims// (last visited Feb. 10, 2016).

 

[2] Id.

 

[3] Id.

 

[4] Andrienne N. Kitchen, The Need to Criminalize Revenge Porn: How a Law Protection Victims Can Avoid Running Afoul of the First Amendment, 90 Chi-Kent L. Rev. 247, 247 (2015).

 

[5] What is “Revenge Porn”?, Cyber Civil Rights Legal Project, https://www.cyberrightsproject.com (Last visited: Feb. 10, 2016).

 

[6] Revenge Porn Laws, End Revenge Porn, http://www.endrevengeporn.org/revenge-porn-laws/ (last visited: Feb 10, 2016).

 

[7] Id.

 

[8] John Sharp, The Growing and Disturbing Rise of ‘Revenge Porn’, AL.Com (July 05, 2015), http://www.al.com/news/mobile/index.ssf/2015/07/the_growing_and_disturbing_ris.html.

 

[9] Andrienne N. Kitchen, The Need to Criminalize Revenge Porn: How a Law Protection Victims Can Avoid Running Afoul of the First Amendment, 90 Chi-Kent L. Rev. 247, 247 (2015).

 

[10] Id.

 

[11] Id.

 

[12] Emily Field, Man Gets Jail Time In Utah’s Landmark Revenge Porn Case, Law 360 (March 17, 2015), http://www.law360.com/articles/632674/man-gets-jail-time-in-utah-s-landmark-revenge-porn-case-?article_related_content=1.

 

[13] Id.

 

[14] Lydia O’Conner, ‘Revenge Porn’ Law Sees First Conviction in California, Huffpost Tech (Dec. 02, 2014), http://www.huffingtonpost.com/2014/12/02/revenge-porn-california-first-conviction_n_6258158.html.

 

[15] Id.

 

[16] Steven Nelson, Congress Set to Examine Revenge Porn, U.S. News (July 30, 2015), http://www.usnews.com/news/articles/2015/07/30/congress-set-to-examine-revenge-porn.

 

[17] Id.

 

[18] Who We Are, Without My Consent, http://withoutmyconsent.org/who-we-are (last visited: Feb. 10, 2015).

 

[19] Id.

 

[20] Who We Are, End Revenge Porn, http://www.endrevengeporn.org/revenge-porn-laws/ (last visited: Feb 10, 2016).

 

[21] Id.

 

[22] Heather Kelly & Laurie Segall, Google Bans Revenge Porn, CNN Money (June 19, 2015), http://money.cnn.com/2015/06/19/technology/google-bans-revenge-porn/.

 

[23] Mario Trujillo, Facebook Backs Criminalization of Revenge Porn, The Hill (Nov. 20, 2015), http://thehill.com/policy/technology/257450-facebook-silent-on-federal-revenge-porn-bill-amid-delays.

 

[24] Petition, End Revenge Porn, http://www.endrevengeporn.org/revenge-porn-laws/ (last visited: Feb 10, 2016).

Legalizing Discrimination: A Look at How the Southeast is a Region without LGBT anti-discrimination Protections By: Akiesha Anderson

Legalizing Discrimination: A Look at How the Southeast is a Region without LGBT anti-discrimination Protections

By: Akiesha Anderson

Introduction

The LGBT population traditionally has not been protected by and afforded certain rights under the law in large part because they have not been recognized by the law. Unlike minorities, women, children, and other groups of people whom the law has often explicitly recognized and classified, until recent years the law has treated LGBT persons much like society has treated them—as marginalized, discounted, and not quite worthy of special protections under the law. However, within the last twenty years many notable steps have been taken to ensure and establish often denied rights and protections to LGBT persons. [1]

At the end of last year’s legislative sessions, nearly two-thirds of states in the nation provided some sort of protections against employment discrimination based on sexual orientation. Additionally, over forty percent of states provided protections prohibiting housing discrimination based on sexual orientation. The same percentage of states had public accommodation laws prohibiting discrimination based on sexual orientation. Although these numbers show a positive outlook and great progress being made in the fight for LGBT rights, it is troubling to note however, that such progressive state laws had not been enacted anywhere in the southeast. [2]

The southeastern LGBT community still faces numerous hurdles including legislative actions which affect their everyday life and freedom. Sadly, southeastern legislatures are not above proposing and enacting laws specifically designed to legalize and codify discrimination. In the year immediately following the Supreme Court’s same-sex marriage decision in Obergefell, and as many states begin their legislative sessions, LGBT-rights advocates should recognize the importance of watching state legislatures and any proposed bills which may impact the lives of LGBT-citizens. Especially in the south, and the ‘Bible-Belt’ region of the nation, where many citizens and elected officials alike are still actively resisting the Supreme Court’s decision, it is likely that state legislatures will be used as a forum to codify pro- or anti-LGBT sentiments in the coming years.

Southeastern 2015 LGBT anti-discrimination Legislative Trends

Although, last year, Alabama,[3] Florida,[4] and Georgia[5] each proposed legislation aimed at providing the LGBT community with protections against discrimination, none of these bill were passed. On the opposite end of the spectrum, Arkansas proposed and enacted a law last year to ban municipalities from providing the LGBT community protections against discrimination.[6] Arkansas’ bill is scary not only because it codifies rights to discriminate, but also because it gives other states a blueprint and example of what they too can do to push back against and show resistance towards the LGBT-rights movement. Thus Arkansas’ bill may very likely only be the first in a wave of similar bills to be introduced by various state legislatures both this year and upcoming years.[7]

Arkansas’ bill entitled “The Intrastate Commerce Improvement Act” prohibited all municipalities within the state from adopting and enforcing policies prohibiting discrimination against any additional classes of persons not already protected by state law.[8] In 1996, a state law which had the same effect was ruled unconstitutional by the Supreme Court in Romer v. Evans.[9] In this case the Supreme Court held that a law enacted by Colorado in 1992, preventing local municipalities from enacting or enforcing LGBT anti-discrimination protections was unconstitutional under the Equal Protection Clause.[10] This Colorado law had one major characteristic which distinguishes it from the law just passed in Arkansas: the latter’s effect on LGBT protections is implicit whereas Colorado explicitly singled out LGBT persons as a class to be denied protections.

Although Arkansas’ law is arguably facially neutral,[11] in effect, it invalidates and prevents local ordinances designed to protect LGBT persons from discrimination.[12] The passage of this bill makes Arkansas the second state since Romer to ever pass such a bill. In 2011, Tennessee became the first.[13] Tennessee’s bill offers some level of insight into what an unsuccessful challenge to Arkansas’ or similar bills in the future may look like.

In 2014, Tennessee’s bill entitled the “Equal Access to Intrastate Business Act” survived a lawsuit challenging its constitutionality.[14] The State of Tennessee was the victor in this lawsuit mainly because it was able to get the court to rule on the procedural intricacies of the case thus preventing an evaluation of its merits.[15] Nevertheless, this success story increases the likelihood of more states besides just Arkansas following in its footsteps by enacting copycat laws.

Conclusion

It is important for LGBT-rights advocates to be aware of bills designed to strip or enact LGBT discrimination protections as in the upcoming legislative session such bills are likely to been seen and duplicated. Additionally, LGBT-rights advocates must develop strategies support the enactment of desirable bills whilst challenge and try to prevent the enactment of discriminatory bills. Because Tennessee’s legal challenge was not decided on its merits, the likelihood of success for a legal challenge to Arkansas’ or similar bills which may be enacted in the future remains to be seen. Although additional research will need to be done should LGBT-rights legal advocates decide to participate in lawsuits challenging the law enacted in Arkansas or similar laws proposed in other states, initial ideas and thoughts concerning how to approach such a legal challenge include the following:  the law presently is not on the side of LGBT-rights advocates unless there is clear indication in legislative history that displays amicus; and then it is only on their side in brief strokes. (2) State preemption and “home-rule” laws will need to be taken into consideration when attempting a legal challenge to these kinds of state laws as different states have different rules regarding such.

 

 

[1] See, e.g. Obergefell v. Hodges, 576 U.S. __ (2015); see also, Exec. Order No. 13,087, 63 Fed. Reg. 30,097.

[2] Throughout this blog, ‘southeast’ refers only to the states of Alabama, Arkansas, Florida, Georgia, Louisiana, Mississippi, and Tennessee.

[3] See Civil Rights…Free From Discrimination…Act, Ala. H.B. 615, Reg. Sess. (2015) available at http://alisondb.legislature.state.al.us/ALISON/SearchableInstruments/2015RS/PrintFiles/HB615-int.pdf (an ant-discrimination bill designed to ban discrimination based on sexual orientation and gender identity. This bill would have provided protections in the areas of employment, housing, voting, financial transactions, and other accommodations).

[4] See e.g., Florida Competitive Workforce Act, Fla. S.B. 156, Reg. Sess. (2015) available at http://www.myfloridahouse.gov/Sections/Bills/billsdetail.aspx?BillId=53048 (a bill designed to add sexual orientation and other kinds of identity expression to a list of impermissible grounds for discrimination).

[5] See Fair employment Practices Act of 1978 and merit system; prohibit discrimination based on sexual orientation; change certain provisions, Ga. H.B. 323, Reg. Sess. (2015) available at https://legiscan.com/GA/text/HB323/2015 (Georgia proposed yet failed to pass a bill that would have made employment discrimination based on sexual orientation or gender identity within state agencies illegal).

[6] See Nondiscrimination Ordinances-Counties-Municipalities, Ark. Act 137 of 2015, § 14-1-41 et seq., formerly known as S.B. 202, 90th Gen. Assembly, Regular Session, (2015).

[7] See Zach Ford, Oklahoma Sets New Record for Attempts to Discriminate Against LGBT People, Think Progress, Jan. 28, 2016 available at http://thinkprogress.org/lgbt/2016/01/28/3743440/oklahoma-anti-lgbt-bills-record/ (describing S.B. 1289, a bill proposed in Oklahoma this legislative session “mirroring other ‘preemption’ bills passed previously in Arkansas…dictat[ing] that no municipality can pass a law that goes beyond what is set by state law. Because the state does not protect LGBT people from discrimination, this would effectively ban the passage and enforcement of such protections. It would invalidate the sexual orientation protections that exist in Oklahoma City and Tulsa, and the sexual orientation and gender identity protections that exist in Norman.”)

[8] See Nondiscrimination Ordinances-Counties-Municipalities, Ark. Act 137 of 2015, § 14-1-41 et seq., formerly known as S.B. 202, 90th Gen. Assembly, Regular Session, (2015).

[9] 517 U.S. 620 (1996).

[10] Id. at 635 (“We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A state cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause[.]”.

[11] Supra note 6, (this law simply says that “no law shall protect a group not already protected under state law—and presents itself as being pro-business/trying to maintain consistencies for businesses throughout the state).

[12]  See, e.g. HRC Staff, Largest County in Arkansas Passes Employment Protections for County Workers, HRC Blog, May 26, 2015, http://www.hrc.org/blog/entry/in-win-for-equality-largest-county-in-arkansas-passes-employment-protection, (Hot Springs, Pulaski, Little Rock, Conway, and Eureka Springs each have ordinances forbidding discrimination based on sexual orientation, gender identity, and/or gender expression.  § 14-1-403(b) of the ordinance provides an exception for municipalities creating anti-discrimination policies for persons employed by that municipality. Eureka Springs is the only of these five cities to have comprehensive LGBT protections for all residents of the city including city workers).

[13] See Equal Access to Intrastate Commerce Act, Tenn. Code Ann. § 7-51-1801(1) & (2). (“No local government shall by ordinance, resolution, or any other means impose on or make applicable to any person an anti-discrimination practice, standard, definition, or provision that shall deviate from, modify, supplement, add to change, or vary in any manner from…state law….”).

[14] See Howe v. Haslam, 2014 Tenn. App. LEXIS 716 (Tenn. Ct. App. 2014).

[15] Id.

When Colleges Support Prisons, We all Lose by Catie Malone

When Colleges Support Prisons, We all Lose

By

Catie Malone

 

College is meant to provide an opportunity for each of us to expand our knowledge base, achieve our goals, and improve our stations in life. Studies have shown that those with a bachelor’s degree earn around $650,000 more than those with just a high school diploma, about $550,000 more considering cost of attendance.[1] More importantly, college degrees have a stronger correlation to economic mobility thank many other factors. College graduates are 5.3 times more likely to escape the bottom percentile of the income spectrum.[2] Since blacks and Hispanics fall within poverty rates at disproportionately high levels,[3] the opportunity to rise in socioeconomic status and social status are especially important.

However, many of these opportunity-offering institutions of higher education are also substantial investors and beneficiaries to the private prison system that incarcerates about 20% of federal prisoners and 7% of state prisoners, with its use in immigration detention continuing to rise.[4] Offering a cost-saving model for states, the private prison industry has grown 784 percent in the last twenty years.[5] In 2013 alone, 37% of male inmates in state or federal prisons were black and 22% were Hispanic.[6] For female inmates, the imprisonment rate of blacks was twice the rate of white females.[7] These private prisons depend, in large part, on higher incarceration rates and the Corrections Corporation of America (CCA) has stated that its services would be “adversely affected by [any] relaxation of enforcement efforts.”[8]  Because of contracts with governments to maintain occupancy rates,[9] the private industry is more focused on staying as full as possible to make as much money as possible, and less on rehabilitating those in its jurisdiction for life outside.

Until recently, the system that disproportionately held people of color in confinement and capitalized on their forced labor was supported by substantial investments by colleges and universities. In 2013, students at Columbia University discovered their school’s investment in one of the largest private prison operations in the country, CCA.[10]  When students discovered that their school owned over 230,000 shares of CCA stock worth $8 million,[11] their campaign to get the school to divest its interest in these private prisons was born. Similarly, the University of California system had a $25 million investment in three large private prison organizations and over $400 million invested in Wells Fargo, “one of the largest financiers or private prisons.”[12]

These schools benefit from the private prison industry by directly investing their endowments in organizations like Corrections Corporation of America and the GEO Group. They also contribute indirectly by relying on the services of the “Million Shares Club,” a group of banking and financial institutions that individually own at least one million shares of CCA and GEO, and collectively own over two-thirds of the shares.[13] For example, Wells Fargo, one of the members of this exclusive club, provides over $1.2 billion capital for private prisons.[14] The financial return on these investments in a “system that has ruthlessly targeted Black and immigrant people for the sole purpose of making profit.”[15] Schools who pay lip service to the values of diversity in the classroom with students representing various racial, sexual, gender, socioeconomic, religious, nationality, etc. identities while investing in this prison system which some would call “systemic and structural economic slavery… carried out through mass incarceration.”[16] But the problem runs deeper than just the benefit that these schools receive from their investments. Their investments also fund the prison industrial complex and its continued model of using those sentenced to serving time as a low-cost, un-unionized labor force that “turn[s] Black, brown, and immigrant bodies into a profit under the guise of rehabilitation.”[17]

The contradiction of higher education investment in the prison industry is further highlighted when considering that the goal of colleges should be focused on preparing students for employment in their chosen career. Colleges and universities “mission… [of] teaching, research, and public service, [is] fundamentally incompatible” with the profit-driven goals of the prison industry.[18] Though it may not directly affect the curriculum of a school or its approach to teaching, that the school is funded in part by the private prison system shows the disconnect with the objectives of education. Education is supposed to help those in need find ways out of their situations and into a better life. It is supposed to open doors and provide opportunities. These focal points do not comport with the profit concerns of the private prison industry, the ways that this system encourages and benefits from the overcriminalization of black and brown bodies, or the disenfranchisement many face upon release from prison. The effect of the prison industry complex can also seen in the position of the two on opposite ends of the funding spectrum. The state of California has increased spending on correctional programs by 436% since 1980, while higher education spending has decreased by 13%.[19] The problem is even further compounded by the presence of CCA board members on university Boards of Trustees.[20] These CCA board members have been named Trustees at schools like Ohio, Florida Atlantic, Belmont, and Arizona State Universities.[21]

While the student-led divestment campaigns have been successful in pressuring Columbia and the California systems to sell their shares in CCA and GEO,[22] they failed to make any headway in eliminating or reducing the amounts invested in “Million Shares Club” institutions. If this express contradiction in the proclaimed goals of higher education and the motives and operating procedures of private prisons is to end, institutions of higher learning should become just that. They must end their contribution to the prison industry both in financial support and in direct investment to the organizations.

[1] Dr. Ricardo Aziz, The Great Debate: Is College Still Worth It?, The Huffington Post, http://www.huffingtonpost.com/dr-ricardo-azziz/debate-college-worth_b_4561068.html (March 11, 2014).

[2] Id.

[3] Who is poor?, Institute for Research on Poverty, http://www.irp.wisc.edu/faqs.htm (last accessed Feb. 14, 2016).

[4] Gabrielle Canon, Here’s the Latest Evidence of How Private Prisons Are Exploiting Inmates for Profit, Mother Jones http://www.motherjones.com/mojo/2015/06/private-prisons-profit June 17, 2015.

[5] Hannah Gold, 5 Links Between Higher Education and the Prison Industry, Rolling Stone

June 18 ,2014

[6] E. Ann Carson, Prisoners in 2013 U.S. Department of Justice Bureau of Justice Statistics, 1 http://www.bjs.gov/content/pub/pdf/p13.pdf (revised Sept. 30, 2014).

[7] Id.

[8] Michael Cohen, How For-Profit Prisons Have Become the Largest Lobby No One is Talking About The Washington Post, https://www.washingtonpost.com/posteverything/wp/2015/04/28/how-for-profit-prisons-have-become-the-biggest-lobby-no-one-is-talking-about/ (April 28, 2015).

[9] Id.

[10] Gold at 1.

[11] Id.

[12] Anthony Williams, University of California Has Millions Invested in Private Prisons, Afrikan Black Coalition, Nov. 30, 2015, http://afrikanblackcoalition.org/2015/11/30/university-of-california-has-millions-invested-in-private-prisons/.

[13] Million Shares Club: 36 Major Private Prison Investors, Prison Divestment Campaign, June 12, 2014 https://prisondivest.com/2014/06/12/million-shares-club-36-major-private-prison-investors/.

[14] Black Students win Prison Divestment at CSULA Prison Divestment Campaign, Feb. 11, 2016, https://prisondivest.com/2016/02/11/black-students-win-prison-divestment-at-csula/#more-5877.

[15] Williams at 1.

[16] Id.

[17] Chris Isidore and Robert Mclean, University of California dumps private prison stocks after student protests, CNN Money, Dec. 29, 2015, http://money.cnn.com/2015/12/29/investing/university-california-private-prison-stocks.

[18] University of California School System Has Invested Millions Into Private Prisons, http://www.clutch

magonline.com/2015/12/university-of-california-school-system-has-invested-millions-into-private-prisons/ (last accessed Feb. 14, 2016).

[19] Aaron Sankin, California Spending More on Prisons Than Colleges, Report Says, HuffPost San Francisco, Sept. 8, 2012, http://www.huffingtonpost.com/2012/09/06/california-prisons-colleges_n_1863101.html.

[20] Gold at 1.

[21] Id.

[22] See Reuters University of California Drops Prison Investments Amid Student Demands, Dec. 18, 2015, http://www.reuters.com/article/us-california-university-idUSKBN0U202020151219, Tyler Kingkade, Columbia University Will Divest From Private Prison Companies, The Huffington Post, June 29, 2015, http://www.huffingtonpost.com/2015/06/22/columbia-divest-prison_n_7640888.html.

Solitary Confinement: on the Eve of Wider Sea Change By: Anna Critz

 

Solitary Confinement: on the Eve of Wider Sea Change

By: Anna Critz

“The United States is a nation of second chances, but the experience of solitary confinement too often undercuts that second chance.” –President Barack Obama[1]

Just last week, President Barack Obama announced in an opinion piece in the Washington Post that he had chosen to adopt certain new reforms regarding the use of solitary confinement in the federal prison system.[2]  Among those reforms are “banning solitary confinement for juveniles and as a response to low-level infractions, expanding treatment for the mentally ill and increasing the amount of time inmates in solitary can spend outside of their cells.”[3]  In the op-ed defending his course of action, the president cited specifically the negative psychological effects of solitary confinement on prisoners and how its use undermines the critical goal of prisoner to society re-entry.[4]  While this is only one step, it may be indicative of a larger trend—that is, we may be on the brink of wider sea change on the important civil rights issue of the use of solitary confinement in prison settings.

Solitary confinement refers to the practice in which prisoners are held in separate units away from the rest of the general population of the prison.[5]  Solitary confinement inmates are most often held in small, Spartan cells for twenty-three hours per day with one hour for exercise.[6]  Human interaction is limited to meals pushed through an opening in the door.[7]  When the prisoners are fortunate enough to have windows in their cells, those windows look out at nothing “but more prison.”[8]  When the prisoners are removed from their cells for something special (a meeting with their attorneys for instance), they are marched passed other inmates who are often told to face the wall and not interact with the solitary confinement prisoners.[9]  It is truly extreme isolation.

And it is a controversial practice.  Studies have shown that prisoners in solitary confinement experience terrible mental health outcomes, that they develop a host of different conditions from depression to anxiety to extreme paranoia and obsessive thoughts and behaviors.[10]  While solitary confinement inmates make up only 5 percent of the total number of people incarcerated, they account for 50 percent of all prison suicides.[11]  Critics of the practice call it a “grave human rights abuse” that has already been denounced in many countries and laud President Obama for the steps he has taken to restrain the practice in recent weeks.[12]  Others, like Norman Seabrook, the head of New York City’s Correction Officers’ Benevolent Association, disagree with the president’s measures.[13]  Mr. Seabrook sees solitary confinement as a necessary tool to maintain order in the American prison system, a stick for those whom normal carrots and sticks do not incentivize and argues the president’s reforms ignore the daily circumstances of life as a correction officer. [14]

Solitary confinement is currently constitutional in the United States.[15]  Some inroads to curb it have been made, however.  For instance in 2015, California solitary confinement plaintiffs settled a monumental class action suit in that state, resulting in immediate changes to the state’s use and review policies for solitary confinement.[16]  Now, with this recent step from the executive branch to restrict the practice, solitary confinement may very well be the next frontier in civil rights litigation.  One need only look to Justice Kennedy’s concurrence in the 2015 opinion of Davis v. Ayala to find the Supreme Court might be willing to lead a larger sea change when it comes to the practice.[17]  Justice Kennedy veered from the issue of the case to discuss the severe conditions that the respondent likely faced as a solitary confinement prisoner of more than twenty years.[18]  In his concurrence, he noted the long history of scholarship surrounding the link between solitary confinement and mental illness, recognized that “[y]ears on end of near-total isolation exact a terrible price,” and quoted Dostoyevsky in finding that a society might be judged by the state of its prisons.[19]  Justice Kennedy’s words are significant: the court may be willing to hear an Eighth Amendment solitary confinement challenge soon.

 

 

[1] Barack Obama, Barack Obama: Why we must rethink solitary confinement, Wash. Post, (Jan. 25, 2016), https://www.washingtonpost.com/opinions/barack-obama-why-we-must-rethink-solitary-confinement/2016/01/25/29a361f2-c384-11e5-8965-0607e0e265ce_story.html.

[2] Id.

[3] Id.

[4] Id.

[5] See Jason M. Breslow, What Does Solitary Confinement Do To Your Mind, PBS.org, (Apr. 22, 2014), http://www.pbs.org/wgbh/frontline/article/what-does-solitary-confinement-do-to-your-mind/.

[6] Id.

[7] Id.

[8] Editorial Board, Obama is right to reduce the use of solitary confinement, Wash. Post, (Jan. 25, 2016), https://www.washingtonpost.com/opinions/obama-is-right-to-reduce-the-use-of-solitary-confinement/2016/01/25/db5aea3c-c3b6-11e5-9693-933a4d31bcc8_story.html.

[9] See Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016), http://www.theguardian.com/commentisfree/2016/jan/26/solitary-confinement-prison-york-correctional-institution-barack-obama-reduce.

[10] See Torture: The Use of Solitary Confinement in Prisons, Center for Constitutional Rights, (May 31, 2012),  https://ccrjustice.org/home/get-involved/tools-resources/fact-sheets-and-faqs/torture-use-solitary-confinement-us-prisons; Jason M. Breslow, What Does Solitary Confinement Do To Your Mind, PBS.org, (Apr. 22, 2014), http://www.pbs.org/wgbh/frontline/article/what-does-solitary-confinement-do-to-your-mind/.

[11] Chandra Bozelko, I experienced the horror of solitary confinement, The Guardian, (Jan. 26, 2016), http://www.theguardian.com/commentisfree/2016/jan/26/solitary-confinement-prison-york-correctional-institution-barack-obama-reduce.

[12] John D. Sutter, Obama is right: No kid should be in solitary confinement, CNN, (Updated Jan. 26, 2016), http://www.cnn.com/2016/01/26/opinions/sutter-solitary-confinement-obama-update/.

[13] Norman Seabrook, Obama is wrong on solitary confinement, USA Today, (Feb. 7, 2016), http://www.usatoday.com/story/opinion/2016/02/04/obama–wrong-solitary-confinement-column/79649416/.

[14] Id.

[15] See e.g., Beard v. Banks, 548 U.S. 521 (2006); Sandin v. Conner, 515 U.S. 472 (1995).

[16] See Ashker v. Governor of California, Center for Constitutional Rights, https://ccrjustice.org/home/what-we-do/our-cases/ashker-v-brown; see also Summary of Ashker v. Governor of California Settlement Terms, (Sept. 1, 2015), https://ccrjustice.org/sites/default/files/attach/2015/08/2015-09-01-Ashker-settlement-summary.pdf.

[17] Davis v. Ayala, 135 S. Ct. 2187, 2208 reh’g denied, 136 S. Ct. 14, (2015) (Kennedy, J., concurring).

[18] Id.

[19] Id. at 2209-10.

Education – A Fundamental Right? “Separate and Still Unequal” By: Bridget Elizabeth Harris

Education – A Fundamental Right?

“Separate and Still Unequal”

 

By:

 

Bridget Elizabeth Harris

 

Unequal education is not a recent controversy in America. In fact, more than 60 years have passed since the Brown v. Board of Education decision; however, school systems in the United States are still “separate and unequal.”[1] While minorities are now provided with an “equal” opportunity to receive an education, the facilities, learning environments, and resources are far behind those of their wealthier counterparts in better neighborhoods.[2] Across the United States, vast efforts have been made to close the achievement gap between minorities and other races; yet this task has proven difficult – “below par achievement of minority students remains one of the most pressing problems in education.”[3]

For example, by age 2 there are already grave disparities between black and white children.[4] Specifically, “fewer black children demonstrate proficiency in developmental skills such as receptive vocabulary, expressive vocabulary, matching, early counting, math, color knowledge, numbers and shapes.”[5] This bleak reality inevitably continues throughout a child’s matriculation through school. Market research shows that every day 7,000 teenagers become high school dropouts, and African Americans are far more likely to drop out than their white counterparts.[6] Studies show that African Americans are more likely to drop out due to grade retention, unstable home environments, and the lack of successful role models within their immediate environments.[7]

 

Educational expectations are lower for black children, according to Child Trends a non-profit and non-partisan research center that tracks data about children.[8] Black parents, most of whom are less educated than their white counterparts, don’t expect their children to attain as much education as white parents expect.[9] Lower expectations become self fulfilling prophecies, contributing to lower expectation from the student, less positive attitudes toward school, fewer out-of-school learning opportunities and less parent-child communication about school.[10]

 

Based on these facts alone, one would assume education is a fundamental right — a right “that has been recognized by the Supreme Court as requiring a high degree of protection for government encroachment.”[11] However, the court in San Antonio Independent School District v. Rodriguez held the contrary.[12] The lawsuit alleged that education was a fundamental right and that those individuals of lesser wealth were a suspect class who were to be protected from wealth based discrimination.[13] The San Antonio Independent School District’s financing system, which was based on local property taxes, disproportionally impacted the education of those students in Edgewood, the poorer minority area. Their parents were not able to contribute the same amount of funds as their wealthier counterparts in primarily white areas of town.[14] The Court, in a 5-4 decision, reasoned that education was not implicitly or explicitly textually present within the Constitution; thus, the traditional standard of review was applied under the equal protection clause (rational basis).[15]  The Court also found the system did not deny educational opportunities to any child.[16]

While the Rodriguez court failed to recognize education as a fundamental right, Justice White dissented on the ground that even though local control of education might be considered a legitimate goal of a school financing system, the means chosen to effectuate that particular goal must be rationally related to achieving that goal.[17] However, the Texas system unconstitutionally discriminated against those parents and children who resided in poorer districts, because those districts had no chance to supplement state funds at the same levels as more affluent districts.[18]

It is apparent that public school systems across the nation are not equal and do not provide the same resources and opportunities, or even the same education for that matter. For example, in 1979, a federal judge ordered two segregated high schools to merge into one, creating Central High School.[19] Central High, located in Tuscaloosa, Alabama, was one of the premiere high schools and integration success stories in the South.[20] Although this was an unpopular move among many, “Central emerged as a powerhouse that snatched up National Merit Scholarships and math-competition victories just as readily as it won trophies in football, track, and golf.”[21] However, the decline of Central High hit when another federal judge released Tuscaloosa City Schools from the court-ordered desegregation mandate that previously governed it.[22] The court reasoned that because Central had successfully achieved integration, the school would be able to manage its own success going forward.[23] However, the court was sadly mistaken. Central High School is no longer the powerhouse it once was; instead, it is a struggling school that serves the city’s poorest students.[24] The school is also 99 percent black – separate and still unequal.[25] “In Tuscaloosa today, nearly one in three black students attends a school that looks as if Brown v. Board of Education never happened.” While Tuscaloosa still has a long way to go, it is not the only city that still has separate and unequal school systems. For many students, a separate and unequal education is the bare reality of every day life.

While America recognizes the importance of education, America has yet to recognize education as a fundamental right. Making education a fundamental right would develop a nation that fully values equal education for all, and not just those from wealthier backgrounds. No matter a person’s socioeconomic status or wealth, they shouldn’t be denied a free “quality” public education. In America, citizens are granted a certain level of autonomy in which a higher education allows for more opportunities. It is no secret that an educated society is a stronger and more equipped society; however, without recognizing education as a fundamental right, the poorest individuals will continue to lag behind their wealthier counterparts in schools that contain little to no resources.

 

 

 

[1] Lindsay Cook, U.S. Education: Still Separate and Unequal, (Jan. 28, 2015), http://www.usnews.com/news/blogs/data-mine/2015/01/28/us-education-still-separate-and-unequal.

[2] Id.

[3] Equipping Education Leaders, Advancing Ideas (2015), http://www.ecs.org/html/issue.asp?issueid=117&subissueID=303.

[4] Id. at 1.

[5] Id. at 1.

[6] Choices Education Group (1985), http://www.choices.org/documents/PrivateDonors.pdf.

[7] Id.

[8] Id.

[9] Id.

[10] Id.

 

[11] LII, https://www.law.cornell.edu/wex/fundamental_right.

[12] San Antonio Indep. Sch. Dist. V. Rodriguez, 411 U.S. 1, 93 S. Ct. 1278 (1973).

[13] Id.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Nikole Hannah-Jones, Segregation Now, (May 2014), http://www.theatlantic.com/magazine/archive/2014/05/segregation-now/359813/.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

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