November 5, 2012
Johnson & Ingram on Hate Crimes and Immigration Reform
Kevin R. Johnson and Joanna Cuevas Ingram (University of California, Davis - School of Law and University of California, Davis - School of Law) have posted Anatomy of a Modern Day Lynching: The Relationship between Hate Crimes Against Latina/os and the Debate over Immigration Reform (North Carolina Law Review, Forthcoming) on SSRN. Here is the abstract:
This is a contribution to a symposium in the North Carolina Law Review on "Race Trials." For more than a decade, Congress unfortunately has been unable to pass legislation meaningfully reforming and improving the current immigration system. For reasons that will be laid out in the following pages, we unfortunately conclude that, absent such reform as well as other measures, the United States can expect racially-charged rhetoric, at times erupting in violence, to continue to sporadically grab the national headlines. Effective immigration reform might help ameliorate the civil rights costs of the current immigration enforcement scheme.
While waiting for Congress to act, the nation should take steps to ensure that the justice system effectively, efficiently, and fairly responds to civil rights deprivations, including hate crimes against Latina/os and immigrants. Besides responding to civil rights deprivations linked directly and indirectly to the enforcement of the current immigration laws, the measures would help generally improve the justice system’s responses to racially-charged cases.
Our contribution to the “Race Trials” symposium considers the protracted legal battles to bring justice to the perpetrators of the killing of a young Mexican immigrant in rural Pennsylvania. From that sensational case, we attempt to draw more general civil rights lessons. The article specifically contends that hate crimes directed at Latina/os, which have been at consistently high levels for the entire twenty-first century, are in no small part tied to the prolonged -- and overheated -- national debate over immigration.
History offers lessons about today’s hate violence directed against immigrants and Latino/as. As the terrorism of African Americans by the Ku Klux Klan for the century following the Civil War aptly demonstrates, hate violence has long been employed to maintain unequal power relationships in U.S. society, specifically racial subordination by whites of minority groups. Nor was such terrorism limited to the notorious Klan. Whippings, beatings, and lynchings of Blacks throughout the twentieth century by ordinary citizens were part and parcel of a concerted effort to ensure the survival of Jim Crow.
We in no way mean to suggest that the violence against Latina/os is identical to the unbridled terrorism directed at African Americans before and after the abolition of slavery for hundreds of years in the United States. That violence, however, serves a similar function of attempting to maintain racial hegemony in times of change and ferment.
At the dawn of the new millennium, Latina/o migration is figuratively and literally changing the face of communities across the country. These changes have brought forth responses. Hate crimes against Latina/os and immigrants, in addition to a racially-charged debate over immigration and the proliferation of state immigration enforcement laws, represent a troubling response to the changing racial demographics of the United States.
Part I of the article offers background surrounding the divisive national debate over immigration reform. Part II provides the context surrounding the tragic killing of a Mexican immigrant by a group of white teenagers in rural Pennsylvania, as well as the subsequent state and federal efforts to punish the wrongdoers and local police who sought to cover up the crime and shield the teens from criminal prosecution. As we shall see, although the U.S. government’s efforts yielded decidedly mixed success, they nonetheless demonstrated a meaningful, visible public commitment to bringing justice to the wrongdoers.
Part III of the article outlines a variety of possible reforms that might help punish and deter hate violence directed at Latina/os and immigrants. The prescriptions all center on the need to address the deeply corrosive influence of race on the debate over immigration and, more generally, on the modern American justice system. They range from broad measures such as the enactment of comprehensive immigration reform to more focused remedies such as creating procedures designed to better enforce the ban on race-based preemptory challenges in jury selection.
Mosteller on the Sixth Amendment Right to Fairness
Robert P. Mosteller (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted The Sixth Amendment Rights to Fairness: The Touchstones of Effectiveness and Pragmatism (45 Texas Tech Law Review, Volume 1, 2012) on SSRN. Here is the abstract:
The Sixth Amendment is aptly described by Akhil Amar as the “heartland of constitutional criminal procedure.” It is a major part of the Framers’ designed to ensure a fair trial and provides the opportunity for the accused to challenge the prosecution’s case and to demonstrate innocence. However, as woeful inadequate funding for indigent defense undercuts the reality of the constitutional right to counsel and as trials become more and more rare, a broader focus is needed.
In a time in which it is painfully obvious that we have limited resources available to meet public needs and a reticence to extend legal doctrines, those interested in progressive reform should look beyond developing new legal doctrine. The fundamental Sixth Amendment interest in fairness can be furthered by administrative mechanisms and aided by actors in the criminal justice system beyond defense attorneys. The victories may not be stirring or draw public note, but for the individuals not prosecuted or incarcerated erroneously, they can be extraordinarily significant and fulfill the basic promise of the Sixth Amendment.
November 4, 2012
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