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=.

Environmental Justice By Samantha Pline

Environmental Justice

By

Samantha Pline

 

Recent events, like the Flint Water Crisis, have hammered home the need for a national Environmental Justice Policy. Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.[1] Fair treatment, in this context, “means that no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental and commercial operations or policies”.[2] “Meaningful involvement means that people have an opportunity to participate in decisions about activities that may affect their environment and/or health; the public’s contribution can influence the regulatory agency’s decision; their concerns will be considered in the decision making process; and the decision makers seek out and facilitate the involvement of those potentially affected”.[3]

The fair treatment of individuals’ environment matters greatly. Environmental justice goes hand-in-hand with equality. People depend on their environment for the basic necessities of life, like water and clean air. Without a policy in place to protect and ensure equal environmental access, then a huge deficit emerges in who has access to clean water or air, fishing, farm land, etc. But environmental justice isn’t just about major violations, like the water crisis in Flint, Michigan or the BP/Horizon Oil Spill, it is also about the day to day exposure to pesticides and chemicals. The people most exposed to pollution or to chemicals are the people that are working everyday in the factories or fields. Increasing protection for them, and their families, is one major step toward Environmental Justice.

There are a variety of different ways to tackle the problem of environmental justice, including governmental regulation, impact litigation, and grassroots movements. Much of our environmental awareness arises from movements during the 1960s that brought some of the most egregious environmental violations to light. Books like Rachel Carsons’ Silent Spring directly attacked the businesses and government agencies that were spraying pesticides everywhere in the country without thought to who was being hurt by the diseases.[4] Throughout the 1970s and 1980s, agencies like the EPA have tried to correct some of the worst environmental injustices with varying measures of success.[5]

In recent years, two major issues of environmental justice have arisen, access to clean water and clean air. In 1994, President Clinton issued an executive order to establish the National Environmental Justice Advisory Council (NEJAC).[6] The NEJAC was created to “obtain independent, consensus advice and recommendations from a broad spectrum of stakeholders involved in environmental justice”.[7] The NEJAC has propsed actions on environmental permitting, school air toxics monitoring, goods movement and air quality standards, and consultations with Indigenous communities.[8]

This work continued with Plan EJ 2014, “which is meant to mark the 20th anniversary of the signing of Executive Order 12898 on environmental justice”[9]. One of the agencies newest pushes is to place environmental actions into the hands of the community.[10] “Through Plan EJ 2014, EPA intends to develop a suite of tools to integrate environmental justice and civil rights into its programs, policies, and activities. It seeks to build stronger relationships with communities overburdened by environmental and health hazards and build partnerships that improve conditions in such communities.”[11]

So why does this all matter? “The environmental justice movement addresses a statistical fact: people who live, work and play in America’s most polluted environments are commonly people of color and the poor.”[12] “Communities of color, which are often poor, are routinely targeted to host facilities that have negative environmental impacts — say, a landfill, dirty industrial plant or truck depot. The statistics provide clear evidence of what the movement rightly calls ‘environmental racism.’”[13] Part of the Civil Rights of every American, is the right to a clean and healthy environment. A lack of awareness and attention to these problems have allowed them to fester in poor, underserved communities for too long. Disasters like the Flint water crisis, the BP/Deepwater Horizon oil spill, the continued problems with Fracking chemicals, and others headline problems, have made Environmental Justice a more acceptable topic for study. However, even without them, people need to continue to fight for this aspect of human rights. “Environmental justice continues to be an important part of the struggle to improve and maintain a clean and healthful environment, especially for those who have traditionally lived, worked and played closest to the sources of pollution.”[14]

[1] “Environmental Justice” epa.Gov http://www3.epa.gov/environmentaljustice/index.html (accessed Feb. 18, 2016).

[2] Id.

[3] Id.

[4] See Rachel Carson Silent Spring.

[5] The various EPA rules and regulations passed during this time can be found on the EPA home pages, at http://www.epa.gov/laws-regulations.

[6] See Exec. Order No. 12898,

[7] National Environmentla Justice Advisory Council Factsheet, Epa (July 2012), http://www3.epa.gov/environmentaljustice/resources/publications/factsheets/fact-sheet-nejac.pdf

[8] Id. See also, NEJAC Advice and Recommendations EPA (Oct. 20, 2015), http://www3.epa.gov/environmentaljustice/nejac/recommendations.html.

[9] Plan EJ 2014 EPA (Sept. 2011), http://www3.epa.gov/environmentaljustice/resources/policy/plan-ej-2014/plan-ej-2011-09.pdf.

[10] Id. at iv.

[11] Id. at vi.

[12] Renee Skelton and Vernice Miller, The Environmental Justice Movement, Nat’l Res. Def. Council (Oct. 12, 2006), http://www.nrdc.org/ej/history/hej.asp. (offers a good look at the history of the environmental justice movement).

[13] Id.

[14] Id.

Trump’s Islamophobia Will Take America Down a Path It Cannot Repeat By Robert Carter

Trump’s Islamophobia Will Take America Down a Path It Cannot Repeat

By

Robert Carter

Immigration has proven to be perhaps the most important issue of the 2016 presidential race, and a deciding factor in recent primaries. Immigration came squarely to the forefront when polarizing Republican candidate Donald Trump, in his campaign announcement speech, declared that “[w]hen Mexico sends its people, they’re not sending their best. [. . .] They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”[1]

Such a statement would end most campaigns. For a short time, it looked like it would end Trump’s. Republican presidential candidates and politicians including former Governor Jeb Bush, Senator Marco Rubio, former Governor Rick Perry, Senator Lindsey Graham, and former Governor Mitt Romney were all quick to condemn Trump’s statement.[2] Republican National Committee Director Sean Spicer said that Trump’s statement was “not helpful to the cause” of reaching out to Latino voters.[3] Univision, NBC, Macy’s, NASCAR, ESPN, and the PGA, among others, all terminated business relations with Trump within days of his statement.[4]

Rather than apologizing for his widely-condemned, racist, erroneous[5] characterization of undocumented Mexican immigrants as criminals and rapists, Trump doubled down, reiterating over and over again that undocumented Mexican immigrants “are, in many cases, criminals, drug dealers, rapists, etc.”[6] These comments should have destroyed his campaign, and many predicted that they would – that Trump was a joke candidate only in the race for publicity – but, nearly seven months later, Trump is coming fresh from major primary wins in New Hampshire and South Carolina.[7] Rather than alienating voters with his racist, divisive attack, Trump has instead tapped into a deep font of xenophobia and nativism that has propelled him to primary success.

Trump hasn’t confined his anti-immigrant rhetoric to Hispanic immigrants, however. In the wake of the devastating San Bernardino shooting committed by ISIS supporters, Trump infamously called for a ban on immigration and travel by all Muslims to the U.S., citing fears of jihadists and Sharia law.[8] The Trump campaign clarified that the proposed ban would apply to Muslim immigrants and tourists, but not to Muslim American citizens.[9] Although Trump’s travel ban would not apply to citizens, Trump also called in statements for increased surveillance on mosques and the creation of a database of Muslim Americans.[10] Far from shying away from his Muslim ban statements, Trump featured them in TV commercials in Iowa and New Hampshire.[11] Despite being almost universally condemned as impossible to implement and potentially racist, like his statements on undocumented Mexican immigrants, Trump’s statements on Muslims proved disturbingly popular. Three quarters of South Carolina Republican primary voters expressed support for the proposition in an exit poll.[12] Instead of damaging his campaign, Trump had once again bolstered his numbers by tapping a large, growing fear of Islam.

Trump’s statements are reflective of a burgeoning Islamophobia in America generally. Three Muslim students were shot dead in Chapel Hill, North Carolina in February 2015.[13] Two days later, a Houston mosque was burned down in a possible act of arson.[14] Al Jazeera America reported the verbal assault of two women in a Texas restaurant, the arson of a Somali restaurant in North Dakota, threats against a New Jersey mosque, and the beating of a Muslim shopkeeper in New York in the span of a few weeks.[15] On December 12, 2015, a robber in Grand Rapids, Michigan called a store clerk a “terrorist” before shooting him in the head.[16] Armed “protesters” intimidated worshippers at an Irving, Texas mosque and published the names and addresses of area Muslims online.[17] The Council on American Islamic Relations has recorded 75 acts of violence or discrimination against Muslims between November 2015 and the first of this month.[18] Making up less than one percent of the American population, Muslim Americans are an easy and vulnerable target for bigotry.

The rising tide of Islamophobia in America brings Trump’s seemingly-bombastic Muslim ban into the terrifying realm of possibility. Even worse, is that the law might actually allow it. Congress enjoys what is referred to as “plenary power” over immigration, which gives Congress practically unlimited power to deny foreigners entry into the U.S. The Supreme Court has described this power saying, “[w]hatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned.”[19] In 1889, the Supreme Court upheld a statute, referred to as the Chinese Exclusion Act, which prohibited the entry of Chinese workers into the U.S., saying “[t]he power of exclusion of foreigners [. . .] when, in the judgment of the government, the interests of the country require it, cannot be granted away or restrained on behalf of any one.”[20] Despite the seeming adversity of this precedent and the extreme deference to Congress’s immigration power, it has been well over 100 years since Chae Chan Ping was decided, and the Court is well aware today of the shameful mark left on American history by anti-Chinese legislation. The Court has noted that the plenary power over immigration law is “limited by the Constitution itself and considerations of public policy and justice which control, more or less, the conduct of all civilized nations.”[21] This proposition has never been construed to deny Congress the right to remove aliens, but given the strongly supported proposition that emerged in the twentieth century – that racial classifications are “odious to a free people”[22] and subject to “the most rigid scrutiny”[23] – there is a distinct possibility that the modern Court would find that arbitrary and naked racial or religious tests for admission into the U.S. are the exact sort of conduct that is repugnant to all civilized nations.

Trump’s proposed ban on Muslim immigration is the exact sort of bigotry that fuels the harmful narrative that the West is at war with Islam – that there is an inevitable clash of civilizations, which plays straight into the hands of terrorist recruiters. More dangerously, this type of rampant Islamophobia threatens the rights of American Muslims and immigrants with open racial and religious discrimination. The specters of slavery, Indian removal, and Japanese internment will always hang like a dark cloud over the home of the free and the land of the brave. We should be careful not to add more to that shameful list.

[1] Michelle Ye Hee Lee, Donald Trump’s False Comments Connecting Immigrants and Crime, Wash. Post (July 8, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/07/08/donald-trumps-false-comments-connecting-mexican-immigrants-and-crime/.

[2] Esther Yu-Hsi Lee, What Republican Leaders Have to Say About Donald Trump, Think Progress (July 6, 2015), http://thinkprogress.org/immigration/2015/07/06/3676622/donald-trump-republicans-stance/.

[3] Id.

[4] Dara Lind, The Real Costs of Donald Trump’s Anti-Mexican Slur Controversy, Explained, Vox (July 8, 2015), http://www.vox.com/2015/7/8/8911467/donald-trump-immigrants-boycott.

[5] See, e.g., Lee, supra note 1; Jessica Vaughan & Steven A. Camarota, Immigration and Crime: Assessing a Conflicted Issue, Ctr. for Immigr. Studies (Nov. 2009), http://cis.org/ImmigrantCrime; Phillip Bump, Surprise! Donald Trump is Wrong About Immigrants and Crime, Wash. Post (July 2, 2015), https://www.washingtonpost.com/news/the-fix/wp/2015/07/02/surprise-donald-trump-is-wrong-about-immigrants-and-crime/.

[6] Lee, supra note 1.

[7] Stephen Collinson & Maeve Reston, Donald Trump, Hillary Clinton Win Big; Jeb Bush Drops Out, CNN (Feb. 21, 2016), http://www.cnn.com/2016/02/20/politics/republicans-south-carolina-primary-highlights/.

[8] Donald J. Trump Statement on Preventing Muslim Immigration, Trump (Dec. 7, 2015), https://www.donaldjtrump.com/press-releases/donald-j.-trump-statement-on-preventing-muslim-immigration.

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

[10] Id.

[11] Trump Revisits Muslim Ban In First TV Ad, Al Jazeera America (Jan. 5, 2016), http://america.aljazeera.com/articles/2016/1/5/trump-revisits-muslim-ban-in-first-tv-ads.html.

[12] Jonathan Easley, SC Exit Poll: 75 Percent Agree With Trump’s Muslim Ban, The Hill (Feb. 20, 2016), http://thehill.com/blogs/ballot-box/presidential-races/270156-sc-exit-poll-75-percent-agree-with-trumps-muslim-ban.

[13] Jonathan M. Katz, In Chapel Hill, Suspect’s Rage Went Beyond a Parking Dispute, N.Y. Times (Mar. 3, 2015), http://www.nytimes.com/2015/03/04/us/chapel-hill-muslim-student-shootings-north-carolina.html.

[14] Wilson Dizard, Arson Eyed In Houston-Area Mosque Fire, Al Jazeera America (Feb. 13, 2015), http://america.aljazeera.com/articles/2015/2/13/arson-eyed-in-houston-area-mosque-torching.html.

[15] Wilson Dizard, US Muslims Experience Rise in Islamophobia, Al Jazeera America (Dec. 9, 2015), http://america.aljazeera.com/articles/2015/12/9/us-muslims-experience-surge-in-islamophobic-attacks.html.

[16] John Agar, Robber Called Store Clerk ‘Terrorist’ Before Shooting Him in the Face, Worker Says, Mich. Live (Dec. 14, 2015), http://www.mlive.com/news/grand-rapids/index.ssf/2015/12/robber_called_store_clerk_terr.html.

[17] Justin Moyer, Armed Anti-Muslim Protesters Stage “Strange” Protest Outside Mosque in Clock Kid’s Hometown, Wash. Post (Nov. 23, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/11/23/armed-anti-muslim-protesters-stage-strange-protest-outside-mosque-in-clock-kids-hometown/; Niraj Chokski, Man Who Led Armed Protest at Texas Mosque Publishes List of Muslims’ Home Addresses, Wash. Post (Nov. 27, 2015), https://www.washingtonpost.com/news/morning-mix/wp/2015/11/27/man-who-led-armed-protest-at-texas-mosque-publishes-list-of-muslims-home-addresses/.

[18] Wilson Dizard, Poll: Muslim Voters Says Islamophobia Top Issue in Primaries, Al Jazeera America (Feb. 1, 2016), http://america.aljazeera.com/articles/2016/2/1/poll-of-muslim-voters.html.

[19] U.S. ex rel. Knauff v. Shaughnessy, 338, U.S. 537, 544 (1950).

[20] Chae Chan Ping v. United States, 130 U.S. 581, 609 (1889).

[21] Zadyvas v. Davis, 533 U.S. 678, 695 (2001).

[22] Loving v. Virginia, 388 U.S. 1 (1967).

[23] Id.

Legal Context of the Recent iPhone Order By Chris Saville

Legal Context of the Recent iPhone Order

By

Chris Saville

 

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

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

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

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

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

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

 

 

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

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

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

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

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

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

[7] 28 U.S.C.A. § 1651 (2012).

[8] Bruce Schneider, supra note 4.

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

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

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

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

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

[14] Id.

[15] Id.

[16] Id. at 5.

[17] Id. at 5.

[18] Id. at 5.

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

[20] Bruce Schneider, supra note 4.

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

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

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

[24] Tim Cook, supra note 6.

[25] Tim Cook, supra note 6.

[26] Tim Cook, supra note 6.

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