Foreign Laws are NOT Coming to Take Over the United States Legal System By Said Jabbour

Foreign Laws are NOT Coming to Take Over the United States Legal System

By

Said Jabbour

The United States is a melting pot of cultures.[1] This statement has been repeated throughout U.S. history, and has even influenced landmark Supreme Court decisions.[2] The idea is that the United States is a nation of multiple cultures coming together to create a national identity while maintaining people’s individuality. This concept is memorialized in our educational system which seeks (at least in theory) to preserve students’ individuality while imparting traditional societal norms.[3] However, this does not mean that we, as a nation, should have multiple sets of laws and rules to accommodate the needs of each and every culture. What should happen is a give-and-take situation where each culture is assimilated into the general national identity to form one whole unit, not a unit of multiple wholes. That is the basic concept of a melting pot; it is a pot where multiple ingredients go in and mix to become one dish.[4]

This article will not deal with situations where the courts of the United States apply foreign laws to a dispute after going through a “conflicts of laws” analysis, or situations where US courts recognize foreign decrees because of “comity.”[5] The focus of this article is on whether the United States could ever honor the decisions of independent tribunals that apply and impose foreign laws. For the purpose of simplicity, this article will focus on the recent outrage spawned by rumors of Sharia law tribunals in Texas. The article will begin by briefly introducing the controversy that inspired this article then move on to present potential argument which dispel the fear that disagreeable foreign laws will influence local decisions.

Back in January (2015), chain E-mails went out about a sharia law court in Irving, TX.[6] Outrage ensued by conservative members of society which prompted the Mayor of Irving, Beth Van Duyne, to go to Facebook with a post that outraged Muslims in Texas.[7] The mayor said that Texas law will not recognize applications of foreign law that violates public policy, statutory, or federal laws, and proceeded to push a bill that codifies this idea.[8] That bill is what is now causing outrage among Muslims in Texas who believe the law is directed at them.[9]

The entire dispute summarized above, and the outrage felt by both the Muslim citizens opposing the Bill and the residents applauding it, is completely unfounded because the bill simply codifies a well-established concept of U.S. law. The idea that U.S. law reigns supreme and supersedes all other laws is first and foremost explicitly stated in the U.S. Constitution in the Supremacy Clause.[10] Additionally, the United States Constitution grants legislative power only to a fixed set of legislative bodies (congress and state legislatures).[11] Case law has allowed Congress to delegate some authority to administrative agencies despite this provision,[12] but this delegation is so severely limited that it would be nearly impossible to contemplate that Congress would delegate any rule-making power to a private tribunal. So, the fear from the chain E-mails is (as is usually the case) completely groundless because no one can create laws that will bind courts in their decisions.

Despite the Constitutional discussion above, many still fear that the tribunals will be able to put their laws in force by influencing court decisions. The fear stems from U.S. court decisions that apply foreign laws to settle disputes in the United States. This fear is also groundless because any application of foreign laws is fraught with legal analysis on Choice of Laws and Comity, and will likely fail this analysis.[13] In a very simple introduction to the topic of comity, courts will look at three factors in deciding whether to apply a foreign decision: (1) the competence and civility of the foreign court, (2) whether there was fraud in obtaining the judgment, and (3) whether the judgment “violated American public policy notions of what is decent and just.”[14] In deciding all these questions, it is important to keep in mind what exactly courts consider as American public policy and civil. The simplest way to think about American tradition is from the cases on substantive due process, where courts state that substantive rights[15] are determined by traditions exemplified in the history[16] of Western civilization based on Judeao–Christian moral and ethical standards.[17] It is very likely that the most feared Sharia law regulations do not meet the standards of this test. One particular Sharia law which comes to mind is the one sanctioning (almost applauding) honor killings.[18] Honor killings allow a male family member – a father, brother, or even first cousin – to slaughter a female family member for disgracing the family name. And what is the “disgrace to the family name in question”? It could be having pre-marital sex with a male (which, to the chagrin of over-protective fathers everywhere, is illegal), eloping with a man that the family does not approve of, or even – GASP! – dressing inappropriately. Obviously (I hope), such foreign laws are at odds with traditional American values and would fail the test on Comity.

In conclusion, the only thing that the Sharia tribunals can do is settle private disputes in a private manner that does not involve the intervention of any law. Such tribunals exists everywhere throughout the U.S. in the business context (where businesses settle disputes privately through negotiations or through private arbitration), as well as in the family context where Catholic and Jewish families settle their disputes in private religious tribunals.[19] Courts do not accept the decisions of such tribunals as final and they do not have to (see discussion above). This means that people who are unsatisfied with the findings of such tribunals can go through the court system to settle their disputes regardless of what the tribunal decides. Therefore, the fear that Sharia law will take over is completely groundless.

[1] An age-old metaphor acknowledged by the U.S. Department of state. About This Issue, Becoming American: Beyond the Melting Pot, March, 2011, at 1, available at http://photos.state.gov/libraries/korea/49271/march_2011/en_0111_immigration.pdf.

[2] See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003).

[3] See generally, Margaret Stimmann Branson & Charles N. Quigley, The Role of Civic Education (1998), available at http://www.gwu.edu/~ccps/pop_civ.html

[4] A melting pot is a “process of blending that often results in invigoration or novelty,” or “a place (such as a city or country) where different types of people live together and gradually create one community.” Merriam-Webster dictionary, http://www.merriam-webster.com/dictionary/melting%20pot (last visited Oct. 15, 2015)

[5] “Comity is the ‘recognition which one nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard both to international duty and convenience, and to the rights of its own citizens, or of other persons who are under the protections of its laws.’” Daewoo Motor America, Inc. v. General Motors Corp., 459 F.3d 1249, 1257-58 (11th Cir. 2006)

[6] W. Gardner Shelby, Sharia court in Irving, Texas? Negative (July 17, 2015, 2:56 PM), http://www.politifact.com/texas/article/2015/jul/17/sharia-court-irving-texas-negative/

[7] Top Right News, Muslims FURIOUS at This Texas Mayor After She STOPPED Their ‘Sharia Court’ – See Her EPIC Response (September 6, 2015), http://toprightnews.com/muslims-tried-to-bring-sharia-law-to-texas-but-they-didnt-count-on-this-mayors-epic-response/ (please note that I only used this source because it has a picture of the Mayor’s Facebook post, I do not adopt the arguments or opinions in that article).

[8] S.B. 531, 84th  Leg., Reg. Sess. (Tx. 2015)

[9] AM, TEXAS Bans Sharia Law…Democrats and Muslim OUTRAGED, Conservative Post (Sept. 6, 2015), http://conservativepost.com/texas-bans-sharia-lawdemocrats-and-muslim-outraged/ (publishing a statement by a Muslim Irving resident, Omar Suleiman, who believes the law is an “Anti-Sharia bill”)

[10] U.S. Const. art. VI, cl. 2

[11] U.S. Const. art. I, §1. See also, United States v. Shreveport Grain & Elevator Co., 287 U.S. 7785 (1932) (stating that “the legislative powers of Congress cannot be delegated).

[12] Wayman v. Southard, 23 U.S. 1, 41 (1825) (stating that Congress may delegate “powers which [it] may rightfully exercise itself.”)

[13] See, Daewoo Motor, supra note 5, at 1257-58.

[14] Ungaro-Benages v. Dresdner Bank AG, 379 F.3d 1227 (11th Cir. 2004)

[15] Substantive rights are those that are not enumerated in the constitution but are implicit to the concept of ordered liberty as viewed through the prism of an Anglo-American regime of liberty. Duncan v. Louisiana, 391 U.S. 145, 163 (1968)

[16] History in this context means “our laws and traditions in the past half century.” Lawrence v. Texas, 539 U.S. 558, 571-572 (2003)

[17] Id.

[18] See generally, Amira El Azhari Sonbol, Women of the Jordan: Islam, Labor, and the Law (Syracuse Univ. Press ed., 1st ed., 2003)

[19] Dina Samir Shehata, Anti-Sharia Bill Dead, but Sentiment Alive, Third time not a charm for foreign law ban in Texas, The Austin Chronicle (May 22, 2015), http://www.austinchronicle.com/news/2015-05-22/anti-sharia-bill-dead-but-sentiment-alive/ (giving an example of a Jewish family tribunal: Beth Din).

Student Loans: The Inexpugnable Debt By: Devan Byrd

Student Loans: The Inexpugnable Debt

By: Devan Byrd

The Great Recession of the early 2000s left many Americans drowning in debt, more than $1 trillion of which is student loan debt.[1] At the height of the recession, the average loan debt for those that completed an undergraduate degree was $14,100 up from $6,400 in 1995.[2] Additionally, graduates owing a significant student loan debt also increased to 29% from 9% in 1995.[3] During this time, the employment rate among most traditional borrowers leaving school was unchanged, while unemployment among students leaving for-profit institutions jumped to 20.6 percent.[4] For those able to find work during this time, the same pattern of inequality applied to their earnings.[5]

Although, the increase in student loan debt overall signals a positive trend of more Americans attending college. Many families are unable to afford higher education and have a difficult time making the informed decisions necessary about which institutions and majors will yield the best return on investment. Additionally, these levels of indebtedness are unsustainable long-term and will ultimately effect future American’s decision to attend college.[6] A decision that will have the greatest consequences for first-generation students and minority students further perpetuating achievement gaps and inequality.[7]

What must be done?

The government must step in now to guide those currently drowning in student loan debt safely to shore, while implementing regulations that keep education financially obtainable and connect the availability of student loans to the predatory recruitment practices of for-profit institutions. First, the government should revisit the almost complete bar on discharging student loan debt to provide immediate relief for those in need. Next, the government should adopt a comprehensive definition of “affordable” and a workable framework for the institutions to apply when setting tuition prices and financial aid packages. Finally, the government should reform and regulation student loan lending to attend for-profit institutions.

 

Nondischargability:

Beginning in 1976, federal loans were automatically dischargeable after five years of repayment, but borrowers could get out of them earlier if they proved that repayment would cause an “undue hardship.”[8] This benefit ceases to exist.[9] Since 2005, government-guaranteed student loan obligations and those from private lenders are presumptively nondischargeable, even in bankruptcy, absent a showing that the debtor will never be able to afford the monthly payments.[10]

A majority of the federal courts have adopted the Brunner test to determine “undue hardship” in bankruptcy.[11] The Brunner test places the burden on the debtor to prove by preponderance that: (1) the debtor’s current income and expenses, prevent her from maintain a minimal standard of living for herself and her dependents if forced to repay the loans; (2) additional circumstances exist indicating that this state of affairs is likely to persist for a significant portion of the repayment period of the loans; and (3) she has made a good faith effort to repay the loans.[12] Some courts have allowed for partial discharge when repayment of part of the debt does not constitute an undue hardship, but repayment of the entire debt would.[13] Nonetheless, courts have strictly construed the undue hardship test to prevent discharge in almost all cases.

Annually, fewer than 1,000 people try to discharge their student loans using bankruptcy, and the White House is weighing possibilities to make it easier for Americans to expunge certain student loans made by private lenders by treating the loans the same as credit card debt and mortgages.[14] In specific circumstances, for example student loans that fund expensive for-profit degrees that produce poor employment outcomes and high rates of default and delinquency, relief to some degree seems warranted. This will not open the floodgates of the bankruptcy court to frivolous cases, but instead will reinforce regulations on ill-advised lending practices and require for-profit institutions to provide a better service. Additionally, taxpayers should not bear the burden of this loss while for-profit institutions continue to benefit. The institutions should be required to pay back a portion of the discharged loans when their programs are at fault.

Defining “affordable”:

The Lumania Foundation, which focuses on higher education issues, suggests a “Rule of 10” formula for determining affordability based on family contribution.[15] The formula creates a sliding scale that adjusts to each individual family’s circumstances asking them to save 10% of the family’s discretionary income for 10 years, plus students will be asked to contribute while in school by working 10 hours per week.[16] Unlike most discussions on affordability, the Lumina proposal sets out to establish a maximum amount students can reasonably be expected to pay encouraging colleges and policymakers to use the amount as a guidepost when setting tuition prices and designing aid programs.[17] An alternative under the proposal is for the formula to be used to set a maximum amount of loans a student should be expected to borrow.[18] Although, there is little mention of how much families would contribute from current income while a student is in school, the discussion does suggest that families who do not meet the savings standard could be expected to make up for the difference through current earnings, additional work hours, or loans.[19]

Reform and Regulation:

Although, the student loan obligations of Americans are increasing many institutions continue to make high-risk loans to students on behalf of the federal taxpayer to fund educational programs that often do not result in a degree or do not result in a higher-paying job.[20] Associate degrees or certification from for-profit institutions can cost four times more than if obtained from a comparable public institution.[21] The high cost of attendance result in, on average, 96% of the students enrolled to take out student loans.[22] While over half of the students enrolled between 2008 and 2009 left the school without a degree by 2010.[23] What are these institutions doing with all of their money? A majority of their profits go to paying the CEOs millions, marketing, advertising, and recruiting. Only a small portion goes to actual student instruction. The White House has attempted to establish guidelines for these career colleges by requiring that the institutions better prepare students for gainful employment at the risk of losing access to taxpayer-funded federal student aid.[24] Additionally, the White House has initiated a repayment plan linked to income.[25] All Americans with student loan debt should be automatically enrolled in this repayment plan for immediate relief.

[1] Lumina Foundation, A Benchmark for Making College Affordable: The Rule of 10, 2 http://www.luminafoundation.org/files/resources/affordability-benchmark-1.pdf (Aug. 2015)

[2] Id.

[3] Id. (Significant debt is a debt over $20,000.).

[4] Adam Looney and Constantine Yannelis, A crisis in student loans? How changes in the characteristics of borrowers an in the institutions they attended contributed to rising loan defaults, Brookings Papers on Economic Activity, 21 http://www.brookings.edu/~/media/projects/bpea/fall-2015_embargoed/conferencedraft_looneyyannelis_studentloandefaults.pdf (September 2015) (Unemployment of traditional 4-year borrowers increased 0.9% and 0.6% of traditional graduate borrowers.).

[5] Looney and Yannelis, Supra note 4, at 21 (median for-profit borrower earned about $20,900, conversely the median graduate-only borrower earned about $56,100 and the median borrower from a selective undergraduate institution earned about $43,200).

[6] Lumina Foundation, Supra note 1, at 2.

[7] Lumina Foundation, Supra note 1, at 2.

[8] Josh Mitchell, White House Floats Bankruptcy Process for Some Student Debt, The Wall Street Journal, http://www.wsj.com/articles/white-house-studying-new-bankruptcy-options-for-student-loan-borrowers-1426004272 (Mar. 10, 2015).

[9] Id. (requiring a showing of undue hardship in all cases no matter how many years of federal loan payments that have been made).

[10] 11 U.S.C.§ 523(a)(8) (2010). See Jordan Weissmann, How the Bush Administration Pointlessly Screwed Over Student Borrowers, Slate, http://www.slate.com/blogs/moneybox/2015/04/16/student_loans_in_bankruptcy_how_the_bush_administration_pointlessly_screwed.html (Apr. 16, 2015).

[11] See Educ. Credit Mgmt. Corp. v. Jesperson, 571 F. 3d 775 (8th Cir. 2009) (declining to only apply the Brunner test); In re Nash, 446 F. 3d 188 (1st Cir. 2006) (declining to apply only the Brunner test).

[12] Brunner v. New York State Higher Educ. Servs. Corp., 831 F. 2d 395, 396 (2nd Cir. 1987).

[13] See 11 U.S.C. § 105(a) (2010); In re Patricia M. Miller, 377 F. 3d 616 (6th Cir. 2004).

[14] Josh Mitchell, White House Floats Bankruptcy Process for Some Student Debt, The Wall Street Journal, available at: http://www.wsj.com/articles/white-house-studying-new-bankruptcy-options-for-student-loan-borrowers-1426004272 (Mar. 10, 2015) (The process is expensive because they must be filed in the federal court system and the attorneys require several thousand dollar retainers.)

[15] Kaitlin Mulhere, A New Way to Define ‘Affordable’ College, Time Money  http://time.com/money/4003374/how-to-define-affordable-college/ (Aug. 19, 2015).

[16] Id.

[17] Id. (Traditionally focus on college tuition cost, available grant aid, and what students are left to pay.).

[18] Id.

[19] Id.

[20] Looney and Yannelis, Supra note 4 at 36–37.

[21] Fact Sheet, For Profit U http://forprofitu.org/fact-sheet/ (Although for-profit institutions educate only a fraction of the American student population these institutions receive, on average, 25% of all the federal financial aid dollars.).

[22] Id. (One in five students from for-profit institutions default on their loans within three years of entering repayment.).

[23] Id.

[24] U.S. Department of Education, Obama Administration Takes Action to Protect Americans from Predatory, Poor-Performing Career Colleges http://www.ed.gov/news/press-releases/obama-administration-takes-action-protect-americans-predatory-poor-performing-career-colleges (Mar. 14, 2014).

[25] The White House Press Secretary, Fact Sheet: A Student Aid Bill of Rights: Taking Action to Ensure Strong Consumer Protections for Student Loan Borrowers https://www.whitehouse.gov/the-press-office/2015/03/10/fact-sheet-student-aid-bill-rights-taking-action-ensure-strong-consumer- (Mar. 10, 2015)(“Pay-As-You-Earn Loans” capping federal loan payments at 10% of their income).

Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship By Elton Darby

Bringing them out of the shadows: Updating the INA’s Registry provision to create a pathway to citizenship

By

Elton Darby

The campaign trail to the 2016 U.S. presidential election has been unique in a few ways, intense twitter wars and the popularity of non-establishment candidates to name a few.[1] Despite these colorful novelties, how to treat the country’s millions of undocumented immigrants has been, and continues to be, a pivotal issue amongst the candidates. Republican candidates, Jeb Bush and Donald J. Trump, promote “border security” and “defend[ing] the laws and Constitution of the United States” against undocumented immigrants.[2] Democrats, on the other hand, plead to “bring the undocumented out of the shadows” by providing a pathway to citizenship.[3] To many democrats and pro-immigrant groups, a “pathway to citizenship” is seen as the most humane method to treat the undocumented immigrants in the United States. [4] But how would it work in practice?  The Clinton and Sanders campaigns have made their support for a pathway clear, but neither has provided details of how the pathway would be paved. Deep within the bowels of America’s law libraries, however, a solution hides within an infamous creature: The Immigration and Nationality Act (INA). Yes, the ominous, telephone-book sized statute that provides a wide range of fates: from permission to remain in the U.S. on one end, and removal to an ancestral homeland on another. The INA already provides a pathway, it only needs some fresh pavement: Registry.[5] In this blog post, I examine the feasibility of updating the INA’s Registry provision to provide a simple, streamlined pathway to citizenship for undocumented immigrants.

Registry, along with cancellation of removal, are the traditional forms of relief to removal available to non-Lawful Permanent Resident (LPR) aliens. Registry deems an alien lawfully admitted to the United States as long she proves:(1) continuous residence since entry; (2) good moral character; and (3) is not a terrorist, Nazi persecutor, or otherwise inadmissible.[6] The current Registry date is January 1, 1972.[7] In other words, an alien who entered the U.S. before 1972 and avoided criminal convictions may be able to obtain lawful permanent residence status through Registry. LPRs may apply for citizenship after five years of U.S. residence.[8] The justification behind Registry, as explained by Professor Richard Boswell, was the realization that a class of aliens had resided in the U.S. long enough to start families and become “interwoven into the community.”[9] Registry can thus be understood as “statute of limitations to removal for a narrowly defined group.”[10] Despite the periodic advance of the registration date, Registry has always been tailored to a narrowly defined group. At its peak in fiscal year 1966, 2,887 petitions for relief by Registry were granted.[11] By 2013, the number of beneficiaries had dropped to 104.[12]

Although Registry itself has never been expanded, Congress has attempted to create new pathways. In 1986, Congress enacted new legislation, the Immigration Reform and Control Act (IRCA), that granted amnesty and a pathway to citizenship for undocumented immigrants continuously present in the country since 1982.[13] IRCA favored agricultural workers over immigrants in other fields.[14] For non-agricultural workers, the IRCA contained many similarities to Registry, such as a continuous residence requirement and bars to amnesty if the alien had committed certain crimes.[15] IRCA’s enactment was accompanied by major downfalls. Those aliens who entered legally in any way were ineligible for the program.[16] First, the alien had to prove continuous unlawful residence in the United States since 1982.[17] Second, immediate relatives were not eligible to apply for relief. [18] The exclusion of immediate relatives from eligibility meant removal for some family members and amnesty for others. ICRA nevertheless resulted in the receipt of LPR status by 2.7 million undocumented immigrants.[19]

Not unlike the past, the debate over immigration policy continues to rage across the country.[20] Some presidential candidates have highlighted crimes committed by undocumented immigrants as a vehicle to support mass deportations. The solution, however, need not be so dramatic. American society needs nothing less than the institution of costly, wide spread roundup actions aimed at a particular demographic. The potential for catastrophic monetary and civil rights costs would be enormous.[21] A much less divisive method to treat undocumented immigrants is an update of the Registry provision.  Rooted in historical precedent, updating the Registry date to a reasonable time would provide a simple, cost-effective method to bring undocumented immigrants out of the shadows. The Registry date should be updated to reflect a time period when a continuous resident undocumented alien would naturally have developed deep ties to the U.S.[22] The current date requires forty-three years of continuous residence to apply for Registry. Substantial ties can be made to a country in far less time. If the date were updated to, for example, 1995, undocumented immigrants that entered twenty years ago and produce a record of lawful continuous residence since that time would receive an opportunity to obtain LPR status.[23] Changes to the Registry date would undoubtedly be controversial, as an expansion would immediately a defense to removal and eligibility to apply for LPR status.[24] Registry, however, is not without a key benefit to interior enforcement: the separation of criminal aliens from those living lawfully since entry. Currently, undocumented immigrants do not have much benefit to confer with the police: placement in a removal proceeding could mean a bar to re-entry for years. If Registry were updated, not only would immigration enforcement authorities have the ability to exhaust more resources on criminal aliens, but cooperation between well-behaved undocumented immigrants and enforcement authorities would improve.

Admittedly, Registry is a once-in-a-generation solution to the problem of illegal immigration, as it rewards illegal entry. Any update to the Registry date would likely need to be followed by a ramp-up in border security and enforcement. Nevertheless, history teaches us that, every so often, the immigration system breaks down to a point where a wide-reaching solution is needed. An update of the INA’s Registry provision would provide that grand solution at low cost to government resources and human rights.

[1] See e.g., Alan He, Bush and Rubio campaigns jab at each other over fundraising, CBS News, http://www.cbsnews.com/news/bush-and-rubio-campaigns-jab-at-each-other-over-fundraising/ (last visited Oct. 18, 2015) ; See Susan Milligan, The Year of the Underdog?, US News & World Report, http://www.usnews.com/news/the-report/articles/2015/08/28/2016-may-be-the-year-of-the-underdog-with-trump-sanders-and-carson (last visited Oct. 18, 2015).

[2] Jeb 2016, “Border Security” https://jeb2016.com/border-security/?lang=en (last visited Oct. 18, 2015). ; Donald J. Trump for President, “Immigration Reform” https://www.donaldjtrump.com/positions/immigration-reform (last visited Oct. 18, 2015).

[3] Bernie 2016, “A Fair and Humane Immigration Policy” https://berniesanders.com/issues/fair-and-humane-immigration-policy/ (last visited Oct. 18, 2015). ; Hilary for America, https://www.hillaryclinton.com/issues/immigration-reform/ (last visited Oct. 18, 2015).

[4] See Jeffery M. Jones, In U.S., 65% Favor Path to Citizenship for Illegal Immigrants, Gallup, http://www.gallup.com/poll/184577/favor-path-citizenship-illegal-immigrants.aspx (last visited Oct. 18, 2015).

[5] 8 U.S.C. § 1259 (2015).

[6] Id.

[7] Id.

[8] 8 U.S.C. § 1427 (2015).

[9] Richard A. Boswell, Crafting an Amnesty with Traditional Tools: Registration and Cancelation, 47 Harv. J. on Legis., 175, 183 (2010).

[10] Id.

[11] Immigration & Naturalization Serv., U.S. Dep’t of Justice, Annual Report of the Immigration and Naturalization Service 1966-67, 8, available at http://babel.hathitrust.org/cgi/pt?id=pst.000067698356;view=1up;seq=16

[12] 2013 Yearbook of Immigration Statistics, Office of Immigration Statistics, Dept. of Homeland Sec., 24 tbl. 7 (2013) available at http://www.dhs.gov/sites/default/files/publications/ois_yb_2013_0.pdf

[13] See IRCA, Pub L. 99-603 (1986) (codified as 8 U.S.C. 1160(a), 8 U.S.C. 1255a(a) (2015))

[14] Boswell, supra note 9, at 196.

[15] 8 U.S.C. § 1255a(a) (2015).

[16] Boswell, supra note 9, at 197.

[17] 8 U.S.C. § 1255a(a)(2)(A) (2015) (“the alien must establish that he entered the United States before January 1, 1982… and that he has resided continuously… in an unlawful status since such date.”)

[18] Betsy Cooper & Kevin O’Neil, Lessons from the Immigration Reform and Control Act of 1986, Migration Policy Institute, August 2005, No. 3, at 3 http://www.migrationpolicy.org/research/lessons-immigration-reform-and-control-act-1986

[19] Id.

[20] See e.g., Emmett Berg, Felon in immigration furor pleads not guilty to San Francisco shooting, Reuters, July 8, 2015. http://www.reuters.com/article/2015/07/08/us-usa-california-shooting-idUSKCN0PH1Y620150708 (last visited Oct. 18, 2015). (San Francisco immigration debate rages as convicted felon previously removed five times charged with murder).

[21] Boswell, supra note 9, at n. 136 (1950’s mass deportations had heavy costs and civil rights violations).

[22] See Boswell, supra note 9, at 206 (Registry date should be advanced to encompass a large portion of the undocumented population.)

[23] Boswell, supra note 9, at 205 (arguing for a Registry date five to seven years preceding a potential enactment).

[24] Margaret H. Taylor, What Happened to Non-LPR Cancellation? Rationalizing Immigration Enforcement by Restoring Durable Relief from Removal, 30 J.L. & Pol. 527, 529 (updating the Registry date “is politically infeasible and perhaps unwise”).

Budget Cuts: Did Alabama’s Closure of 31 DMV Offices Violate The Equal Protection Clause? By Axel Buchwalter

Budget Cuts: Did Alabama’s Closure of 31 DMV Offices Violate The Equal Protection Clause?

By

Axel Buchwalter

On Sept. 30, the Alabama Law Enforcement Agency (ALEA) announced the closure of 31 part-time driver’s licensing offices.[1] The closures were the result of an $11 million cut in appropriations to the ALEA.[2] While those 31 part-time locations where responsible for less than five present of Alabama Driver License transactions, their closures could pose a serious problem for some Alabama voters.[3]

Alabama is one of 31 states that have some form of voter identification laws in place.[4] Alabama’s voter identification law requires that voters present a valid photo ID to be eligible to cast a regular ballot.[5] Voters without a valid photo ID must cast a provisional ballot.[6] It is unsurprising then, that the majority of Alabamians use state issued driver licenses’ or ID cards to vote. It is important then, that every Alabama resident be able to easily obtain a state issued photo ID.

Disappointingly, the 31 office closures have left 28 counties without a location to obtain a state issued photo ID.[7] A major inconvenience for our states rural residents. But more worrying, the majority of these closures have occurred in counties located in Alabama’s Black Belt.[8] These counties are majority African American and home to Alabama’s poorest residents.[9] It is an open question then, if these closures might have an impact on the constitutionality of Alabama’s voter identification law.

The Supreme Court has repeatedly stressed that voting is of “fundamental significance under our constitutional structure.”[10] Yet, the right to vote is far from absolute. States maintain an active role in structuring voter regulations and elections.[11] It is compelling that “as a practical matter, there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order, rather than chaos, is to accompany the democratic processes.”[12] However, states are limited in the restrictions or qualifications they may impose on the right to vote. The Equal Protection Clause “restrains the States from fixing voter qualifications which invidiously discriminate.”[13] The Court has been clear that restriction on “wealth, like race, creed, or color, is not germane to one’s ability to participate intelligently in the electoral process.”[14] But, that “evenhanded restrictions that protect the integrity and reliability of the electoral process itself” can be tolerated.[15]

Previously, the Court has been asked to evaluate whether voter identification statutes violate the Fourteenth Amendment. In Crawford v. Marion Cnty Election Bd., 553 U.S. 181 (2008) the court upheld an Indiana voter identification statutes that required individuals voting in-persons to present a particular form of government-issued photo identification.[16] The court applied Anderson’s balancing approach and evaluated whether the identified state interests justified the burden imposed on voters.[17] The court identified three state interests, election modernization, voter fraud, and safeguarding voter confidence as compelling reasons for burdening voters with identification requirements.[18] Interestingly, when asked to consider the laws burden on groups of voters who lacked photo identification the Court dismissed the issue as unsubstantiated, concluding that anyone without a proper photo ID could still cast a provisional ballot, that would ultimately be counted, assuming they traveled to the circuit court clerk’s office and executed the required affidavit.[19]

If the courts were asked to rule on the Alabama voter ID law the precedent setout in Crawford would be instructive. It is clear that courts are supportive of the states position that voter identification laws further a legitimate state interest. However, each restriction needs to be evaluated in conjunction with the burden imposed by the rule.[20] The Court has also shown the potential to consider whether a given restriction disproportionately effects a portion of the population. Given the newfound difficulty of obtaining a photo ID in the Black Belt it is an open question whether that burden has risen to the level of an equal protection violation in the eyes of the court. Regardless, it seems likely that a court will be called to make that factual determination shortly.

[1] ALEA Reallocates Personnel to District Driver License Offices, Alabama Law Enforcement Agency (Sept. 30, 2015), http://www.alea.gov/Home/wfFlyerDetail.aspx?ID=2&PK=ea439937-97c5-4ab6-894a-e0e27c6e8d91

[2] Id.

[3] Id.

[4] Wendy Underhill, Voter Identification Requirements | Voter ID Laws, National Conference of State Legislators (Oct. 6, 2015), http://www.ncsl.org/research/elections-and-campaigns/voter-id.aspx   

[5] Acceptable forms of ID include: a valid Alabama driver’s license or non-driver ID card, valid photo voter ID card or other valid ID card issued by any state or federal government, as long as it contains a photo, valid U.S. passport, valid government employee ID card with a photo, valid student or employee ID card issued by a college or university in the state, provided it includes a photo, valid U.S. military ID card containing a photo, valid tribal ID card containing a photo. Alternatively, voters can without a valid photo ID can still cast a regular ballot if they are identified by two election officials as an eligible voter, and bit sign a sworn affidavit. Ala. Code 1975 § 17-9-30

[6] If voting a provisional ballot, the voter has until 5:00 PM on the Friday after the election to bring the required ID. Id.

[7] Kyle Whitmire, Voter ID and driver license office closures black-out Alabama’s Black Belt, AL.com (Sept. 30, 2015) http://www.al.com/opinion/index.ssf/2015/09/voter_id_and_drivers_license_o.html

[8] Id.

[9] Id.

[10] Illinois State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184 (1979)

[11] Burdick v. Takushi, 504 U.S. 428, 433 (1992)

[12] Storer v. Brown, 415 U.S. 724, 730 (1974)

[13] Harper v. Virginia State Bd. Of Elections, 383 U.S. 663, 666 (1966)

[14] Id. at 668

[15] Anderson v. Celebrezze, 460 U.S. 780 (1983)

[16] Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)

[17] Id.

[18] Id.

[19] Id.

[20] Id.

Something Must Change by Chris Saville

Something Must Change

by

Chris Saville

The human rights violations in Syria and neighboring Iraq are almost unconceivable; the Syrian government’s intentional targeting of civilians during air strikes[1], the murder of hundreds of men due solely to their religion, and the forced religious conversion of young boys to fuel the ISIS war machine.[2] To anyone who has followed international conflicts over the past sixty, thirty, or even just fifteen years, these horrible events likely sound familiar, and they should. Since the creation of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948, there have been numerous genocides, often with little intervention from the United States. [3] Despite cries of “never again”[4], we have repeatedly allowed genocide to take place. And now, we are watching it happen again in the Middle East, with concurrent genocides by the Syrian government and religious extremist group ISIS.

The method for avoiding intervention is insidiously prescribed by the Convention itself. The Convention on the Prevention and Punishment of the Crime of Genocide defines genocide as the killing, the deliberately inflicting conditions aimed at destroying, the preventing of births, or the transferring of children from one group to another, with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.[5] When genocide is determined, every party that has signed the Convention, including the United States[6], is required by international law to “undertake to prevent and to punish.”[7] But what happens when a country is bound by law to intervene when such intervention would cause international chaos or even nuclear war, a legitimate concern during the Cold War?[8] One method has simply been to refuse defining the actions as genocide.[9] This was the strategy famously adopted by the Clinton administration during the Rwandan genocide[10], and it appears that both the United States and even the United Nations have similarly adopted it for the current crises in Syria[11] and Iraq.[12] These atrocities, using the Convention’s plain and obvious meaning, are genocide, however the bare refusal to recognize them as such prevents an international duty to act. Using this ridiculous approach, the United States and United Nations are again relieved from intervening in a severely destabilized region.

The brazen rejection of the acts in Syria and Iraq as genocide detracts from what the true issue is. The question should not be “is it genocide”, when at this point it clearly qualifies. Focusing on the existence of genocide at this stage is utterly useless. The question should be “what do we do to stop it?” How do we utilize international intervention in conflicts that both preserves a nation’s autonomy and at least ends, if not prevents, genocide? Of course this is easier to speculate on than to actually achieve. Too strong of a response not only violates the principle of autonomy but also has the potential to destabilize the region and result in further conflict. At the same time, a limp effort will do little to stop the atrocities and may even embolden the perpetrators to push the limits.[13] Perhaps the sweet spot is simply unattainable. Maybe success in stopping genocide is hit or miss, and the public doesn’t recognize successful preventions because they never escalate into the mass horrors we’ve shockingly come to expect. Regardless of the answer, the events in Syria and Iraq are full scale genocide, and history has taught us that it will be very difficult to end the horror without further bloodshed and chaos. Indeed, severe consequences likely accompany a military intervention in Syria and Iraq[14] and thus the will to end the atrocities must be strong enough to overcome fear of those consequences.

The answer to “how do we end genocide” touches on more than simply actions. In prescribing a plan of action, countries need to determine how deeply they desire the goal. Without the will to do what is necessary, there can be no success. A poll taken in 1994 reported that sixty five percent of Americans supported a United Nations, and American, intervention in genocidal conflicts using “whatever force is necessary.”[15] This report echoes polls taken during the Bosnian and Iraqi genocides in the 1990s.[16] Clearly the American people support efforts against genocide, but why? Sixty five percent of Americans supporting whatever efforts are necessary to combat genocide is an impressive response, but twenty three percent responded they only supported whatever efforts were necessary if American interests were involved. [17] Sadly, the past decades of genocides proceeding largely unabated seem to indicate that the truth lies with the twenty three percent, rather than the sixty five. Stopping genocide is a cause that everyone rightfully supports, but actual intervention seemingly has only occurred when it is convenient or our interests are furthered.[18] Polls taken in 2014 are reminiscent of those taken during the 1990’s, showing that the American public supports airstrikes in both Syria and Iraq.[19] After observing the events in Syria and Iraq over the past four years, however, it is safe to assume that humanity alone is once again not a sufficient interest to warrant meaningful intervention from Western leaders.

In this forest of uncertainty there lie several simple truths. In order to move forward we must see the victims as individuals, persecuted on a mass scale. They are not a faceless group. The reason we should care is not because of economic or political interests, but because we are people. Others have championed the end of genocide from a multitude of standpoints, including morality[20], but morality should be the only impetus required. Genocide is a violation of our collective rights as human beings, perpetrated against individuals. Understandably the leaders of the world must act to further the well-being of their people and the answers are incredibly complex. But if the nations of the world intend to act within their respective moral compasses, as they undoubtedly claim, something must change. Ignoring the true nature of the acts as genocide ignores the humanity of the victims. Using statutory loopholes to prevent mandatory intervention not only cheapens the law, it cheapens the lives of those who are suffering. Escalation and destabilization are legitimate concerns but this cannot continue.

[1] Syria Conflict: Aleppo Civilians Suffer ‘Unthinkable Atrocities, BBC (May 5, 2015), http://www.bbc.com/news/world-middle-east-32581007

[2] Nick Cumming-Bruce, United Nations Investigators Accuse ISIS of Genocide, N.Y. Times (Mar. 19, 2015), http://www.nytimes.com/2015/03/20/world/middleeast/isis-genocide-yazidis-iraq-un-panel.html

[3] Samantha Power, “A Problem From Hell” 503 (2002).

[4] Samantha Power, Never Again: The World’s Most Unfulfilled Promise, PBS (last visited Oct. 9, 2015), http://www.pbs.org/wgbh/pages/frontline/shows/karadzic/genocide/neveragain.html

[5] Power, supra note 3, at 62.

[6] Power, supra note 3, at 167.

[7] Power, supra note 3, at 62.

[8] Power, supra note 4.

[9] Power, supra note 3, at 508.

[10] Power, supra note 3, at 358-64.

[11] Jennifer Rubin, Kerry won’t Call what is Happening in Syria “Genocide”, Wash. Post (Feb. 27, 2014), https://www.washingtonpost.com/blogs/right-turn/wp/2014/02/27/kerry-wont-call-what-is-happening-in-syria-genocide/

[12]  Nick Cumming-Bruce, supra note 2.

[13] Power, supra note 3, at 506-07.

[14] See Doug Bandow, Russia Follows U.S. Script and Intervenes, Forbes (Oct. 5, 2015), http://www.forbes.com/sites/dougbandow/2015/10/05/russia-follows-u-s-script-and-intervenes-in-syria-vladimir-putin-wrecks-washingtons-mideast-plans/ (discussing Russia’s military intervention in the Middle East).

[15] Power, supra note 4.

[16] Power, supra note 4.

[17] Power, supra note 4.

[18] See Power, supra note 3, at 508 (“American leaders did not act because they did not want to.”)

[19] Dan Balz & Peyton M. Craighill, Poll: Public Supports Strikes in Iraq, Syria, Wash. Post (Sept. 9, 2014), https://www.washingtonpost.com/politics/poll-public-supports-strikes-in-iraq-syria-obamas-ratings-hover-near-his-all-time-lows/2014/09/08/69c164d8-3789-11e4-8601-97ba88884ffd_story.html; Emily Swanson, Most Americans now Support Airstrikes in Syria, Huffington Post (Oct. 29, 2014), http://www.huffingtonpost.com/2014/08/29/syria-poll_n_5736468.html

[20] Power, supra note 3, at 512.

The Second Amendment: An Evolving Piece of the Constitution by Chelsea Caveny

The Second Amendment: An Evolving Piece of the Constitution

by

Chelsea Caveny

As of Friday, October 2nd, there had been 994 mass shootings in America in the last 1,004 days.[1] I am writing this piece on Saturday, October 10th, and I am sure that the number of mass shootings is already higher.[2] By the time this piece is published online, the number will be higher still. In President Obama’s response after the recent shooting at Umpqua Community College in Roseburg, Oregon he referenced the numbness and routine now felt by the American people towards mass shootings.[3]

If we expand the number of gun deaths beyond just the statistics surrounding “mass” shootings, again the numbers become stark and troubling. In the opinion section of the New York Times, Nicolas Kristof wrote that 92 people in America die from gun violence, every single day.[4] When you include gun deaths of all types (suicide, murders and accidents) that number grows to 1.45 million deaths since the 1970s.[5] Kristof uses the 1970s as a point of demarcation for his statistics. Why is that? Kristof doesn’t expand on this in his piece (which largely focuses on ways that guns can be made safer, similar to ways we regulate cars). What Kristof does reference, and a reference that is almost always present when we talk about ways to reduce these staggering numbers, is the NRA.

After every mass shooting, the policy talk inevitably becomes how we address gun control.  On one side, talks of stricter background checks and tracking of guns, on the other side the defense of gun ownership under the 2nd amendment. The debate almost always includes a reference to the power, whether good or bad, of the NRA. In his address after the Oregon shooting, President Obama made a loosely guised reference to the power of the NRA when he encouraged Americans who safely own guns to question whether their interests are being properly represented by a national organization.[6]

In 2012, Jeffrey Toobin wrote an article in the New Yorker that connected the 1970s, the NRA, and our modern interpretation of the 2nd Amendment.[7] Toobin argues that for nearly a hundred years the 2nd Amendment was interpreted narrowly and in line with the original drafting, which gave militias the right to bear arms, not individuals. It wasn’t until 2008 that the Supreme Court espoused what has become our modern understanding of 2nd Amendment protection. According to Toobin, the Supreme Court decision in Heller in 2008 didn’t happen overnight.[8] In 1977, a new group of politically conservative leaders took over the NRA and made the plan for a more active, deliberate organization. Not long after Reagan, a pro-gun rights conservative, took the White House. Orrin Hatch of Utah commissioned a report that painted the long jurisprudential interpretation of the 2nd Amendment as incorrect, and the NRA began producing similar research. Ultimately, as Toobin writes, “an outré constitutional theory, rejected even by the establishment of the Republican Party, evolved, through brute political force, into the conservative conventional wisdom.”[9]

The work of the NRA and conservative politicians that started in the 1970s, came to fruition in 2008 with the Supreme Court’s decision in Heller, a decision ruling a DC handgun ban unconstitutional.[10] One of the leading scholars on what the Heller decision represented in a larger context is Reva Siegel at Yale.[11] Siegel writes that the “Court had interpreted the Second Amendment in accordance with the convictions of the twentieth century gun-rights movement and so had demonstrated the ascendancy of the living Constitution.”[12] And there in lies one of the most interesting contradictions in American politics. Justice Scalia, long seen as the archetype and protector of original constitutional interpretation[13], wrote an opinion in Heller that had to re-imagine the constitution in line with more modern gun principals. As Siegel writes, “Heller‘s account of the Second Amendment’s original public meaning invokes authorities from before and after the founding, relies on common law-like reasoning, endows judges with vast amounts of interpretive discretion, and, in these respects, resembles the practice of living constitutionalism that Justice Scalia often condemns.”[14]

When writing about this in 2012, Toobin’s point was that no law is ever settled, not even our understanding of the 2nd Amendment, nor is any interpretation ever done in a vacuum void of modern politics. Yet, our modern policy debates over gun control seem void of any idea that the 2nd Amendment has evolved or could ever evolve even more. The shootings continue to grow, and people continue to die. Yet, gun control efforts have been stagnant. Maybe a place to start the conservation is by challenging the notion of an infallible 2nd amendment?

Yet, maybe it is that very notion that continues to stop the debate from turning into policy changes. The idea that the 2nd Amendment could change yet again is likely a scary thought for conservative gun owners. Whether justified or not, there seems to be a real fear among conservative Americans that the Obama White House is going to go from door to door and collect every firearm, whether legally or illegally owned.[15] In making that point, The Atlantic argued that while supporters of moderate gun control might find that entrenched belief absurd, the belief at least has to be acknowledged before gun control measures can be addressed.[16]

Whatever belief system one might hold, we seem to be reaching a tipping point and for sensible reforms (like gun tracking and safety lock mechanisms suggested by Kristof in the New York Times) to be enacted, it seems that both sides will have to acknowledge that this debate is as much a policy one, as it is a constitutional one.

[1] See 994 Mass Shootings in 1,004 Days: This is What America’s Gun Crisis Looks Like, The Guardian, Oct. 2nd, 2015, http://www.theguardian.com/us-news/ng-interactive/2015/oct/02/mass-shootings-america-gun-violence, (mass shootings are defined by an event where more than 4 people are shot in a single incident).

[2] See Sarah Kaplan, Four Delta Chi Fraternity Members Shot-One Fatally-At Northern Arizona University, Washington Post, Oct. 9, 2015, http://www.washingtonpost.com/news/morning-mix/wp/2015/10/09/one-dead-3-injured-in-shooting-at-northern-arizona-university/.

[3] See Gardiner Harris and Michael D. Shear, Obama Condemns ‘Routine’ of Mass Shootings, Says U.S. Has Become Numb, N.Y. Times, Oct. 1, 2015, http://www.nytimes.com/2015/10/02/us/obama-oregon-shooting-umpqua-community-college-gun-control.html?_r=0.

[4] Nicholas Kristof, Opinion, A New Way to Tackle Gun Deaths, N.Y. Times, Oct. 3, 2015, http://www.nytimes.com/2015/10/04/opinion/sunday/nicholas-kristof-a-new-way-to-tackle-gun-deaths.html?smid=tw-nytopinion&smtyp=cur&_r=0.

[5] Id.

[6] See Harris, supra.

[7] See Jeffrey Toobin, So You Think You Know the Second Amendment?, The New Yorker, Dec. 17, 2012, http://www.newyorker.com/news/daily-comment/so-you-think-you-know-the-second-amendment.

[8] Id.

[9] Id.

[10] See District of Columbia v. Heller, 554 U.S. 570, (2008); Toobin, supra.

[11] See Reva Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[12] Id. at 192.

[13] See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 854 (1989); Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation 3, 38 (Amy Gutmann ed., 1997).

[14] Siegel, supra at 196.

[15] See David Graham, Why Conservatives Mistrust Even Modest Efforts at Gun Control, The Atlantic, Oct. 2, 2015, http://www.theatlantic.com/politics/archive/2015/10/conservatives-gun-control-and-distrust/408643/.

[16] Id.

Education or Violence? By Carrington Jackson

Education or Violence?

By

Carrington Jackson

After remaining relatively dormant since the early 1990’s, coverage of race conflict has regained national attention. In an age where social hashtags stand in place of million man marches, and a Tweet, in place of a boycott—the way society expresses its discontent for injustice has considerably changed.

The ability to shoot-share-and receive media instantaneously is a direct reflection of the hurried lifestyles we live.  The news floods our devices with legal language, and in turn, make standards of proof like probable cause and reasonable suspicion household terms.

While these terms may be more mainstream, their meanings are not so easily understood. The term “probable cause” is a constitutional requirement found in the Fourth Amendment. Probable cause is usually found when there is a rational basis for believing a crime may have been committed.[1] Furthermore, the existence of probable cause depends on the ‘totality of the circumstances’ of the arrest.[2] The ‘totality of the circumstances’ considers the arresting officers knowledge or reasonable belief regarding the suspect at the time of the arrest.[3]  Because probable cause does not have a formal definition, courts typically choose the broader and more flexible view of the term.[4]

Similarly, under the penumbra of probable cause, the definition of the term “reasonable suspicion” is just as indeterminable. Essentially, reasonable suspicion requires that an officer have sufficient knowledge or belief that there is ongoing criminal activity.[5] Since it is a lesser standard than probable cause, police officers are given the discretion to make situational assessments, and hopefully, rational inferences from the facts before them.[6]

Without a concrete method set to evaluate the “probable cause” or “reasonable suspiciousness” of all suspects, these imprecise standards are left for officers to interpret—placing police officers at the center of balance between society and the law. Like surgeons, police officers are sometimes burdened with making the choice between life and death. In a majority of cases, the right decision is made. However, as recent headlines demonstrate, wrong decisions that are specifically related to race issues are becoming far too commonplace.

Evidence of police officers’ questionable decisions are chronicled by landmark hashtags like, #ICantBreathe and #HandsUpDontShoot. In a Brooklyn Magazine article written recently after Eric Garner’s death, Phillip Pantuso contends that Daniel Pantaleo [the officer that choked and ultimately killed Eric Garner] “did the wrong thing, but at every step of the way, his actions were rational in context . . .[and] it’s the context that needs changing.[7]” That “context,” I contend, is the crossroad where the imprecise standards of probable cause, and the education requirements of police officers meet.

Through their work, police officers encounter a broad swath of people—from bankers, to suburban housewives, to criminals and troublemakers, all of whom come from very diverse backgrounds. That diversity is especially apparent in communication. By the same token, it is inevitable that during those encounters, confrontation will arise because of miscommunication. However, there seems to be an upward trend in this level of disconnect—more specifically, situations involving Blacks and Whites.

Higher education serves as the bridge—promoting social tolerance by exposing individuals to our world and the people we share it with. Following urban unrest in the 1960s, there was a move toward requiring college degrees for police officers.[8] Unfortunately, that movement never gained serious traction.[9] Because the public eye is often drawn to the dramatics found in the dynamic between white officers and black suspects, we tend to apply a stricter public scrutiny to the outcome of these cases. While dogged racial tensions may be an important factor in the overall discussion, the misinterpretation of legal standards by our police, caused by the even lower educational threshold for their hiring, is equally disturbing.

A 2003 study by the Bureau of Justice Statistics found that 83 percent of all U.S. police agencies only require a high school diploma; eight percent require some college; and only one percent requires a four-year college degree.[10]

Ultimately, even if the terms probable cause and reasonable suspicion are given more precise definitions, the standard’s application would still be left up to an officer’s discretion. For example, amidst a tense emotional situation like an arrest, an officer is forced to analyze the situation instantaneously.  And, like most professions that requires increased stress or specialized knowledge (e.g., pharmacist, doctors, attorneys, etc.), there is a requirement of some form of higher education.

The ability to connect, and at the very least, to understand individuals and their beliefs, is fundamental in today’s society. In 1994, the Commission on Accreditation for Law Enforcement Agencies, Inc., found that, “[o]fficers who have received a broad general education have a better opportunity to gain a more thorough understanding of society, to communicate more effectively with citizens, and to engage in the exploration of new ideas and concepts.”[11]

These findings were further substantiated in a 2010 Police Quarterly study uncovering those officers with some college education or a four-year degree decided to use almost 15 percent less than an officer with a high school-education.[12]  The study used a definition of “force” that covered conflict from verbally threatening suspects to pointing or firing a gun.[13]

Similarly, William Terrill, a criminal justice professor at Michigan State University, found that “since force is a more discretionary and individual decision, there is a greater opportunity for biases to surface.[14]” This often means asking an officer who may have some preexisting prejudices—or even worse, negative or previous dealings with a member of another race/ethnic background—to fairly analyze and diffuse hostile encounters.

Further, Terrill held that officers without a college education are more likely to think that they are the law with the power to enforce their will.[15] Though this may not be true of all officers, evidence clearly suggests that the presence or absence of higher education directly influences an officer’s choice to use force.[16]

Logically, if public officers are required to obtain a degree in higher education then they should receive a pay increase. Better compensation, in turn, would lead to higher taxes; and many individuals view higher taxes as a burden on society. However, as a society shouldn’t we invest in police officers, given all the good they do to protect and serve? Paying for educated police officers should be a top priority. Don’t #[All]lives matter?

Ultimately, until there is a revived discussion about better ways to educate our police, and until these officers are better equipped with an understanding of the legal standards that they apply, police violence will surely continue.

[1] Illinois v. Gates, 462 U.S. 213, 232 (1983).

[2] Id.

[3] United States v. Humphries, 372 F.3d 653, 657 (4th Cir. 2004).

[4] Gates at 232 (1983).

[5] Terry v. Ohio, 392 U.S. 1, 27 (1968).

[6] Ybarra v. Illinois, 444 U.S. 85, 91 (1979).

[7]  Phillip Pantuso, Daniel Pantaleo: Basically An Average Cop

http://www.bkmag.com/2014/09/16/daniel-pantaleo-basically-an-average-cop/.

[8] John L. Hudgins, Require college degrees for police, The Baltimore Sun, September 30, 2014 at Commentary http://articles.baltimoresun.com/2014-09-30/news/bs-ed-police-degrees-20140930_1_college-education-educated-police-force-police-officers.

[9] Id.

[10] Jeffrey L. Sedgwick, U.S. Department of Justice, 2003 Bureau of Justice Statistics on Law Enforcement Management and Administrative Statistics, found online at http://www.bjs.gov/content/pub/pdf/lpd03.pdf.

[11] Commission on Accreditation for Law Enforcement Agencies Standards manual 1994, https://www.auroragov.org/cs/groups/public/documents/document/020596.pdf.

[12] Jason Rydberg & William Terrill, The Effect of Higher Education on Police Behavior, Police Quarterly 2010 13: 92, originally published online 3 January 2010. The online version of this article can be found a http://pqx.sagepub.com/content/13/1/92.

[13] Id.

[14] Id.

[15] Id.

[16] Id.

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