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

The Battle for the Living Wage Comes to Alabama 

By

Shruti Jaishankar

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

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

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

[3] Id.

[4] Id.

[5] Id. at 9

[6] Id.

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

[8] Id.

[9] Id.

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

[11] Id.

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

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

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

[15] Id.

[16] Id.

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

[18] Id.

[19] Id.

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

[21] Id.

[22] Id.

Beyond Doctors and Lawyers: The Broad Reaching Impact of Occupational Licensure on Social Mobility by Jennifer Huddleston

Beyond Doctors and Lawyers: The Broad Reaching Impact of Occupational Licensure on Social Mobility by Jennifer Huddleston

America was founded on an individual’s rights to life, liberty, and the pursuit of happiness. However, if your pursuit of happiness includes employment in many fields or being an entrepreneur and opening your own business, then that pursuit is often burdened by occupational licensure laws. Such laws regulate not only highly skilled professions like accountants, doctors, and lawyers, but far more common professions that do not require advanced degrees like florists, hair braiders, and tour guides.[1] The number of occupations requiring licensure has grown exponentially in recent years. In 1950 only 5% of the workforce required a license, while in 2008 over 25% of workers were subject to state licensure laws.[2]  Additionally, the requirements for licensure are not always commiserate with the level of education necessary for the occupation nor are they related to the actual danger posed to the public.[3]

Due to the initial expense of the actual license and the requisite training and testing, such licensure laws disproportionately impact minorities and create additional barriers to entry for those at lower incomes.[4] As a result, such laws have begun to draw criticism from both the left and the right seeking to improve their status.[5] Even the White House recently examined the negative impact of occupational licensure laws and the burden they place on those attempting to succeed.[6] Despite this turn in academic and executive support, states continue to pass licensing laws that create additional burdens on those attempting to gain new opportunities.[7]

Licensing laws create barriers to entry for marginalized groups in a variety of ways. In some cases, licensing laws were initially enacted to prevent minorities from entering certain professions and continue to protect incumbents in the industry.[8] But even those not created for such reasons, often have disproportionate impacts. Typically someone seeking a license for an occupation must pay a fee of an average of $209, pass an exam, and complete at least nine months of training, and although specific requirements range between states and occupations, these requirements can place burdens on those seeking to transition to a profession.[9] Additionally, once obtained such licenses are typically not transferable between states placing greater burdens on those who cannot economically afford to maintain multiple licenses.[10] Many states also ban those with criminal convictions from obtaining licenses creating yet another barrier for former offenders seeking employment upon re-entry.[11] Additionally, the high price of civil penalties for those who violate licensure again penalizes lower income entrepreneurs more than others.[12] Many occupations such as hair-braiding and eyebrow threading are passed down in communities rather than learned through formal training.[13] Finally, licensure boards and licensing decisions are often made by those already licensed in the profession creating an incentive to make licenses more difficult to obtain and keep competition low.[14]

Not only does occupational licensure prevent social mobility, it fails to meet the state promoted goals of increased safety and often have negative impacts on both providers and consumers. One study found that licensure requirements have at best no impact on service quality and sometimes even have a negative impact on the quality.[15] Licensing requirements keep new and innovative entrants out of the market and may even decrease the overall labor force.[16] The White House found that licensure requirements increased the price of a service.[17] In at least one case, the licensing agency could not point to any injuries that had occurred as a result of the occupation.[18] Furthermore, the education and licensure requirements are often broadly constructed and therefore may not be relevant to all those in the profession. For example, until recently eyebrow threaders in Texas were required to obtain cosmetology licenses following a curriculum and testing that never discuss threading techniques.[19]

Licensure for some occupations dates back to the American founding and the courts have often upheld such regulations in the state’s police powers or promotion of the general welfare.[20] Until recently, because of Supreme Court precedent originally established in Williamson v. Lee Optical, individuals had little recourse against restrictive licensing laws given the holding such laws violated neither the Due Process or Equal Protection clauses.[21] States were further empowered to use occupational licensure laws by the Court’s statement, “It is for the legislature, not the courts, to balance the advantages and disadvantages of the new requirement.”[22] Yet, recently the courts have become the ally of individual rights against these increasingly restrictive requirements of occupational licensure. The Sixth, Tenth, and Federal Circuit have struck down occupational licensure requirements viewed as overly burdensome against the likes of tour guides and casket sellers.[23] The Texas Supreme Court vocally struck down regulation of eyebrow threaders.[24] And even the Supreme Court has signaled that licensing boards may not have the extremely broad discretion to create regulations that they once enjoyed.[25] Hopefully, this is the beginning of an emerging trend in favor of individual liberty and a shift away from over regulation of an individual’s right to earn a living and become an entrepreneur.

[1] See Morris M. Kleiner, Why License a Florist?, New York Times, May 28, 2014, at A35, available at http://www.nytimes.com/2014/05/29/opinion/why-license-a-florist.html?_r=0.

[2]Mike Lee, Rise of the Licensing Cartel, Forbes (Feb. 1, 2016) http://www.forbes.com/sites/realspin/2016/02/01/rise-of-the-licensing-cartel/#7b14f99276fe

[3] Dick M. Carpenter II et. al., License to Work: A National Study of the Burdens from Occupational Licensing, Institute for Justice, May 2012, available at http://ij.org/report/license-to-work/.

[4] See Dept. of Treas. Office of Econ. Pol’y et al., Occupational Licensing: A Framework for Policymakers, The White House, July 2015, https://www.whitehouse.gov/sites/default/files/docs/licensing_report_final_nonembargo.pdf.

[5] E.g., Carpenter, supra note 2; Edward Rodrigue and Richard V. Reeves, Four Ways Occupational Licensing Damages Social Mobility, Brookings (Feb. 24, 2016) http://www.brookings.edu/blogs/social-mobility-memos/posts/2016/02/24-occupational-licensing-opportunity-hoarding-reeves.

[6] Dept. of Treas. Office of Econ. Pol’y et al., supra not 4.

[7] See, e.g., Lee, supra note 2.

[8] See David E. Bernstein, Licensing Laws: A Historical Example of the Use of Government Regulatory Power Against African Americans, 31 San Diego L. Rev. 89, 90 (1994).

[9] Carpenter, supra note 3, at 16.

[10] See Rodrigue, supra note 5.

[11] See id.

[12] See Carpenter, supra note 3.

[13] E.g., Texas Eyebrow Threading, Institute for Justice, http://ij.org/case/patel-v-tx-department-of-licensing-and-regulation/.

[14] See Nicola Perisco, The Political Economy of Occupational Licensing Associations, 31 J.L. Econ. & Org. 213, 213 (2015).

[15] Lee, supra note 2.

[16] Morris M. Kleiner, Reforming Occupational Licensure Policy, The Hamilton Project, March 2015, available at http://www.brookings.edu/~/media/research/files/papers/2015/03/11-hamilton-project-expanding-jobs/thp_kleinerdiscpaper_final.pdf.

[17] Dept. of Treas. Office of Econ. Pol’y et al., supra note 4.

[18] See Texas Eyebrow Threading, supra note 13.

[19] See Complaint at ¶ 12-13, Patel v. Texas Dept. of Licensure & Regulation, No. D-1-GN-09-0004118 (Tex. Dist. 2009).

[20] See Mark T. Law & Mindy S. Marks, Effects of Occupational Licensure: Evidence from the Progressive Era, 52 J.L. & Econ 351, 357 (2009).

[21] 348 U.S. 483, 485-86 (1955).

[22] Id. at 487.

[23] See Edwards v. District of Columbia, 755 F.3d 996 (D.C. Cir. 2014); Powers v. Harris, 379 F.3d 1208 (10th Cir. 2004); Cragimiles v. Giles, 312 F.3d 220 (6th Cir. 2002).

[24] Mark Joseph Stern, Texas Could Become an Even More Dangerous Place, Slate.com (Jul. 7, 2015) http://www.slate.com/articles/news_and_politics/jurisprudence/2015/07/texas_supreme_court_strikes_down_eyebrow_threading_regulations_return_to.html.

[25] See N.C. Bd. Of Dental Exam’rs v. FTC, No. 13-554, 2014 U.S. LEXIS 1710 (2014).

Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action” Jadie Mims

Immigration Policy at Home—United States v. Texas and the Bounds of “Executive Action”

Jadie Mims

 

 

In an effort to reform the current, admittedly dysfunctional, United States immigration policy, President Barack Obama in November 2014 announced a plan to develop methods for receiving, documenting, and eventually legalizing large numbers of immigrants.[1] Sharing his mounting frustration with the refusal of a Republican-led House of Representatives to even allow a vote on a bipartisan bill which had already passed in the Senate, the President announced three separate initiatives under which he would attempt to bypass traditional legislative means to alter our immigration landscape.[2] The first and second of these proposals—promising to bolster security at the southern border in an effort to combat illegal immigration from Mexico and South America, while making it easier for “high-skilled immigrants” to come to the country legally—have not been as harshly criticized as the third. In what would eventually provide the basis for an important immigration case before the Supreme Court this term,[3] the President’s third initiative explicitly committed to “take steps to deal responsibly with the millions of undocumented immigrants who already live in our country.”[4]

The practical implication of this third action would essentially allow undocumented immigrants meeting two criteria—“they have children who are U.S. citizens or lawful permanent residents… and they have been in the United States at least since January 2010—to apply for a program that would allow them to stay in the country for three years and work here legally.”[5] However, this policy has never been implemented.[6] Instead, the State of Texas (along with twenty-five other states) sued in federal court, asking a federal trial court judge to enjoin the application of the law.[7]

The central legal issue began as a question of whether President Obama had the authority to institute such a program, or if doing so would be an excessive breach of his executive power.[8] Following trial last year, district judge Andrew S. Hanen (S.D. Tex.) determined that the President’s action was excessive, and ultimately issued an order enjoining the implementation of the President’s “removal priorities.”[9] In striking the action, Judge Hanen framed the program as one “designed to provide legal presence to over four million individuals who are currently in the country illegally… enabl[ing them] to obtain a variety of both state and federal benefits.”[10] On appeal to a three-judge bench of the Fifth Circuit Court of Appeals, Judge Jerry E. Smith—writing for the 2-1 majority—elected to affirm the district court.[11] The United States petitioned to the Supreme Court in November 2015 for a writ of certiorari,[12] which the Court granted in January 2016.[13] Arguments will “almost certainly” be presented before the Court in later April 2016.[14]  Though there are four questions before the Court in total, only one is truly important to our immigration inquiry for purposes of this note—again, the question answered by both lower courts in the affirmative as to whether the Obama administration had breached its authority in its issuance of the proposed immigration policy.[15]

As noted by the Fifth Circuit’s majority, “[i]n specific and detailed provisions, the [Immigration and Nationality Act of 1965] expressly and carefully provides legal designations allowing defined classes of aliens to be lawfully present and confers eligibility for ‘discretionary relief allowing [aliens in deportation proceedings] to remain in the country.’”[16] The majority thus believes that Congress holds the power—not the President or Executive Branch—to determine what distinct classes of people should be deemed lawful and unlawful.[17]Alternatively, the dissenting judge argued that, because the DHS is only granted an annual appropriation of about 3.5 percent of what it would cost to actually remove undocumented immigrants from the country, the agency is in fact forced to prioritize what it will and will not pursue.[18] By this logic, the deferred action decisions would be nothing more than “quintessential exercises of prosecutorial discretion”—not an unconstitutional breach of the President’s executive power.[19]

Though the administration concedes that it is the duty of the legislature to create immigration law,[20] it claims Congress “has given the executive branch discretion to make decisions about immigration and deportation, including who gets to stay in the country.”[21] Aligning with the Fifth Circuit’s dissent, it asserts that because existing immigration law subjects such a huge number of undocumented immigrants to potential deportation, the insignificant scope of the DHS appropriation is in itself a “tacit acknowledgement by Congress of the executive branch’s discretion to prioritize which immigrants should be deported.”[22] The States, on the other hand, argue that “Congress intended for that discretion to be exercised on a case-by-case basis, rather than by enacting a sweeping policy that will allow four million people to stay in the country and work here.”[23]

As the administration argued in its petition for a writ of certiorari,[24] the Court’s refusing to hear arguments on this case would have had far-reaching implications. Now, with the petition granted and the case soon heading into arguments before the Court, it is readily apparent that an affirmation of the lower courts’ ruling would have the same effect. Upholding the nationwide injunction against the enforcement of President Obama’s proposed immigration plan “bars approximately 4 million parents—who have lived in this country for years, would pass a background check, are not priorities for removal, and have ‘a son or daughter who is a U.S. citizen or lawful permanent resident’—from requesting deferred action… and receiving authorization to work lawfully.”[25]

The reality of the situation is this: despite the States’ argument (and the lower courts’ politically-motivated affirmation[26]) that the Obama administration is overstepping its legal authority in pushing this change in immigration policy, Congress’s significant underfunding of DHS’s effort to deport undocumented immigrants necessitates a line being drawn between those immigrants that should be allowed to stay in the country and those that should not. As the Court recently explained in Arizona v. United States, “[a] principal feature of the removal system is the broad discretion exercised by immigration officials.”[27] Congress chose to allow the DHS discretion in choosing how to allocate its lump-sum appropriation,[28] and the President’s setting forth a plan for how the Department could best utilize that money is not an abuse of his executive power. This is outlined in detail in Judge King’s dissent to the Fifth Circuit opinion,[29] and should be apparent to the Court in the upcoming months. Being the more sensible—and again, less politically motivated—view, I believe the eventual result should be to overturn the Fifth Circuit’s affirmation of the district court’s imposed injunction.

 

 

[1] Barack Obama, U.S. President, Address to the Nation on Immigration, (Nov. 20, 2014), available at https://www.whitehouse.gov/the-press-office/2014/11/20/remarks-president-address-nation-immigration

[2] Id.

[3] United States v. Texas, No. 15-674 (U.S. Supreme Court)

[4] Obama, supra note 1.

[5] Amy Howe, Court will review Obama administration’s immigration policy: In Plain English, SCOTUS Blog (Jan. 19, 2016, 4:39 PM), http://www.scotusblog.com/2016/01/court-will-review-obama-administrations-immigration-policy-in-plain-english/

[6] Id.

[7] Id.

[8] Id.

[9] Texas v. United States, 86 F. Supp. 3d 591, 677 (S.D. Tex. 2015).

[10] Id. at 604.

[11] Texas v. United States, 809 F.3d 134 (5th Cir. 2015).

[12] Petition for Writ of Certiorari for Defendant-Petitioners [hereinafter Petition for Writ of Certiorari], United States v. Texas (2015) (No. 15-674).

[13] Howe, supra note 6.

[14] Id.

[15] See Id.

[16] See Texas v. United States, 809 F.3d 134 at 179 (quoting Arizona v. United States, 132 S. Ct. 2492, 2499 (2012)).

[17] See Id at 165-167.

[18] Id. at 191.

[19] Id. at 189.

[20] See Petition for Writ of Certiorari, supra note 12 at 2 (quoting Truax v. Raich, 239 U.S. 33, 42 (1915), that “the ‘authority to control immigration * * * is vested solely in the Federal Government.’”).

[21] Howe, supra note 5.

[22] Id.

[23] Id.

[24] See Petition for Writ of Certiorari, supra note 12.

[25] Id. at 33.

[26] See Ed Kilgore, It’ll Get Worse Before It Gets Better on Immigration Actions, Washington Monthly (Apr. 13, 2015), http://www.washingtonmonthly.com/political-animal-a/2015_04/itll_get_worse_before_it_gets055065.php

[27] 132 S. Ct. at 2499 (2012).

[28] See Petition for Writ of Certiorari, supra note 12 at 4.

[29] See Texas v. United States, 809 F.3d at 189.

Growing American Islamophobia in the Wake of the Syrian Civil War By Shruti Jaishankar

Growing American Islamophobia in the Wake of the Syrian Civil War

By

Shruti Jaishankar

The Syrian Civil War has raged for approximately four years now, as the conflict arose as a part of the Arab Spring movement that swept the Middle East. While policymakers and pundits alike have ruminated on how best to contain the region, the question of what to do with the millions of displaced Syrian citizens has come secondary.

Until recently. The body of three-year-old Aylan Kurdi, a Syrian refugee fleeing with his family to the Greek island of Kos, provided fodder for a renewed debate on how to protect the innocent. Though the Kurdis had been living in Turkey for three years after they escaped Syria, the family cites Western states’ reluctance to provide safe passage for refugees as part of the reason for the tragedy.[1] Sadly, the Kurdis are not an unusual story; around 2,700 refugees have perished while trying to cross the Mediterranean, and as many as 200 have died in one trip.[2] Approximately 12 million Syrians have been displaced from their homes, creating a crisis as they flood into neighboring countries, Europe, and eventually the Western hemisphere.[3]

European nations are quickly becoming overwhelmed by the influx of refugees, and some have resorted to erecting stringent border controls in response. These border controls and the hostility they represent are problematic, as refugees are entitled to certain basic protections set out in the 1951 Refugee Convention.[4] Under the convention refugees are given the opportunity to apply for political asylum, and may not be sent back to the country that endangered their lives in the first place.[5] As long as a refugee can prove that they are fleeing a hostile or volatile situation, such as a civil war, they must be afforded these basic protections. Border controls and unnecessary bureaucratic structures hinder the spirit of the 1951 convention.

Though many European nations may not have the political or economic infrastructure to support the deluge of refugees, the United States has no such defense. In the four years since the Syrian Civil War broke out, the United States has only accepted about 1,500 Syrian refugees.[6] This is due in part to the additional bureaucratic hurdles that refugees must surmount in order to seek asylum in the United States. Unlike in Europe, the State Department must first vet a select number of refugees before they make seek asylum in the United States.[7] The vetting process is extensive: they must be screened by the National Counter Terrorism Center, the FBI Terrorist Screening Center, and by the Departments of Homeland Security and Defense.[8] Though President Obama has pledged to accept up to 10,000 Syrian refugees in the upcoming fiscal year, that number is not nearly enough and the process will be slow and painful considering the bureaucratic red tape these refugees must first navigate.[9]

The bureaucratic impediments in both Europe and the United States are admittedly due to national security concerns, but are also symptomatic of a larger problem – rampant and unchecked Islamophobia. Before the attacks on the World Trade Center, the United States offered asylum to hundreds of thousands of refugees. During the era of the Vietnam War, the United States took in almost 300,000 refugees over a span of two years from the ravaged area.[10] A few years later, the United States would take in more than 100,000 refugees from Cuba.[11] However, since September 11, 2001, the US has shown a marked reluctance to welcome refugees from the Middle East, reducing the number of immigrants allowed into the country from the hundreds of thousands to about 20,000.[12] The United States sees these refugees as potential terrorists first, and as displaced families fleeing from violence last. The Islamophobia problem has grown so serious in the United States that it has resulted in a 14-year-old-boy being arrested for bringing a homemade clock to school because of its supposed resemblance to a bomb.[13] A leading GOP presidential candidate even declaimed that a Muslim cannot be president of the United States.[14] Ahmed Mohamed and the refugees from Syria share “that menacing brownish color that racists and bigots associate with…. Some country they probably think is called Terroristan.”[15]

Neither the Syrian Refugee Crisis nor the instability in the Middle East have an obvious solution, but the United States and other developed countries can do the most immediate good by relaxing barriers to entry for refugees. Doing so may not curb Islamophobia in the United States, but at least will prevent more senseless deaths like Aylan Kurdis.

[1] Helena Smith, Aylan Kurdi: Friends and Family Fill in Gaps Behind Harrowing Images, The Guardian (Sept. 3, 2015), http://www.theguardian.com/world/2015/sep/03/refugee-crisis-friends-and-family-fill-in-gaps-behind-harrowing-images

[2] Zack Beauchamp, The Syrian Refugee Crisis, Explained in One Map, Vox Magazine, (Sept. 27, 2015), http://www.vox.com/2015/9/27/9394959/syria-refugee-map

[3] Id.

[4] Somini Sengupta, Migrant or Refugee? There is a Difference, with Legal Implications, The New York Times (Aug. 27, 2015), http://www.nytimes.com/2015/08/28/world/migrants-refugees-europe-syria.html?action=click&contentCollection=Middle%20East&module=RelatedCoverage&region=Marginalia&pgtype=article

[5] Id.

[6] Gardiner Harris, David Herszenhorn, and David E. Sanger, Obama Increases Number of Syrian Refugees for U.S. Resettlement, The New York Times, (Sept. 10, 2015), http://www.nytimes.com/2015/09/11/world/middleeast/obama-directs-administration-to-accept-10000-syrian-refugees.html

[7] Sengupta supra note 4.

[8] Harris, Herszenhorn, and Sanger supra note 6 at 1.

[9] Id.

[10] Id.

[11] Id.

[12] Id.

[13] Haroon Moghul, Stand with Ahmed Against Islamophobia, Cnn, (Sept. 16, 2015), http://www.cnn.com/2015/09/16/opinions/moghul-islamophobia-america/

[14] Nick Gass, Ben Carson: America’s President Can’t Be Muslim, politico (Sept. 20, 2015), http://www.politico.com/story/2015/09/ben-carson-muslim-president-213851

[15] Id.

Equal Protection and Sentencing Disparities between Rock and Powder Cocaine By Katie Davi

Equal Protection and Sentencing Disparities between Rock and Powder Cocaine

 

By

Katie Davis

Nearly one-third of all African-American men between the ages of twenty to twenty-nine are either incarcerated, on parole, or on probation on any given day.[1] The increase in incarceration for young African-American males can be traced back to the “War on Drugs.”[2] The number of African-American and minority inmates increased twice as much as the number of white inmates, and the number of African-American arrests for drug offenses was ten times that of white offenses between 1986 and 1990.[3] This is especially significant because young African-American men compromised only about 13% of monthly drug uses during this time frame.[4] These results can be traced back to federal drug sentencing legislation that differentiated between the two forms of cocaine.[5] Since rock cocaine and powder cocaine are prevalent in different communities, different sentences were issued for the possession of cocaine. As African-Americans quickly realized, they were being punished much worse than their white counterpart. The Equal Protection clause of the United States Constitution has failed to make sure all citizens are treated fairly under the law.

When a law treats two equally situated persons differently based on arbitrary distinctions, the Equal Protection clause has been violated.[6] However, “equal protection does not require that all persons be dealt with identically” but “it does require that a distinction made have some relevance to the purpose for which the classification is made.[7]

A substance derived from the coca plant, cocaine produces both euphoric and stimulant effects.[8] Powder cocaine is a salt, scientifically known as cocaine hydrochloride; while rock cocaine, a hard waxy substance, is made with the cocaine alkaloid but without the hydrochloride.[9] By heating it in water and mixing it with baking soda, powder cocaine can be easily made into rock cocaine.[10] A pound of powder cocaine roughly equals a pound of rock cocaine.[11] Powder cocaine is often inhaled through the nose, but it may also be mixed with water and injected.[12] Dissolving powder cocaine and baking soda in boiling water forms crack cocaine.[13] The resulting “rocks” are single doses that users smoke.[14] In both forms, cocaine is a very powerful stimulant.[15]

Although cocaine was commonly and routinely used for medicinal purposes, linking the drug to African-Americans created a fear that it would cause a rebellion that ended with an attack on white society.[16] Notwithstanding the evidence that proved otherwise, white leaders in the south claimed that cocaine would cause the African-Americans to forget their “place” within their segregated society.[17] Since this continued to fuel the public’s fear, African-Americans were presented as cocaine abusers within the media; this encouraged white America to favor criminalizing the drug in an effort to control the “Black threat.[18]

It was during the 1970s that the use of powder cocaine skyrocketed, mainly within affluent White communities.[19] However, the media did not portray this usage as a problem.[20] Crack in the form that has been constantly demonized within our society, and it is consistently associated with the inner-city and minority users.[21] Statistics collected by the federal government reveal a large correlation between ethnicity and preference for crack or powder cocaine.[22]

Commencing in the 1980’s, the “War on Drugs” caught the nation by storm.[23] With this declaration came legislation and controversy.[24] As the legislature attempted to control this “war,” practical problems have led to a racial disparity within the implementation of the guidelines.[25]  The early 1980s brought with it the buying and selling of crack cocaine.[26] During the 1980s, news stations declared a nationwide crack cocaine epidemic.[27] Fear came from a concern that the use of the drug was spreading outside of the minority groups and threatening white neighborhoods.[28]

This public outcry persuaded Congress to pass the Anti-Drug Abuse Act of 1986, in which a 100:1 ratio of crack versus powder was established.[29]  As demonstrated, a defendant convicted of simple possession of five grams of crack was subject to the mandatory minimum sentence of five years in prison, while a defendant convicted of possessing five hundred grams of powder cocaine was also subject to the same five-year sentence.[30] The 100:1 ratio was established based on five reasons: “crack was highly addictive; users and dealers were more likely to be violent than users and dealers of other drugs; it was more harmful to users than powder; crack use was especially prevalent among teenagers; and crack’s potency and low cost were making it increasingly popular.[31]

These rationales were proven to be untrue.[32] The United States Sentencing Committee conducted many reports after the 1986 act was passed and found that both forms of cocaine have the same physiological and psychotropic effects.[33] The Sentencing Committee also found that the 100:1 ration “’fosters disrespect for and lack of confidence in the criminal justice system’ because of a ‘widely-held perception’ that it ‘promotes unwarranted disparity based on race.[34]’”

President Barack Obama signed the Fair Sentencing Act of 2010 on August 3, 2010 in an

effort to reduce the disparity between sentences of crack and powder cocaine.[35]  Although this act lessens, it does not completely eliminate the disparity between crack and powder cocaine.[36] This act changed the mandatory quantity from five grams to twenty-eight grams of crack cocaine to trigger the five-year mandatory sentence.[37] Since the amount of powder needed to activate the mandatory sentence stayed the same, the cocaine ratio was then reduced to 18:1.[38]

Even though this new legislation lessened the disparity, it still did not resolve the problem. The Equal Protection clause of the United States Constitution was created to assure all individuals were treated equally under the law. African-American defendants have challenged the constitutionality of this legislation and the sentencing disparity in almost every federal circuit by asserting a violation of their rights of equal protection under the laws.[39]  Unfortunately, almost all federal courts have rejected this argument by explaining that the defendants have failed to prove purposeful discrimination from sentencing disparities.[40] For a litigant claiming an equal protection violation regarding the disparity of cocaine sentencing, the Court has made clear that he must show more than the foreseeability of disproportionate impact; he must show that the decision maker “selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of’ its adverse affects upon an identifiable group.”[41] Continuing to allow two different sentences for the same drug only furthers this discriminatory effect. Despite its intention, the Equal Protection Clause has failed to serve its purpose, as African-Americans will continue to be subjected to different treatment if this disparity is not corrected.

 

 

[1] David H. Angeli, A “Second Look” at Crack Cocaine Sentencing Policies: One More Try for Federal Equal Protection Government, 34 Am. Crim. L. Rev. 1211, 1211 (1997).

[2] Knoll D. Lowney, Smoked Not Snorted: Is Racism Inherent in Our Crack Cocaine Laws? 45 Wash. U. J. Urb. & Contemp. L. 121, 130 (1994).

[3] David Cole, The Paradox of Race and Crime: A Comment on Randall Kennedy’s “Politics of Distinction,” 83 Geo. L. J. 2547, 2556 (1995).

[4] Angeli, supra note 1, at 1212.

[5] Id.

[6] Laura A. Wytsma, Punishment for “Just Us” – A Constitutional Analysis of the Crack Cocaine Sentencing Statutes, 3 Geo. Mason Independent L. Rev. 473, 490 (1995).

[7] Baxstrom v. Herold, 383 U.S. 107, 111 (1966).

[8] Paul M. Gahlinger, Illegal Drugs: A Complete Guide to Their History, Chemistry, Use, and Abuse 253 (2004).

[9] David A. Sklansky, Cocaine, Race, and Equal Protection, 47 Stan. L. Rev. 1283, 1290 (1995).

[10] Id.

[11] Id.

[12] Kimbrough v. U.S., 552 U.S. 85, 94 (2007)

[13] Id.

[14] Id.

[15] Id.

[16] Kathleen R. Sandy, The Discrimination Inherent in America’s Drug War: Hidden Racism Revealed By Examining the Hysteria Over Crack, 54 Ala. L. Rev. 665, 677-678 (2003).

[17] Id. at 679.

[18] Id. at 680.

[19] Id. at 681.

[20] Craig Reinarman & Harry G. Levine, Crack in Context: Politics and Media in the Making of a Drug Scare, 16 Contemp. Drug Probs. 535, 540 (1989).

[21] Id. at 539.

[22] Lowney, supra note 2, at 146.

[23] Andrew Sacher, Inequalities of the Drug War: Legislative Discrimination on the Cocaine Battlefield, 19 Cardozo L. Rev. 1149, 1149 (1997).

[24] Id.

[25] Id. at 1155.

[26] Sklansky, supra note 9, at 1291.

[27] Alyssa L. Beaver, Getting a Fix on Cocaine Sentencing Policy: Reforming the Sentencing Scheme of the Anti-Drug Abuse Act of 1986, 78 Fordham L. Rev. 2531, 2539 (2010).

[28] David F. Musto, The American Disease 245 (expanded ed. 1987).

[29] Tyler B. Parks, The Unfairness of Fair Sentencing Act, 42 U. Mem. L. Rev. 1105, 1114 (2012).

[30] Hyser, Sarah, Two Steps Forward, One Step Back: How Federal Courts Took the “Fair” out of the Fair Sentencing Act of 2010, 117 Penn. St. L. Rev. 503, 508-509 (2012).

[31] Kimbrough, 552 U.S., at 95-96.

[32] Parks, supra note 29, at 1114.

[33] Kimbrough, 522 U.S., at 94.

[34] Kimbrough, 552 U.S., at 98 (quoting 2002 COCAINE AND FEDERAL SENTENCING POLICY).

[35] Parks, supra note 29, at 1106.

[36] Hyser, supra note 30, at 505.

[37] Parks, supra note 29, at 1113.

[38] Id.

[39] Angeli, supra note 1, at 1214.

[40] Id. at 156-17.

[41] Pers. Adm’r of Mass. v. Feeny, 442 U.S. 256, 279 (1979).

Immigration Exclusion Déjà vu By Siqin Wang

Immigration Exclusion  Déjà vu

By

Siqin Wang

Republican presidential front-runner Donald Trump called for a total and complete shutdown of Muslims entering the United States until the country’s representatives can “figure out what is going on.”[1] The controversial ban proposed by Trump would apply “not just to Muslim foreigners looking to immigrate to the U.S., but also to Muslims looking to visit the U.S. as tourists.”[2] Trump’s proposal to exclude a class of people based on their religion is nothing more than putting new wine in old bottles—the rhetoric surrounding exclusionary immigration measures based on religion or national origin has been sporadically spread through American history.[3] This dangerous proposal is only a first cousin to one of the most significant and shameful discriminatory acts in American history—The Chinese Exclusion Act of 1882.[4]

In 1882, one of the most significant restrictions on free immigration in the US history—The Chinese Exclusion Act—was passed.[5] The act, persisting for 60 years together with later more restrictive immigration acts, continuously excluded all ethnic Chinese persons and those arriving from a defined “Asiatic Barred Zone.”[6] Although the reasons for the 19th century’s Chinese-exclusion policy and the proposal for a 21st century anti-Muslim policy are not substantially the same, the analysis of the former can help better understand the latter. The hatred against Chinese people behind the exclusion act was threefold.[7] Economically, Industrialists’ enthusiastic welcome of Chinese labor increased American labor’s antipathy toward the Chinese, and the fear of losing jobs and opportunities attracted middle- as well as working-class Americans to the campaign of restriction.[8] Racial anxieties also played an important role in the passing of the act.[9] American’s sense of racial superiority and the prevailing mistaken concept of the “coolie trade” as a “modern system of slavery”  supposedly justified the exclusion.[10] Finally, the insurmountable cultural differences boosted the finalization of the act.[11] The belief that Chinese were biologically incapable of being assimilated into the American way of life, and therefore posed a serious threat to American institution, exacerbated the agitation.[12] While Trump’s main theory of Muslim exclusion was based on concerns of terrorism, arguably it is really just rhetoric that tied national security with religious discrimination.[13] Isn’t it the same act of vilifying entire group of people because it is politically or economically expedient?[14] The proposal simply projects the hatred and fear towards certain groups of Islamic extremists to the entire Muslim population. Refined and backup by the sensational reasons, this dangerous proposal worked its way through the national primaries of 2015-16 and has won tremendous supports from a portion of the Republican voting base.[15] The concern that this discriminatory proposal will come into being as a dormant monster rewoken is not completely unrealistic.[16] No matter whether the proposed Muslim-exclusion policy can be justified, the final issue is whether there is any legal resort for Muslims to challenge the decision of exclusion.

Historically, the U.S. Supreme Court has taken a hands-off approach when the political branche’s immigration decisions and policymaking are in question.[17] The plenary power of the political branch over immigration issues refers to the ability of Congress and the executive branch to regulate immigration largely without judicial intervention.[18] The court has based its attitude towards immigration issue on political-question doctrine, lack of capacity, uniformity, and efficiency.[19] The Supreme Court further recognizes the inherent federal power to prohibit the entry into its territories of the people of foreign states.[20]  In Chae Chan Ping v. United States, the Court held that the government which exercised for protection and security is clothed with authority to determine who to enter the country, and its determination is conclusive on the judiciary.[21] Due Process rights are a dead end for non-citizens who are declined entry.[22] According, the Court in Nishimura Ekiu v. United States, “the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.[23] Even in a case of American citizens, because exclusion is treated by the Supreme Court as an administrative procedure, the exclusion is not in violation of Due Process as long as the determination of exclusion is not manifestly unfair.[24] With the plenary power of the government, judicial review is not really a solution to the exclusion policy. Although in Nguyen v. INS, the Supreme Court’s reasoning signals a possible retreat from the plenary power justifications for non-action, it did not affirmatively recognize that judicial review can override plenary power. [25] In another case, Zadvydas v. INS, the Supreme Court arguably took a step closer to abandoning plenary power, but the holding was limited in scope and legislation that came about as a result of the 9/11 attacks reinvigorated the plenary power doctrine.[26] Most importantly, in Zadvyda the Court explicitly stated terrorism or other special circumstances can be a valid argument for heightened deference to the judgments of the political branches with respect to matters of national security.[27] As long as the plenary power doctrine rules over the issue of immigration exclusion, Due Process and Equal Protection arguments are not as powerful in this area as for example, in the civil rights context.

Conclusion

“The great thing about humanity is that we have the opportunity to learn from our mistakes.”[28] 130 years after the passage of the Chinese Exclusion Act, Congress passed two bills expressing regret for the persecution and suffering of Chinese-Americans.[29] In 2014, the California Legislature further passed measures that formally recognize the many proud accomplishments of Chinese-Americans in California and apologize to the families that were split-up by the exclusion act.[30] 130 years it takes for people to recognize their mistake. Hopefully, 130 years from now Congress will not be making a similar apology, not to Southeast Asians, but Muslims excluded under a new wave of xenophobia.

[1] Jeremy Diamond, Donald Trump: Ban all Muslim travel to U.S., CNN (December 8, 2015), http://www.cnn.com/2015/12/07/politics/donald-trump-muslim-ban-immigration/

[2] Id.

[3] Yanan Wang, Muslims are to Trump as the Chinese were to President Arthur in 1882, The Wash. Post (Dec. 8, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/12/08/muslims-are-to-trump-as-the-chinese-were-to-president-arthur-in-1882/

[4] 158 Cong. Rec. H 3715, 3715 (2012).

[5] Id.

[6] Yanan Wang, supra note 3 “The Immigration Acts of 1917 and 1924 excluded all classes of ethnic Chinese and further banned all visa types for arrivals from a defined ‘Asiatic Barred Zone’ which included India, Afghanistan, Persia (modern-day Iran), Arabia, Southeast Asia, the Asian-Pacific Islands as well as parts of the Ottoman Empire and Russia.”

[7] See Lucy E. Salyer, Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law, 10-12 (1995).

[8] Id. at 10.

[9] Yanan Wang, supra note 3; see Allegra M. McLeod, The U.S. Criminal-Immigration Convergence and Its Possible Undoing, 49 Am. Crim. L. Rev. 105 (2012).

[10] Lucy E. Salyer, supra note 7, at 10-11 (Under coolie system, ).

[11] Id. at 11.

[12] Id.

[13] Yannan Wang, supra note 3; see also, Christopher Woolf, Long before anxiety about Muslims, Americans feared the ‘yellow peril’ of Chinese immigration, PRI (Dec. 9, 2015), http://www.pri.org/stories/2015-12-09/long-anxiety-about-muslims-americans-feared-yellow-peril-chinese-immigration.

[14] 158 Cong Rec H 3715, 3718 (Mr. HONDA expressing that the passage of anti-Chinese laws illustrates the xenophobic hysteria of this country’s shameful chapter of exclusion and we cannot vilify entire groups of people because it is politically or economically expedient).

[15] Scott Clement, Republicans embrace Trump’s ban on Muslims while most others reject it, The Wash. Post (December 14, 2015), https://www.washingtonpost.com/politics/americans-reject-trumps-muslim-ban-but-republicans-embrace-it/2015/12/14/24f1c1a0-a285-11e5-9c4e-be37f66848bb_story.html.

 

[16] See Id.

[17] Jon Feere, Plenary Power: Should Judges Control U.S. Immigration Policy? The Center For Immigration Studies (February 2009) http://www.cis.org/sites/cis.org/files/articles/2009/back209.pdf

[18] Id.

[19] Id.

[20] See Chae Chan Ping v. United States, 130 U.S. 581, 603 (1889).

[21] Id. at 606.

[22] See Jon Feere, supra note 17, at 9-10.

[23] Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892).

[24] See Kwock Jan Fat v. White, 253 U.S. 454 (1912).

[25] See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) (holding that statutes making it more difficult for children born abroad and out of wedlock to a United States citizen to claim citizenship through that parent if the citizen-parent was male did not violate the Equal Protection guarantee of the Fifth Amendment). Instead of deferring to governmental power on the issue of immigration policy making, the Court applied the standard Equal Protection analysis for gender-based classifications, without any alteration of the test to account for the immigration context, and found the measure “substantially related to the achievement of [important governmental] objectives.” Id.;see also Peter J. Spiro, Explaining the End of Plenary Power, 16 Geo. Immigr. L.J. 339 (2002).

[26] See Zadvydas v. Davis, 533 U.S. 678 (2001) (overturning the indefinite detention of removable aliens whose homelands would not accept their repatriation);see also Jon Feere, supra note 17, at 10; Peter J. Spiro, supra note 25, at 343.

[27] Zadvydas, 533 U.S. at 697.

[28] 158 Cong. Rec. H 3715, 3718.

[29] Id.

[30]  Legis. Bill Hist. CA S.J.R. 23 (2013).

21st Century American Law: The Need for Judicial Diversity by Krystle Roper

21st Century American Law: The Need for Judicial Diversity

by

Krystle Roper

“I think there are some particular groups that historically have been underrepresented… that represent a larger and larger portion of the population,” President Barack Obama explained, regarding his latest judicial appointments.[i] Over the course of his terms in Oval Office, the President has made a concerted effort to increase diversity on the Federal Judiciary; compared to 18% of President Bush’s judgeships and 24% of President Clinton’s judgeships, 36% of President Obama’s judgeships have gone to racial minorities.[ii] “[F]or [citizens] to be able to see folks in robes that look like them is going to be important,” the President continued.[iii] Not only does a racially diverse Bench improve equal protection under the law, but it also strengthens the integrity of justice by weakening the racial exclusivity of power.

Ratified on July 9, 1868, the 14th Amendment was one of three “Reconstruction Amendments”[iv] intended to guarantee freedom to former slaves and extend Due Process rights and “equal protection of the laws” afforded to white citizens through the 5th Amendment, to all U.S. citizens as applied to the States.[v] Access to these rights, in part, depends on the manner by which the judiciary interprets the law and applies it on an individual basis.[vi]As a guideline, the third Judicial Canon of the Code of Conduct for United States Judges requires judges to act “fairly” and “impartially” when performing the duties of their office [vii] Black’s Law Dictionary defines the term “impartial” as “unbiased” and “disinterested.”[viii] Any personal bias or prejudice is actually deemed grounds for judges to disqualify themselves.[ix] Nevertheless according to Professor Bryan Fair, “[t]oo often legal institutions, structurally and functionally, reify the interests of the powerful against the interests of those without such power.”[x] Thus, for the judiciary as a whole to operate beyond the biased pitfalls of racial-dominance, the judiciary as a whole cannot be homogeneously white—as “race matters in judicial decision-making.”[xi]

The science of “implicit social cognition” reveals how “individuals do not have to consciously endorse [racial] stereotypes in order for them to negatively affect behaviors towards and judgments” of minorities.[xii] Racial biases are now so deeply embedded in American culture that they can operate subconsciously,[xiii] “even when people are motivated to be racially egalitarian” under the law.[xiv] “Unconscious racial profiling is automatic and unrelated to individuals’ explicit racial attitudes.”[xv] However, when the power of judicial authority is proportionately shared with those of color, the system’s interpretation and application of law as a whole is less likely to operate against minority citizens solely because of their racial classifications. Ultimately, Equal Protection and Due Process are reinforced as realities, as “diversity improves the way people think. By disrupting conformity, racial and ethnic diversity prompts people to scrutinize facts, think more deeply and develop their own opinions,” which “benefits everyone, minorities and majority alike”[xvi] by challenging the status quo of biased proceedings.

Although the President is doing his part regarding the Federal Bench, State Benches bear their own diversity challenges, reflecting “extreme under-representation among every racial minority group.”[xvii] Often times, the intersection of race, bias, and the law is left unacknowledged by key decision makers—this absence of acknowledgement reflected, at least to an extent, by the primarily white racial composition of the American judiciary.[xviii] According to the American Bar Association, only 7% of state judges are black—the venue in which “the vast majority of cases are handled.”[xix]  Unfortunately concerning race issues, the “most common behavioral pattern” for many whites is simply “avoiding the issue,” if possible.”[xx] “When that response is not feasible, the next line of defense is to deny the presence of racial dynamics.”[xxi] According to the Brennan Center’s Report, “the judicial selection commissions of some states have no African American representation, and as recently as 2010 there were still some states with all-white benches. They also noted evidence that the number of black male judges is actually decreasing.”[xxii] The decrease in numbers is problematic in itself, especially when the judicial discretion of those remaining is already subject to counterproductive reprimand.

For instance, as microcosms of American society, all-white juries can be breeding grounds for stereotyping minority defendants as “violent, hypermasculine, animal-like, criminal, and unintelligent.”[xxiii] Such stereotypes only reinforce hyper-incarceration and racial subordination.[xxiv] For judges of color who confront such bias from the Bench, the backlash of an empowered white majority may await them. Recently, the Honorable Judge Olu Stevens, of Jefferson Circuit Court in Kentucky, dismissed an all-white jury panel in a drug case, and dismissed another all-white jury panel in a theft case.[xxv]  Both cases involved Black defendants.[xxvi] “There is not a single African-American on this jury, and [the defendant] is an African-American man,” his Honor stated to one jury.[xxvii] “I cannot in good conscience go forward with this jury,”[xxviii] as the defendants would have likely been tried against a subjective standard of bias as opposed to an objective standard of reason.

In response to Judge Stevens’ advocacy for greater minority presence on jury panels, he was disqualified from both cases.[xxix] Although Chief Justice John D. Minton, of Kentucky, explained how it “was not within his powers to remove Stevens from all criminal cases, he harshly rebuked Stevens and referred the matter to the state Judicial Conduct Commission, which is reviewing whether Stevens violated the judicial conduct code.”[xxx] While the efforts of judges like Stevens to improve the application of justice through courtroom diversity can be challenged, their absence from the Bench can undermine justice altogether.

Race has been empirically proven to affect a “judge’s ability to appreciate the perspective of a plaintiff of another race.”[xxxi] Ethnic similarities between a judge and a defendant can invoke sympathy in ways unattainable between majority judges and minority defendants. For example, in People v. Zackowitz, Justice Cardozo, a man of Jewish descent,[xxxii] showed great sympathy towards the Jewish defendant, who was appealing his first-degree murder conviction on grounds of improper admittance of prejudicial evidence.[xxxiii] Justice Cardozo made significant use of passive voice in his majority opinion—linguistically casting blame away from the defendant, while emphasizing his positive attributes: the defendant had no prior criminal record and was employed.[xxxiv] Furthermore, Justice Cardozo humanized the defendant as a victim of passion through rhetorical questioning: “Was he so inflamed by drink or by anger or by both combined that, though he knew the nature of his act, he was the prey to sudden impulse, the fury of the fleeting moment?”[xxxv] In Zackowitz, the judge’s ability to find common ground with the defendant enforced equal protection under the law, in an otherwise biased justice system, set out to prove the defendant’s “murderous disposition” and evil character.[xxxvi]

However, such outcomes are too often not the norm for minority defendants. In Let’s Get Free: A Hip-Hop Theory of Justice, Paul Butler writes “when lawmakers don’t want people to have jury trials for certain offenses, they make the sentence for the crime less than six months in jail; then, according to the U.S. Supreme Court, the defendant is only entitled to a bench trial.”[xxxvii] This is significant because judges are “more likely to convict” than juries.[xxxviii] The “objective standard inevitably requires judges to have to recourse to their own understandings of what is reasonable.”[xxxix] And “given that the bench has been, and continues to be, overwhelming [white] male, judicial interpretations will be limited and skewed by the similarly limited life experiences of decision-makers.”[xl]

Further research shows how implicit racial biases can have “a number of pernicious effects.”[xli] For example, such bias “can cause individuals to interpret identical facial expressions as more hostile” on minority faces than on white faces.[xlii] In the context of a courtroom, identical ambiguous behaviors can be perceived as “more aggressive when engaged in by blacks as opposed to whites.”[xliii] Furthermore, black defendants can unconsciously be associated with criminality and danger.[xliv] For a defendant of color, the application of principles like the Reasonable Person Standard can be undercut by a lack of racial diversity in the courtroom, thereby undermining 5th and 14th Amendment protections.

Even in the civil context of race-sensitive cases, predominantly white benches have strongly influenced decisions against African-American plaintiff-employees, in favor of predominantly white defendant-employers.[xlv] According to a 20-year empirical study of federal harassment cases, “plaintiff-employees have a very poor win rate in general – succeeding in only 22% of cases overall…the statistical analyses consistently showed that the race of the judge can make a significant difference.”[xlvi] Of course, “[w]hile plaintiffs have a poor win rate in general, they are much more likely to win if their cases come before African American rather than white judges.”[xlvii]

Because of the legal system’s inherent bias against people of color as a disproportionately white institution, the justice system itself should reflect the diverse citizenry subject to its authority. As studies show, racial diversity is significant in heightening analytical aptitude away from the negative influence of preconceived notions and cultural stereotypes.[xlviii] A diverse judiciary can ultimately relax any bias underlying the interpretation and application of law for those of color, thereby reinforcing Equal Protection and Due Process as constitutional guarantees for all.

[i]Jeffrey Toobin, The Obama Brief: The President Considers His Judicial Legacy, The New Yorker (October 27, 2014), http://www.newyorker.com/magazine/2014/10/27/obama-brief.

[ii] Id.

[iii] Id.

[iv] Landmark Legislation: Thirteenth, Fourteenth, & Fifteenth Amendments, United States Senate (2014), http://www.senate.gov/artandhistory/history/common/generic/CivilWarAmendments.htm.

[v] U.S. CONST. AMEND. XIV, §1

[vi] See Peter Strauss, Due Process, Legal Information Institute, https://www.law.cornell.edu/wex/due_process (last visited Feb. 16, 2016) (proposing that “[t]he Constitution does not require “due process” for establishing laws; the provision applies when the state acts against individuals “in each case upon individual grounds” — when some characteristic unique to the citizen is involved. Of course there may be a lot of citizens affected; the issue is whether assessing the effect depends “in each case upon individual grounds”).

[vii] Code of Conduct for United States Judges, United States Courts (March 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d.

[viii]Black’s Law Dictionary, 767 (8th ed. 2008).

[ix] Code of Conduct for United States Judges, United States Courts (March 20, 2014), http://www.uscourts.gov/judges-judgeships/code-conduct-united-states-judges#d.

[x] Bryan K. Fair, Still Standing in the Schoolhouse Door: Deconstructing Brown’s Bias and Reconstructing Its Remedy, 2 Ind. J. L. & Soc. Equal. 137, 138 (2013).

[xi] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xii] L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 120 (2014).

[xiii] Id.

[xiv] Id.

[xv] Id.

[xvi] Sheen S. Levine & David Stark, Diversity Makes You Brighter, The New York Times (Dec. 9, 2015),  http://www.nytimes.com/2015/12/09/opinion/diversity-makes-you-brighter.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=.

[xvii] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xviii] Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, And Rule Of Law, 73 Fordham L. Rev. 2081, 2087 (2005).

[xix] Yolanda Young, Why The US Needs Black Lawyers Even More Than It Needs Black Police, The Guardian (May 11, 2015), http://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.

[xx] Russell G. Pearce, White Lawyering: Rethinking Race, Lawyer Identity, And Rule Of Law, 73 Fordham L. Rev. 2081, 2088 (2005).

[xxi] Id.

[xxii] Yolanda Young, Why The US Needs Black Lawyers Even More Than It Needs Black Police, The Guardian (May 11, 2015), http://www.theguardian.com/world/2015/may/11/why-the-us-needs-black-lawyers.

[xxiii] L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence, 12 Ohio St. J. Crim. L. 115, 120 (2014).

[xxiv] Id.

[xxv] Shenequa Golding, A Kentucky Judge Dismissed a Jury Because It Lacked Black Representation, Vibe (October 28, 2015), http://www.vibe.com/2015/10/kentucky-judge-dismisses-all-white-jury/.

[xxvi] Id.

[xxvii] Id.

[xxviii] Id.

[xxix] Matthew Glowicki, Judge Olu Stevens Removed From Another Case, Courier-Journal (January 14, 2016), http://www.courier-journal.com/story/news/crime/2016/01/13/judge-olu-stevens-removed-another-case/78742266/.

[xxx] Id.

[xxxi] Id.

[xxxii]Benjamin Cardozo Biography, The Biography.com Website (2016), http://www.biography.com/people/benjamin-cardozo-40728.

[xxxiii] People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1930).

[xxxiv] Id.

[xxxv] Id.

[xxxvi] Id.

[xxxvii] Paul Butler, Let’s Get Free: A Hip-Hop Theory of Justice 1 (The New Press 2009).

[xxxviii] Id.

[xxxix] Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard 200 (Oxford University Press 2003).

[xl] Id.

[xli] Kurt Hugenberg & Galen V. Bodenhausen, Facing Prejudice: Implicit Prejudice and the Perception of Facial Threat, 14 PSYCHOL. SCI. 640 (2003).

[xlii] Id.

[xliii] Birt L. Duncan, Differential Social Perception and Attribution of Intergroup Violence: Testing the Lower Limits of Stereotyping of Blacks, 34 J. PERSONALITY & SOC. PSYCHOL. 590 (1976)

[xliv] Id.

[xlv] Pat K. Chew & Robert E. Kelley, Myth Of The Color-Blind Judge: An Empirical Analysis Of Racial Harassment Cases, 86 Wash. U. L. Rev. 1117 (2009).

[xlvi] Id.

[xlvii] Id.

[xlviii] Sheen S. Levine & David Stark, Diversity Makes You Brighter, The New York Times (Dec. 9, 2015), http://www.nytimes.com/2015/12/09/opinion/diversity-makes-you-brighter.html?action=click&pgtype=Homepage&clickSource=story-heading&module=opinion-c-col-left-region&region=opinion-c-col-left-region&WT.nav=opinion-c-col-left-region&_r=.

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