Monthly Archives: September 2016

“I’m Sorry, We’re Only Giving You Ibuprofen” A Critical Analysis of the Unenforceable Standard of Care in Prison By Ashley Austin

“I’m Sorry, We’re Only Giving You Ibuprofen”

A Critical Analysis of the Unenforceable Standard of Care in Prison

By Ashley Austin

The Eighth Amendment states that “cruel and unusual punishments” shall not be inflicted.[1]  In the past, this phrase had been originally construed to include “proscribing tortures and other barbarous methods of punishment.”[2] Starting in the 1900s, the Supreme Court began interpreting the Eighth Amendment in a more “flexible and dynamic manner.”[3] It has been stated that “(t)he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”[4] Furthermore, cruel and unusual punishment has been expressed as an “unnecessary and wanton infliction of pain.”[5] It was not until 1976 that the Court formally addressed medical treatment of prisoners in the context of the Eighth Amendment.[6]

In Estelle v. Gamble, a landmark 8-1 Supreme Court decision, the Court was tasked with determining under what circumstances withholding or mismanaging medical care constitutes a violation of the Eighth Amendment.[7]  In this case, the Court found that the government has an obligation to provide medical care for those currently incarcerated, stating that “[a]n inmate must rely on prison authority to treat his medical needs; if the authorities fail to do so, those needs will not be met.”[8] By applying Gregg v. Georgia’s standard of “unnecessary and wanton infliction of pain” to the government’s obligation to provide medical care, the Court in Estelle addressed what kind of medical treatment, or lack of medical treatment, could constitute a violation of the Eighth Amendment and result in a 42 U.S.C. §1983 claim alleging a violation of constitutional rights by a government agency.[9] Here, the court refused to consider anything less than “deliberate indifference to serious medical needs” as enough to amount to a constitutional violation.[10] They confirmed that, although prisoners are entirely reliant on the prisons to provide medical care, a simple failure to provide adequate care would not be sufficient to establish a claim.[11] Prisoners are required to allege acts or omissions directly relevant to showing deliberate indifference to medical needs.[12] Even negligence in diagnosing or treating an illness would not amount to a constitutional violation.[13] The Court made clear their view that “medical malpractice does not become a constitutional violation merely because the victim is a prisoner.”[14]

This position, concerned with preventing courts from being overflowed with multiple §1983 claims, stands on the ground that prisoners remain able to challenge negligent medical treatment under state tort claims.[15] This division reserves only the most extreme cases for evaluation in federal court where both knowledge of a medical need and deliberate—or intentional—indifference toward the prisoner’s well-being and leaves every day malpractice to state courts. In a perfect society, this would be an acceptable replacement for challenging individual medical treatment that does not meet the necessary standard of care. However, the modern difficulties of bringing medical malpractice claims prevent prisoners from being able to successfully litigate a claim.

Medical malpractice is a medical professional’s “failure to exercise the same degree of care and skill that [other professionals] of the same medical specialty would use under similar circumstances.”[16] Every state has tort law provisions providing the statutory ability to bring claims against a professional for medical malpractice. However, it is commonly required that a plaintiff present expert testimony to show that the defendant’s treatment failed to meet the statutory standard of care.[17]

Many circuits have held that prisoners are not entitled to post-conviction counsel while incarcerated unless directly related to a conviction appeal.[18] Furthermore, any post-conviction claims brought not directly regarding the appeal of their conviction is considered civil in nature and does not require appointed counsel for indigent individuals, regardless of incarceration. As a result, most §1983 claims and medical malpractice claims brought by prisoners are brought pro se with the only assistance coming from prison self-help litigation manuals and the prison law library. As a pro se litigant, many prisoners are unable to afford to hire attorneys, much less expert witnesses required for successful medical malpractice claims.

Fortunately, there are services available in some states to assist prisoners in post-conviction litigation, either pertinent to their case or to the conditions of confinement. There are very few organizations that represent prisoners on post-conviction civil litigation. Two organizations that specialize in post-conviction representation of prisoners are the Prisoners’ Legal Services of Massachusetts and North Carolina Prisoner Legal Services. However, these organizations are extremely uncommon as many prisoner’s rights organizations do not represent individual clients. The organizations representing individual clients are often only focused on claims of innocence. These groups, commonly called Innocence Projects, are located throughout the United States and focus on proving actual innocence of the convicted through evidence unconsidered at the time of the conviction.

Outside of the discussed procedural barriers to allowing individual inmates to challenge their medical treatment, the standard established in Estelle is unlike many other standards established in constitutional challenges. The dissent in Estelle, authored by Justice Stevens, points out the extremely unique approach the majority takes in reversing the Fifth Circuit’s finding.[19] In the Fifth Circuit, the Court found that Gamble had alleged enough information for a §1983 claim to be brought in reversing the District Court’s dismissal on failure to state a claim.[20] The majority reversed this decision, finding that on the information provided alone, considered in the light most favorable to the plaintiff, was insufficient to establish deliberate indifference. Justice Stevens criticizes the standard established, while agreeing with the conclusion in this case. In his dissent Justice Stevens writes that “whether the constitutional standard has been violated should turn on the character of the punishment rather than the motivation of the individual who inflicted it.”[21] Justice Stevens highlights that, typically, constitutional standards are not concerned with the “indifference” of the individuals violating a right, just simply that the right is violated.

It is on this point that I stand with Justice Stevens. The requirement of establishing deliberate indifference, instead of extreme recklessness or negligence, allows for the mishandling of inmate healthcare to go effectively unchallenged in court. If we are to ask pro se inmate litigants to hire an attorney and expert witnesses to ensure their medical treatment is given to them by the government obligated to care for them, instead of providing pathways for the prisons to be held more accountable, we may as well require prisoners to pay for their own medication.

[1] U.S. Const. amend. VIII.

[2] Gregg v. Georgia, 428 U.S. 153, 169 (1976) (internal citations omitted).

[3] Id. at 170.

[4] Id. at 173 (quoting Trop v. Dulles, 356 U.S. 86, 101 (1958)).

[5] Gregg, 428 U.S. at 173.

[6] Estelle v. Gamble, 429 U.S. 97, 102-03 (1976).

[7] See id.

[8] Id.

[9] Id. at 104.

[10] Id.

[11] Id. at 105 (Here, the court examines Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 464 (1947) and adopts Justice Reed’s argument that an “unforeseeable accident” is not a violation of the eighth amendment.).

[12] See id. at 104 (Examples given include deliberate indifference of the doctors to a medical need, prison guards denying or delaying access to care, or interference with prescribed treatment.).

[13] Id. at 105-06 (stating that “in the medical context, an inadvertent failure to provide adequate medical care cannot be said to constitute “an unnecessary and wanton infliction of pain” or to be “repugnant to the conscience of mankind.”).

[14] Id. at 106.

[15] Id. at 107. (stating that “[a] medical decision not to order an X-ray, or like measures, does not represent cruel and unusual punishment. At most it is medical malpractice, and as such the proper forum is the state court under the Texas Tort Claims Act.”)

[16] Black’s Law Dictionary (10th ed. 2014).

[17] See, e.g., Lightsey v. Bessemer Clinic, 495 So.2d 35 (Ala. 1986); Curtis v. Santa Clara Valley Med. Ctr., 2 Cal.Rptr.3d 73 (Cal. Ct. App. 2003); Berk v. St. Vincent’s Hosp. and Med. Ctr., 380 F. Supp. 2d 334 (S.D.N.Y. 2005); White v. Vanderbilt Univ., 21 S.W.3d 315 (Tenn. Ct. App. 1999).

[18] See, e.g., U.S. v. Webb, 565 F.3d 789 (11th Cir. 2009); U.S. v. Legree, 205 F.3d 724 (4th Cir. 2000); U.S. v. Reddick, 53 F.3d 462 (2d Cir. 1995).

[19] Estelle, 429 U.S. at 109 (Stevens, J., dissenting).

[20] See Gamble v. Estelle, 516 F.2d 937, 941 (5th Cir. 1975), rev’d, 429 U.S. 97 (1976).

[21] Estelle, 429 U.S. at 116 (Stevens, J., dissenting).

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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.

[20]Id.

[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.

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